Expulsion from a house and its demolition due to construction on public land and without a building permit. Non-violation of the right to respect for residence
JUDGMENT
Ghailan and others v. Spain 23.03.2021 (app. no. 36366/14)
SUMMARY
Right to respect the residence. Expulsion from a house and its demolition due to urban planning violations and construction on public land.
The applicants were evicted from their residence on the ground that it had been erected in breach of urban planning provisions on a communal public area. The demolition decision was legally notified to them, but they failed to exercise the legal remedies provided for the domestic authorities to consider the proportionality of the intervention.
The Court reiterated that Article 8 does not recognize the right to housing as such. Nevertheless, such an intervention should be in accordance with the law and necessary in a democratic society.
It found that the decision to demolish the arbitrary building was in accordance with the urban planning provisions and aimed at preventing unrest and the financial well-being of the citizens.
The ECtHR subsequently found that the applicants had an effective opportunity to challenge the proportionality of the demolition before it was carried out but did not use the available remedies available to them. Nor did they take advantage of the alternative housing provided by the state, claiming that they were hosted by relatives.
The ECtHR found that there had been no violation of Article 8 of the ECHR.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants, Abdelilah Ghailan, Fatima Zahra Alami Wahabi and their two minor children, are
Moroccan nationals who were born in 1977, 1984, 2004 and 2007 respectively and live in the
Cañada Real Galiana in Madrid.
The case concerned the applicants’ eviction and the demolition of their home by the authorities.
Relying on Article 8 (right to respect for private and family life and the home) of the European
Convention the applicants complained that the demolition of their home after decades of tolerance
on the part of the authorities had infringed their rights.
THE DECISION OF THE COURT…
The Court noted from the outset that the applicants had argued that their eviction and demolition constituted a violation of Article 8 of the Convention as a whole. The Court reiterated that Article 8 does not recognize, as such, the right to home.
The Court found it useful to reiterate that the concept of “residence” within the meaning of Article 8 is not limited to those premises where one resides under a right in rem or which has been lawfully erected. “Home” is an autonomous concept that does not depend on national law. Whether specific spaces constitute a “residence” which attracts the protection of Article 8 § 1 depends on the actual circumstances, in particular on the existence of adequate and continuous connections with a particular place. This interference would lead to a violation of Article 8 of the Convention, unless it could be shown that it was “in accordance with the law”, pursued one or more of the legitimate objectives referred to in paragraph 2 and were “necessary in a democratic society”.
(a) If the intervention was “in accordance with the law”
The Court observed that, contrary to the allegations made by the first applicant in the domestic proceedings, the applicants did not dispute the lawfulness of their intervention in the proceedings before the Court. As mentioned above, the demolition of the applicants’ residence was carried out on the basis of Articles 194 and 195 of the Law on Urban Planning, which was quite clear and predictable. It therefore found in the present case that the measure in question was ‘in conformity with the law’ within the meaning of Article 8 της2 of the ECHR.
(b) If the intervention pursued a “legitimate aim”
The Court reiterated that it is lawful for the authorities to seek to regain possession of land from persons who do not have the right to occupy it. Moreover, even if the sole purpose of the intervention was to ensure the effective implementation of the law that no building can be constructed without a building permit, it can be considered to pursue a legitimate aim. The Court found that the measure in question was intended to protect the rights and freedoms of others (as a right to shared land or private property), to prevent unrest and to promote the economic prosperity of the country.
(c) If the intervention was proportionate to the legitimate objectives
(i) General principles
An intervention will be considered “necessary in a democratic society” for a legitimate purpose if it serves a “compelling social need” and, in particular, if it is proportionate to the legitimate aim pursued. With regard to arbitrary construction, the factors that may be decisive in determining the proportionality of the measure are whether the building was constructed arbitrarily or not, whether the owners did so knowingly or not, what is the nature and degree of arbitrariness, what is the precise nature of the interests sought to be protected from demolition, whether suitable alternative housing is available to those affected by the demolition and whether there are less stringent ways of dealing with the case;
(ii) Application in the present case
It is common ground that the construction of the applicants’ residence was illegal. The Court also noted that the first applicant knowingly erected on public land, without a building permit, a gross violation of the town planning provisions. The applicants consciously erected the building in an area where construction was prohibited.
In the present case, the Court further noted that the unlawful possession of public land in Cañada Real Galiana had been de facto tolerated by the authorities for decades. However, the authorities acted immediately when they were informed of the reconstruction of the building by the applicants the day after the first demolition order was enforced.
The Court also considered it important to note that the case did not concern decisions ordering the expulsion of the whole community and the applicants did not claim that the measure in question affected their way of life or their ability to maintain their identity. Once the demolition order had become final, the first applicant was called upon to comply with it voluntarily. It did not do so in time and the authorities initiated a procedure for its execution. The notification of the decision explicitly listed the available legal remedies against the decision. Again, the applicants did not bring an administrative appeal or a request for judicial review of that decision, although such remedies would require the authorities, in particular the courts, to take due account of the various interests involved and to consider the principle of proportionality.
In the light of the foregoing, the Court attached particular importance to the fact that the applicants had not challenged the expulsion order or the demolition order.
Nevertheless, Spanish law provided for an additional set of safeguards. In order to carry out the demolition – when the decision was final and enforceable – the municipal authorities, in the absence of the applicants ‘consent, were forced to seek legal assistance to enter the applicants’ house with a view to their eviction and demolition.
In that context, the Court noted that the applicants also had the opportunity to put forward their arguments concerning the proportionality of the measure in legal proceedings concerning their entry permit.
In addition, the Court reiterated that in cases such as the present, concerning the expulsion of trespassers from public land, in order to assess the proportionality of the intervention, it is also appropriate to consider the possibilities of alternative housing.
In that regard, the Court noted that the applicants argued that the domestic authorities had not taken into account the minimum guarantees of forced abortions, such as alternative housing. However, although they claimed in the domestic proceedings that the house to be demolished was their only home, they did not state that they could not secure another place to stay. The applicants also refused emergency assistance on the grounds that they had received support and assistance from their social environment and family, who had hosted them since they had lived in the same area. They did not provide information on their post-demolition status in relation to their housing.
The Court concluded that the contested decision fell within the margin of discretion conferred on the defendant State and was not disproportionate to the legitimate aims pursued. In reaching that conclusion, the Court took into account the circumstances of the case and took particular account of the fact that the applicants had an effective opportunity to challenge the proportionality of the demolition before it was carried out. In addition, the applicants did not provide a satisfactory explanation as to why they did not do so. Consequently, the lack of a thorough and thorough examination of the proportionality of the demolition can be attributed to the fact that the applicants did not use the available remedies available to them. Other considerations that could have supported another result at national level could not be used as a basis for the Court’s finding that it would be tantamount to excluding the applicants from the town-planning provisions and the obligation to respect the property rights of others.
No violation of Article 8.
