CEDH · CASELAW;CLIN;ENG — 16 mai 2019

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France - 66554/14 Judgment 16.5.2019 [Section V] Article 8 Article 8-1 Respect for home Inspection by planning officials of partially furnished residential premises, without prior consent from the occupier or judicial authorisation: violation Facts – The applicant is a British national resident in London. In November 2006 a company owning a château was granted a building permit to add a greenhouse and an outside staircase; it had also given notice of plans to build a mechanical room. In March 2009 two sworn officials from the Planning Department carried out an inspection, concluding by issuing a report on a breach of planning regulations in that instead of the above-mentioned facilities, two flats and a gym had been built. In December 2010 a further inspection led to another report of a planning breach in which the applicant was designated as the “occupier of the premises”. The applicant challenged the initial report, arguing that it had resulted from an interference with his home as the inspection had taken place in his absence and without his consent. The competent court dismissed this ground of nullity, finding that nobody had claimed the premises as their home at the time of the inspection, and that in view of the plans that had been declared, the inspecting officials had not been expected to enter residential premises. The Court of Cassation found no fault with this conclusion, holding that inspections of this kind did not allow the use of coercion and that the sanctions applicable in the event of obstruction of the right to inspect premises could only be ordered by a court with jurisdiction to assess the lawfulness of the inspection. In 2017 the applicant and the company were found guilty of carrying out building work not corresponding to the prior declaration and were fined and ordered to bring the premises into conformity with the plans. Nevertheless, the authorities issued an amended building permit regularising the constructions in question. Law – Article 8 (a)     Applicability – The following reasons justified treating the property subject to the inspection as the applicant’s “home”: –     although he had been neither the owner nor the tenant (all of his family’s property being owned by companies), he had used the property as a second home for family holidays and for receiving extended visits from business contacts, and indeed the national authorities had also treated him as the occupier of the premises in the second report of a breach and up to the time of his conviction; –     the premises forming the subject of the inspection had been an inseparable annex to the main, indisputably residential, property on the same site; moreover, the Italian dome erected in memory of the applicant’s deceased son served as proof of a strong emotional link with this home; –     some of the rooms visited had already been furnished, decorated and fitted, even containing everyday items such as personal hygiene products and bath towels; in accessing those rooms, the planning officials had entered a physically defined space where the applicant’s private and family life could develop. (b)     Merits (i)     Interference – Admittedly, by their very nature, inspections by planning officials did not entail the same degree of risk of an interference with the right to respect for the home and private life as home searches carried out by other authorities (for example, customs or tax officials), which could lead to the seizure of large quantities of documents, data or objects and the disclosure of more extensive information about the person concerned. In the present case, however, the Court considered that the entry of public officials into the applicant’s home without his permission, and the taking of photographs inside a space used by him for activities forming part of his private life, had indeed constituted an interference. (ii)     Legal basis for the inspection and legitimacy of the aim pursued – Inspections of building work in progress or after completion, provided for by Article L.   461-1 of the Planning Code, were designed to ensure that the work complied with the permits issued and that there were no breaches of planning regulations. The aims thus pursued (environmental protection, prevention of nuisance, and ensuring people’s health and safety) could be connected to several legitimate aims recognised by Article   8. (iii)     Necessity in a democratic society – When an inspection was carried out at a building site or at premises undergoing building work, there was less risk of interference with the right to respect for the home. However, the Planning Code also authorised such inspections up to three years after the completion of the work. In this case, the inspection had in fact proved justified as the courts had found the applicant guilty of several breaches. Furthermore, since an amended building permit regularising the work had been issued, the consequences of the interference in terms of the applicant’s enjoyment of his home had been limited. Although the relatively strict principles established in relation to searches and seizures were not applicable as such in this instance, there was still a need to ensure that there had been sufficient and effective safeguards against abuse. The Planning Code authorised home visits at any time and without a senior police officer being present, without explicitly requiring the occupier’s consent or prior judicial authorisation. Admittedly, the lack of coercive powers enjoyed by the authorised officials meant that they were prohibited from entering the premises, on pain of criminal sanctions, if the occupier refused them access. Nevertheless, the obligation to obtain the occupier’s consent was not laid down by law and had only been referred to in replies by ministers to parliamentary questions. Moreover, the possibility for the occupier to object to a visit of this kind was purely theoretical, given that another Article of the Planning Code provided that obstruction of the right to inspect premises was punishable by criminal sanctions. As regards the remedy available under domestic law in respect of the report on the inspection, it appeared entirely ineffective as a means of asserting the inviolability of the home, since the courts examining this issue in the present case had refused to declare the report void on that basis. The risk of deterioration of the evidence of the breach could not be relied on to justify these failings, since in matters relating to planning, such a risk was very low. Accordingly, in the absence of the occupier’s consent or judicial authorisation, and a   fortiori in the absence of an effective remedy, the inspection complained of had not been proportionate to the legitimate aims pursued. Conclusion : violation (unanimously). Article 41: no claim made in respect of damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes