CEDH · CASELAW;CLIN;ENG — 11 octobre 2011

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Switzerland - 48848/07 Judgment 11.10.2011 [Section II] Article 11 Article 11-1 Freedom of association Dissolution of squatters’ association: violation Facts – According to its articles of association, the aim of the applicant association was to provide its members – who were squatters – with affordable community-based housing. To this end it unlawfully occupied buildings. As part of its activities the association had, since 1988, occupied several empty buildings, including fourteen flats located in three blocks of flats, most of which had stood vacant for some time. The owners of the flats requested the Principal Public Prosecutor to order the squatters’ eviction, and their request was granted. However, the eviction orders were never enforced owing to a local policy of tolerating the presence of squatters as long as the owners of the blocks of flats did not have a building or renovation permit. The occupied blocks of flats required renovation so that the owners could rent the flats out again. Starting in 1992 the owners, who had given up seeking the squatters’ eviction, made various unsuccessful attempts to negotiate the sale of the buildings or the conclusion of a long-term lease with the association. In 2002 they applied for building permits in order to carry out the renovation work. After various sets of proceedings brought by the association and the squatters challenging the applications, final building permits were granted in September 2005. The Principal Public Prosecutor therefore ordered the occupied buildings to be vacated as work was scheduled to begin in November 2005. Following parallel proceedings, the court of first instance, at the owners’ request, ordered the dissolution of the association in 2006 with immediate effect. On appeal, the Court of Justice upheld the dissolution order but gave it retrospective effect. This had significant financial implications for the members, since the association was deemed never to have existed. In 2007 the Federal Court rejected the appeals lodged by the association. The liquidator appointed by the court of first instance adopted several measures, including freezing the association’s post office and bank accounts. In July 2007 the owners regained possession of the blocks of flats. The operation to evict the occupants with police assistance is the subject of another application pending before the European Court. Law – Article 11: The impugned measure had consisted in the wholesale dissolution of the association. This was a severe measure that had significant financial implications for its members and could be tolerated only in very serious circumstances. With regard to the legitimate aim of protecting the rights of others, it was clear from the various sets of proceedings brought by the owners that they had sought the dissolution of the association after attempting unsuccessfully to secure the squatters’ eviction. However, the dissolution of the association, which was essentially a legal act, had not by itself put an end to the occupation of the buildings, judged to be unlawful. Accordingly, it could not be claimed that the measure in question had been aimed in a practical and effective manner at protecting the owners’ rights. Nor was the Court satisfied that the dissolution of the association had been necessary in order to prevent disorder, even assuming that the association or its activities had disturbed public order since its establishment in 1988. Consequently, regard being had to the fact that the occupation of the buildings had been tolerated for a long time by the authorities, and to the organisation’s aims as set out in its articles of association, the respondent Government had not adequately demonstrated that its dissolution, which had impaired the very essence of the right to freedom of association, had been the only available means of achieving the authorities’ aims. In the Court’s view, other measures could have entailed a less serious infringement of the rights guaranteed by Article   11. Accordingly, the interference could not be said to have been proportionate to the aims pursued. Conclusion : violation (unanimously). Article 41: The transfer of the association’s property to the authorities had clearly been a direct consequence of its dissolution. The Court did not share the Government’s view that the applicants should make an application for review to the domestic courts in order to claim compensation for the pecuniary damage sustained. It awarded the applicants jointly the sum of EUR 65,651 (corresponding to the association’s assets at the time of its dissolution) in respect of pecuniary 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