Home visit to inspect building work in the occupier’s absence and without his permission breached the Convention

JUDGMENT 

Halibi v. France 16.05.2019 (no. 66554/14)

see here

SUMMARY

Protection of  residence  from arbitrary inspections. Inspection in a building under construction, by building inspectors according to the Spatial Planning Code. The apartment  was inspected and the officials drew up a report noting a number of constructions which were at variance with the building permit and prior declaration of work. The visits took place without prior permission from and in the absence of the owner or occupier of the premises. The Court concluded that in the absence of the occupier’s consent – or, failing that, judicial authorisation – and of an effective remedy, the home visit by the planning officials could not be said to have been proportionate to the legitimate aims pursued.

PROVISION 

Article 8

PRINCIPAL FACTS 

The applicant, Mr Simon Halabi, is a British national who was born in 1958 and lives in London
(United Kingdom).

On 19 March 2009 two officials from the Grasse Town Planning Department conducted a visit to a
property development belonging to the Immofra company, under Article L. 461 1 of the Planning
Code, to inspect building work that had been carried out. The officials drew up a report noting a
number of constructions which were at variance with the building permit and prior declaration of
work. The visits took place without prior permission from and in the absence of the owner or
occupier of the premises.

On 31 January 2013 Mr Halabi, the occupier, was placed under formal investigation by the
investigating judge for offences including building without planning permission and improper
performance of work subject to a prior declaration. On 8 July 2013 Mr Halabi applied to have the
offence report of 19 March 2009 and the entire proceedings declared null and void. The
Investigation Division of the Aix-en-Provence Court of Appeal dismissed his application. Mr Halabi
appealed on points of law. The Court of Cassation dismissed the appeal, finding that the authorities
had not “used any coercion”.

On 26 January 2017 the Grasse Criminal Court fined the applicant 5,000 euros (EUR) in respect of the
offences noted during the visit in question and for other infringements of the Planning Code.

THE DECISION OF THE COURT

Article 8

The Court observed that it was not disputed that the property in question belonged to the Immofra
company. Mr Halabi had, however, explained to the investigating judge that all his family’s property
was registered in the name of companies such as this one. As a businessman resident in London, he
used this property as a second home for holidays or for receiving business contacts.

The Court observed that the national authorities had, moreover, considered Mr Halabi to be the
occupier of the property by convicting him in that capacity in the criminal proceedings. It further
noted that the visit had taken place on premises that were inseparable from the property known as
the “Château des Bois Murés”, of which they were an outbuilding, and that while work on some of
the rooms had still been in progress, others had already been completed. By accessing these
furnished rooms, the planning officials had entered a physically defined space where the applicant’s
private and family life was developing. The Court therefore held that the property forming the
subject of the visit in question was to be regarded as the applicant’s “home” for the purposes of
Article 8 of the Convention.

The Court noted that Article L. 461-1 of the Planning Code allowed planning officials to visit building
projects not only while they were in progress, but also up to three years after their completion, in
order to carry out any checks they deemed appropriate and to inspect all technical documents
relating to the completion of the buildings. The Court found that this right to visit and inspect
premises entailed less serious interference than a search but nevertheless considered it necessary to
ensure that the applicant had been afforded sufficient and effective safeguards against abuse. The
visits provided for in Article L. 461-1 could be carried out at a person’s home at any time and without
a senior police officer being present, no explicit reference being made to the need for the occupier’s
agreement or to prior authorisation by a judge. The obligation to obtain the occupier’s consent was
not laid down in Article L. 461-1. The Court further considered that the possibility for the occupier to
object to a visit of this kind was purely theoretical, given that such a refusal in itself amounted to a
criminal offence (Article 480-12 of the Planning Code).

The Court observed that in the present case, officials authorised to deal with planning matters had
entered Mr Halabi’s home in his absence and without his permission. The Court had already held
that the lack of prior judicial authorisation could only be offset by an effective subsequent judicial
review of the lawfulness and necessity of the measure in question. However, the application by Mr Halabi to the Investigation Division to declare null and void the report of 19 March 2009, which had
been drawn up without his consent, had been deprived of all useful effect.

The Court therefore concluded that in the absence of the occupier’s consent – or, failing that,
judicial authorisation – and of an effective remedy, the visit carried out on 19 March 2009 by the
planning officials could not be said to have been proportionate to the legitimate aims pursued.
There had therefore been a violation of Article 8 of the Convention.

Just satisfaction (Article 41)

The Court held that France was to pay the applicant EUR 16,000 in respect of costs and expenses(echrcaselaw.com editing). 


ECHRCaseLaw

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