Hamer v. Belgium

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 102

November 2007

Hamer v. Belgium - 21861/03

Judgment 27.11.2007 [Section II]

Article 6

Criminal proceedings

Article 6-1

Criminal charge

Proceedings resulting in the demolition of a house built without planning permission: article 6 applicable

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Holiday home whose destruction was only ordered several decades later after it was discovered that it had been built without planning permission: article 1 of Protocol No. 1 applicable

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Order for the demolition of a holiday home built in woodlands to which a ban on building applied: no violation

Facts: In 1967 the applicant’s parents built a holiday home on a piece of land without planning permission. When the applicant’s mother died, the deed concerning the partition of the estate with her father expressly mentioned the existence of the building and was registered by the authorities, who charged a registration fee. When the applicant’s father died the notarial deed of partition expressly mentioned the house as a holiday home and the applicant paid the corresponding inheritance tax. Every year she paid an advance on tax payable on immovable property and the property tax payable on a second home. The partly government-controlled water supply company connected the house to the mains without any reaction from the authorities. Not until 1994 did the police draw up two reports, one concerning the felling of trees on the property in violation of forestry regulations, and one for building a house without planning permission in a woodland area where no planning permission could be granted. In 1999 the applicant was summoned by the public prosecutor for having a weekend home that had been built without permission, and for felling about fifty pine trees in violation of the Forestry Decree. The Criminal Court acquitted the applicant. The prosecuting authorities appealed and the Court of Appeal upheld the judgment in so far as it acquitted the applicant on the tree-felling count. However, it found her guilty of keeping a house built without authorisation, by virtue of a decree on the organisation of regional development. Noting that the proceedings had taken longer than was reasonable, the Court of Appeal simply declared the applicant guilty and ordered her to restore the site to its original state, which meant demolishing the house. The applicant lodged an appeal on points of law, but to no avail. The Court of Cassation did not consider having to restore the site to its original state as a penalty but as a civil measure. The house was demolished pursuant to an enforcement order.

Law: Article 6 § 1 (reasonable time) – The fact that the Court of Appeal had pronounced a simple declaration of guilt against the applicant in view of the excessive length of the proceedings did not make her any less a “victim” in so far as that court had ordered her at the same time to restore the site to its original state.

Article 6 was applicable under its criminal limb as the demolition measure could be considered a “penalty” for the purposes of the Convention.

While the length of the proceedings on the merits did not appear unreasonable (they had taken a little over three and a half years for three levels of jurisdiction), the police report noting the unlawful nature of the construction marked the time from which the applicant had been “accused” within the meaning of the case-law and from which the reasonable time ran. The proceedings had therefore taken between 8 and 9 years for three levels of jurisdiction, including 5 years at the investigation stage, although the case had not been a particularly complex one.

Conclusion: violation (unanimously).

Article 1 of Protocol No. 1 – The construction at issue had existed for twenty-seven years before the domestic authorities had reported the offence. Reporting infringements of spatial planning legislation was irrefutably the responsibility of the authorities, as was making the requisite resources available to do so. The Court was even able to consider that the authorities had been aware of the existence of the construction at issue as the corresponding taxes had been paid. In short, the authorities had tolerated the situation for twenty-seven years and there had been no change for another ten years after the offence had been reported. After such a long period of time, the applicant’s proprietary interest in using her holiday home had been sufficiently great and established to constitute a substantive interest and, therefore, a “possession”, and she had had a “legitimate expectation” that she could go on using her property. The interference with the applicant’s right to the peaceful enjoyment of her property that resulted from the demolition of her house by order of the authorities had been provided for by law and pursued the aim of controlling the use of property in accordance with the general interest, by bringing the property concerned into conformity with a land-use plan establishing a woodland area on which no building could be authorised.

Concerning the proportionality of the interference, the Court pointed out that the environment had a value, and that economic imperatives and even certain fundamental rights, such as property rights, should not take precedence over environmental considerations, particularly when the State had passed laws on the subject. The public authorities then had a responsibility to take the necessary steps at the proper time to ensure that the environmental protection measures they had decided to implement were not rendered ineffectual. Restrictions on property rights were therefore permissible, provided, of course, that a reasonable balance was struck between the individual and collective interests involved.

The disputed measure had pursued the legitimate aim of protecting a woodland area where no building was permitted. The owners of the holiday home had been able to enjoy it in peace for a total uninterrupted period of thirty-seven years. The official documents, the taxes paid and the work done indicated that the authorities knew or should have known about the existence of the house for a long time, and once the offence had been reported, they had let another five years go by before prosecuting, thereby helping to perpetuate a situation which could only be prejudicial to the protection of the woodland area the law was meant to protect.

However, there was no provision in Belgian law for regularising a building erected in such a woodland area. The offence was not subject to limitation under Belgian law and the authorities were free to decide at any time to enforce the law. No measure other than restoring the site to its original state had seemed appropriate because of the undeniable interference with the integrity of a woodland area where no building was permitted. Furthermore, unlike the position in cases where there was implicit consent on the part of the authorities, this house had been built without any official authorisation. For those reasons the interference had not been disproportionate.

Conclusion: no violation (unanimously).

Article 41 – EUR 5,000 in respect of non-pecuniary damage.

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