The ECHR found a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 8 of the Convention for the Protection of Human Ri Сведения: 2020-03-31 06:37:29

ECHR judgment of May 16, 2019 in the case of Halabi v. France (application No. 66554/14).

In 2014, the applicant was assisted in preparing the application. Subsequently, the application was communicated to France.

The case has successfully considered a complaint about a city-planning inspection in a partially furnished residential building without the prior consent of the person living in it or the sanction of the court. The case contained a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


Circumstances of the case


The applicant is a national of the United Kingdom and lives in London. In November 2006, the company that owned the castle received permission to attach a greenhouse and an external staircase to it. The company also notified the authorities about the project for the construction of a technical room. In March 2009, two employees of urban planning services conducted an on-site inspection, based on which a protocol of violation was drawn up: instead of the facilities mentioned above, two residential premises and a gym were built. In December 2010, a new audit was carried out, which also culminated in a protocol in which the applicant was indicated as a “tenant”.

The applicant contested the first protocol as based on an encroachment on his home, since the verification was carried out in his absence and without obtaining his consent. The court rejected this argument on the grounds that during the inspection no one claimed that the place of inspection was his or her place of residence and that, in view of the claimed project, it was not assumed that the staff should enter the premises. The Court of Cassation agreed with these findings, indicating that coercion could not be applied in this type of inspection and that in the event of obstacles to the inspectors, appropriate sanctions could only be imposed by a court authorized to consider the validity of the inspection.

In 2017, the court found the applicant and the company guilty of erecting an unauthorized building and sentenced them to a fine, as well as ordered the object to be restored to proper condition. Nevertheless, the administration issued another construction permit, by which the disputed structures were legalized.


QUESTIONS OF LAW


Regarding compliance with article 8 of the Convention. (a) Applicability. The object in respect of which the check was carried out should be considered as the "home" of the applicant, for the following reasons:

- despite the fact that he was neither the owner nor the tenant (since all his property was invested in the authorized capital of various legal entities), this premises was his second place of residence for holidays with his family and for meetings with business partners during long periods of stay. In addition, the French authorities regarded the applicant as a tenant in the preparation of the second protocol and even to the extent of his prosecution;

- disputed premises were an integral part of the main structure as a whole, and the latter was clearly a residential building. The Italian dome, which was erected in memory of the applicant’s deceased son, testified to his strong emotional connection with this place;

- some of the rooms visited by employees of urban planning services were already furnished, decorated and equipped, including everyday items, such as hygiene products and towels: by going into these rooms, employees entered a certain physical space where personal and applicant's family life.

(b) Merits. (i) A dispute over civil rights and obligations. Of course, inspections carried out by employees of urban planning bodies do not inherently pose the same degree of risk of an encroachment on respect for rights to housing and personal life as inspections by place of residence carried out by other authorities (customs, tax and so on) that can lead to the seizure of many documents, data or items and revealing more information about the person concerned. However, in the present case, the Court considers that the penetration of state officials into the applicant’s home without his permission, as well as photographing the internal parts of the premises, which the applicant used for activities related to his personal life, constituted an interference with the applicant’s rights.

(ii) The legal basis for verification and the legitimate aim pursued. The inspections of completed or unfinished construction objects provided for in Article L. 461-1 of the Town Planning Code were intended to establish the conformity of work to the issued permits and to confirm the absence of violations of town planning norms. The goals pursued in this way (protecting the environment, preventing public order violations, ensuring the health and safety of persons) could be attributed to several legitimate goals provided for in Article 8 of the Convention.

(iii) The need for a democratic society. When the check is carried out at a construction site or at a facility under construction, it contains fewer risks of encroachment on respect for housing. The Town Planning Code permits such inspections to be carried out for three years prior to completion of construction.

It appears that in the present case the conduct of the audit was well-founded, since the French courts had indeed convicted the applicant of several offenses. In addition, since a building permit was issued according to which the situation was legalized, the consequences of the interference with the applicant's use of his home were limited.

Although the strict criteria applicable to searches and seizures were not applicable in the present case, it was necessary to verify that there were sufficient and effective safeguards against abuse. However, the Town Planning Code allowed inspections in residential premises at any time and in the absence of a judicial police officer, and also clearly did not require the consent of the tenants or the prior permission of the judge.

Indeed, the absence of powers by authorized officials to use coercion prevents them from entering the home without the consent of the tenants under the threat of criminal punishment. Nevertheless, the obligation to obtain the tenant’s consent is not provided for by law, it is mentioned only in the answers of the relevant ministries. On the other hand, the possibility for a tenant to prevent this check is purely theoretical, since in accordance with another article of the Town Planning Code, resistance to the check is punishable by criminal law.

As regards the remedy which, under French law, allows an appeal against the verification protocol, it appears to be devoid of any useful effect in order to protect the inviolability of the home, since the French courts in the present case refused to declare the protocol invalid on this basis.

In the present case, it was impossible to invoke the risk of destroying evidence of an offense in order to substantiate these shortcomings: in the field of urban planning, such a risk is small. Consequently, in view of the absence of the applicant’s consent or the availability of judicial authorization and, especially, the lack of an effective remedy, the impugned check was not proportionate to the aim pursued.


RESOLUTION


In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).

In application of Article 41 of the Convention. Since the applicant did not submit a claim for just satisfaction, the Court did not award him any amounts under this head.

 

 

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