The demolition of a house that was knowingly constructed in a forest area, did not violate the right to privacy

JUDGMENT

Kaminskas v. Lithuania 04.08.2020 (app. no. 44817/18)

see here

SUMMARY

Demolition of a house in a forest area and protection of the environment. Right to privacy.

Court decision for demolition of an illegal building of the applicant, who built it in a forest area, knowing the forest character of the property.

The applicant’s situation (age, health, income) was assessed by the courts despite the fact that they themselves were not obliged to do so in accordance with national law. In fact, various measures were taken in favor of the applicant, such as the extension of the demolition deadline, in order to enable the ex-post legalization of the building. The ECtHR ruled that the law was intended to protect the environment against the interests of individuals who had carried out illegal construction in protected areas. Strasbourg was satisfied that the domestic authorities had assessed all the relevant circumstances and examined all of the applicant ‘s allegations on the basis of his personal situation and were unable to establish that the State had exceeded its discretion under Article 8 of the Convention.

Non-violation of the right to respect for privacy.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Vytautas Kaminskas, was born in 1950 and lives in Kulautuva (Lithuania).
The case concerned his complaint about having been ordered to demolish a dwelling he had built
unlawfully on forest land.

In June 2012 the State Inspectorate of Territorial Planning and Construction under the Ministry of
the Environment inspected land the applicant owned in an area which had been classified as forest
land. It found that he had unlawfully constructed a house and storehouse on the land and ordered
him to demolish it.

In September 2013 the Inspectorate began proceedings against the applicant over his failure to
comply with the order. The court dealing with the case twice adjourned it as the applicant pursued
efforts to legalise the construction by having the status of the land changed or by submitting that his
grandfather had earlier had a homestead there. Those applications were unsuccessful.

The court allowed the Inspectorate’s claim in October 2017, a decision which was upheld on appeal.

The Supreme Court refused to accept an appeal on points of law for examination in April 2018. As of
February 2020 the house had not been demolished.

Relying on Article 8 (right to respect for private and family life and the home) of the European
Convention on Human Rights, the applicant complained about the order to demolish his house.

THE DECISION OF THE COURT…

No violation of Article 8

In the present case, there was no dispute that the applicant had built his house illegally and that he did so knowingly – he did not dispute it either domestically or before the ECtHR. Indeed, he had to be aware of the restrictions on building a house on a property that had already been designated as a forest area. It should be noted that before the construction of the house, he made every effort to change the status of the plot or to ensure the legality of the construction in any other way. It seems that he started looking for ways to retroactively legalize the illegal construction only after the decision for demolition was issued. In addition, there is no indication that the authorities took any action that could lead the applicant to believe that the building was lawful or that it could subsequently legalize it.

The applicant therefore built the house on forest land, knowingly violating the prohibitions of the law. Therefore, the situation in which he found himself was the result of his own action.

The Court noted that national law did not provide a general and absolute rule that any building built without a permit had to be demolished – it was possible to legalize such buildings afterwards. Nor was the ban on building on forest land absolute. The law provided for a limited number of exceptions where the status of forest land could be changed to allow construction.

However, in cases where these exceptions were not applicable and construction could not be allowed, the possibility of retroactive legalization was excluded by law and the buildings had to be demolished. This can be seen as a decision of the legislator to propose the protection of the environment against the interests of persons who had carried out illegal constructions in protected areas. Consequently, in situations such as the one at issue, domestic law required courts to assess only whether the building had been legally constructed on forest land. Nevertheless, the courts hearing the case considered that they had to take into account the particular circumstances of his personal situation and the proportionality of the proposed measure.

In that context, the Court reiterated that, according to its settled case-law, its task is not to review national law in the abstract, but to determine whether the manner in which it was applied in the applicant’s case led to a breach of the ECHR .

In the present case, the Court notes that the domestic authorities have taken various measures in order to provide the applicant with opportunities to improve his situation. In particular, the Inspectorate extended the deadline for the demolition of the house, the courts examining the demolition suspended it several times in order to allow it to subsequently seek legalization of the construction, and took into account the difficulties encountered by the applicant during the period Although the Inspectorate received permission to demolish his house, the applicant refused to carry out the measures for more than a year after the decision became irrevocable.

The Court was aware of the applicant ‘s difficult situation due to his advanced age, ill health and low income. However, the courts, weighing his own interests and the general interest in the preservation of forests and the environment, considered that neither his age nor other personal circumstances could have a decisive weight, given the fact that he had built knowingly the house in a forest area without a permit.

Consequently, the Court suffices to say that the domestic authorities assessed all the relevant circumstances and examined all the applicant ‘s allegations on the basis of his personal situation. It was therefore not in a position to find that the State had exceeded the margin of appreciation conferred on it under Article 8 of the Convention.

Consequently, it found no violation of his right to respect for his private life (Article 8 of the Convention).

 


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