CEDH · PRESS;GCJUDGMENTS;ENG — 29 mars 2010

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France (no. 34044/02) Brosset-Triboulet and Others v. France (no. 34078/02)     BY ORDERING THE DEMOLITION OF HOUSES BUILT ON MARITIME PUBLIC PROPERTY FRENCH AUTHORITIES DID NOT VIOLATE THE CONVENTION   No Violations of Article   1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights     Principal facts   In the first case the applicant, Louis Depalle, is a French national who was born in 1919 and lives in Monistrol d’Allier (France). In the second case the applicants are two French nationals, Mrs Ijjo Brosset-Triboulet, who was born in 1935 and lives in Sainte-Croix-Grand-Tonne (France), and Mrs Eliane Brosset-Pospisil, who was born in 1938 and died in 2008. [2]   In the first case Louis Depalle and his wife purchased by notarial deed in1960 a dwelling house in the municipality of Arradon (the Morbihan département ). The house was built on land on the seashore falling within the category of maritime public property. At the time of purchase, occupancy of the public land was authorised by a decision of the Prefect of Morbihan that had been made in favour of the former occupants in consideration of payment of a charge. That authorisation was regularly renewed, by a prefectoral decision in favour of the applicant and his wife, until 31 December 1992.   Those prefectoral decisions specified that the authorities reserved the right to modify or withdraw the authorisation should they deem it necessary, on any ground whatsoever, and without compensation. The decisions also stated that the applicant and his wife must, if required by the relevant authority, restore the site to its original state. For centuries French law has provided that maritime public property cannot be appropriated for private ends (it is inalienable and not subject to limitations).   In September 1993 the Prefect of Morbihan refused to renew the authorisation to occupy public property following the entry into force of the Act of 3 January 1986 on the Development, Protection and Enhancement of Coastal Areas (known as “the Coastal Areas Act”). However he offered Mr and Mrs Depalle the possibility of signing an agreement with the State authorising them to remain on the site for their lifetime, on condition that they did not undertake any works other than maintenance. The agreement prohibited the sale or transfer of the land and house to third parties.   The second case concerns similar facts. In 1945 the applicants’ mother had acquired, by way of a gift, drawn up before a notary and published in the Vannes Mortage Registry, a dwelling house in the municipality of Arradon falling within the category of maritime public property. The successive occupants of the plot of land had been granted authorisation by the prefect to occupy the site and this had been systematically renewed since 25 September 1909. The last decision authorising occupancy, which had been granted to the applicants’ mother, had expired on 31 December 1990. On 6 September 1993, on account of the entry into force of the Coastal Areas Act, the Prefect of Morbihan refused to renew authorisation to occupy the site and offered to enter into an agreement with the applicants’ mother on the same lines as had been proposed to Mr and Mrs Depalle.   In both cases the applicants rejected the Prefect’s proposals and, following the Prefect’s refusal to simply renew the decisions authorising occupation of public property, sought judicial review of the Prefect’s decision in the Rennes Administrative Court. The Prefect, for his part, when confronted with the applicants’ refusal to regularise their position as unlawful occupants of public property, brought proceedings against them before the same court for unlawful interference with the highway and sought an order against them to restore the seashore at their own expense and without prior compensation. After the Rennes Administrative Court and the Nantes Administrative Court of Appeal had ruled in favour of the authorities, the Conseil d’État adopted a judgment on 6 March 2002 in both cases in which it found that the properties in question did indeed fall within the category of maritime public property, that the applicants could not therefore rely on any real property right over those dwellings and that, accordingly, the obligation to restore the properties to their original state without compensation was not a measure prohibited by Article 1 of Protocol No. 1 to the European Convention on Human Rights.   The houses have not yet been demolished to date.   Complaints, procedure and composition of the Court The applicants submitted that the obligation imposed on them to demolish the houses at their own expense and without compensation was not compatible with their rights under Article 1 of Protocol No. 1 (protection of property) to the Convention and of Article 8 (right to respect for home). The applications were lodged with the European Court of Human Rights on 4 September 2002. On 25 September 2008 the Chamber to which the cases had been allocated relinquished jurisdiction in favour of the Grand Chamber under Article 30 [3] of the Convention. On 11 February 2009, a hearing was held in public at the Human Rights Building, Strasbourg. Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Nicolas Bratza (the United Kingdom), President Jean-Paul Costa (France), Peer Lorenzen (Denmark), Françoise Tulkens (Belgium), Josep Casadevall (Andorra), Karel Jungwiert (Czech Republic), Nina Vajić (Croatia) Rait Maruste (Estonia), Anatoly Kovler (Russia), Ljiljana Mijović (Bosnia and Herzegovina), Renate Jaeger (Germany), David Thór Björgvinsson (Iceland), Ineta Ziemele (Latvia), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), George Nicolaou (Cyprus), Zdravka Kalaydjieva (Bulgaria), Judges ,   and Michael O’Boyle, Deputy Registrar .     Decision of the Court   Complaint relating to the right of property (Article 1 of Protocol No.   1)   The Court accepted, first of all, that the applicants owned “possessions” within the meaning of Article 1 of Protocol No.   1 and that their complaints based on that Article therefore had to be examined on the merits. Whilst the authorisations to occupy public property had not given them real property rights over public property, the time that had elapsed had had the effect of vesting in them a proprietary interest in peaceful enjoyment of the house.   On the merits, the Court reiterated that the Convention recognised the right of Contracting States to control the use of property in accordance with the general interest, on condition that the right of property was respected. In these cases the non-renewal of decisions authorising occupancy of public property and the orders to demolish the houses could be seen as representing control over the use of property in accordance with the general interest of promoting free access to the shore. The role of the Court was to ensure that a “fair balance” was achieved between the demands of the general interest of the community and those of the applicants, who wanted to keep their house. In determining whether this requirement was met, the Court recognised that the State enjoyed a wide discretion in its decision-making, particularly in a case, like the present one, concerning regional planning and environmental conservation policies where the community’s general interest was pre-eminent.   After analysing the arguments submitted by the applicants and the State in support of their respective positions, the Court held, that the applicants could not justifiably claim that the authorities’ responsibility for the uncertainty regarding the status of their houses had increased with the passage of time. On the contrary, they had always known that the decisions authorising occupation of the public property were precarious and revocable. The tolerance shown towards them by the State did not alter that fact.   The applicants, who maintained that the houses were part of the national heritage and did not in any way impede access to the shore, were not justified either in claiming that the measures imposed on them ran counter to the general interest. On that point the Court reiterated that it was first and foremost for the national authorities to decide which type of measures should be imposed to protect coastal areas.   It went without saying that after such a long period of time demolition would amount to a radical interference with the applicants’ “possessions”. However (and the applicants had, moreover, not disproved this), this was part and parcel of a consistent and rigorous application of the law given the growing need to protect coastal areas and their use by the public, and also to ensure compliance with planning regulations.   The Court noted further that the applicants had refused the Prefect’s proposals to continue enjoying the houses subject to conditions. Those proposals, which did not appear unreasonable, could have provided a solution reconciling the competing interests.   The Court added lastly that the lack of compensation could not be regarded as a disproportionate measure used to control the use of the applicants’ properties, carried out in pursuit of the general interest. The principle that no compensation was payable, which originated in the rules governing public property, had been clearly stated in every decision authorising temporary occupancy of the public property issued to the applicants over decades.   Having regard to all the foregoing considerations, the Court held that the applicants would not bear an individual and excessive burden in the event of demolition of their houses without compensation. Accordingly, the balance between the interests of the community and those of the applicants would not be upset. The Court held, by thirteen votes to four, that there had not been a violation of Article 1 of Protocol No.   1.   Complaint relating to the right to respect for home (Article 8)   The Court observed that the complaint under Article 8 arose out of the same facts as those examined under Article 1 of Protocol No.   1 and considered that it did not raise any separate issue. It held, by sixteen votes to one, that it was not necessary to examine separately the complaint under Article 8 of the Convention.   In both judgments Judge Casadevall expressed a concurring opinion; Judges Bratza, Vajić, Björgvinsson and Kalaydjieva a joint partly dissenting opinion; and Judge Kovler a partly dissenting opinion. The text of these separate opinions is annexed to each of the judgments.     ***   The judgments are available in English and French. This press release is a document produced by the Registry. It does not bind the Court. Further information about the Court is available on its   website ( http://www.echr.coe.int ).     Press contacts Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] After her death on 14 May 2008 her two daughters, Sophie Robinet-Epiard and Elisabeth Pospisil, continued the proceedings as her heirs . [3] Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.