The applicants, Ms Isabelle Brosset-Triboulet and Ms Eliane Brosset-Pospisil, are French nationals who live in Sainte-Croix-Grand-Tonne and Caen respectively. They were represented before the Court by Mr P. Blondel, of the Conseil d’Etat and Court of Cassation Bar. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 May 1909 A. purchased the Isle of Irus in the Morbihan Bay from R., by contract signed before a notary.
By a decision of 25 September 1909, the Prefect of Morbihan authorised A. to build a dyke on a plot of maritime public property situated on land belonging to the municipality of Arradon for the purposes of installing a four-metre by four-metre approach ramp on it from which he could reach the Isle of Irus, in particular, by boat.
By a decision of 25 August 1911, the Prefect of Morbihan authorised A. to enlarge the dyke. The relevant parts of the decision read as follows:
“... From the point of view of conformity with the requirements of the Highways Authority, the dyke – once enlarged as requested – cannot interfere with navigation in any way, on condition that it is levelled above the high and spring tide water marks, or with maritime coastal traffic on condition that it is accessible to the public at all times.
Regarding the fee to be charged ... the permittee shall pay an annual fee of 30 francs 40 centimes, on the basis of FRF 0.10 per surface metre.
In the event that this authorisation is revoked, the permittee must, if requested, restore the site to its original state. Should he fail to fulfil this obligation, the authorities shall do so of their own motion and at his expense. Any advance payments shall be reimbursed by the permittee on the basis of instruments enforceable at the Prefect’s request ...”
On 2 May 1921 a deed of sale concluded before Mr Maigre, a notary, was published in the Vannes Mortgage Registry. By that deed, A. transferred ownership of the Isle of Irus to S.
The registration of this deed by the Mortgage Registry, in so far as it relates to the dyke in particular, reads as follows:
“... Entry into possession – The purchaser shall acquire ownership of the Isle of Irus hereby conveyed to him from the date hereof and by virtue of this deed and shall take possession thereof from 1 March nineteen hundred and twenty-one.
Conditions – The present sale is concluded on the following terms and conditions, which Mr [S.] undertakes to carry out fully and faithfully. 1o He shall take the property sold to him in its current state without any right of action against the vendors on any ground whatsoever, and without any guarantee as to the area indicated above, any difference – whether more or less – being to his advantage or disadvantage even if it exceeds one twentieth. 2o He shall bear the burden of any apparent or non-apparent, continued or discontinued, negative easements, whether established by agreement or by law, that may encumber the property sold or positive easements, if any, all at his own individual risk without any right of action against the vendors and without anyone acquiring more rights by virtue of the present clause than would accrue to them under any property title or by law, but on the contrary without the present clause interfering with the rights in favour of the purchaser resulting from the Act of 23 March eighteen hundred and fifty-five. Mr [A.] declares that by a decision of the Prefect of Morbihan dated twenty-fifth September nineteen hundred and nine and by another decision dated twenty-fifth August nineteen hundred and eleven, he acquired at the place known as Pen-er-men a stretch of land measuring three hundred and thirty-three square metres ninety-eight square decimetres, registered in the land register of the municipality of Arradon under section number 137 for the purpose of building a dyke with a steel ramp measuring four metres by four metres. This land was granted to him on the express condition that the dyke be accessible to the public and in consideration of an annual fee of thirty francs and forty centimes subject to review every five years. Accordingly, Mr [A.] hereby assigns all his rights relating to this stretch of land to the purchaser together with all structures erected by the vendor thereon and declares that there is no other positive or negative easement ...”
The applicants’ mother acquired from her aunt M., S.’s widow, by inter-vivos gift drawn up before a notary and published in the Vannes Mortgage Registry on 12 November 1945, a dwelling house built on the above-mentioned dyke: “... hereby donates ... the property belonging to her in the municipality of Arradon and called the Isle of Irus”.
By a series of decisions issued, inter alia, on 6 June 1951, 29 March 1967, 21 December 1977, 27 August 1984 and 10 July 1986, the Prefect of Morbihan authorised occupation of the dyke in question in consideration of payment of a fee. The decision of 1967 refers to renewal of the decision of 1951 authorising occupation of a dyke; those of 1984 and 1986 refer to the dyke and house. The prefect’s decision of 10 July 1986 did not authorise occupation of the public property beyond 31 December 1990. The decisions stated that “the authorities reserve the right to modify or withdraw the authorisation should they deem it necessary, on any ground whatsoever, without the permittee thereby acquiring any right to claim any compensation or damages in that regard. The permittee must, if required, restore the site to its original state by demolishing the constructions built on the public property, including those existing on the date on which the decision was signed. Should he fail to comply with that obligation, the authorities shall do so of their own motion and at his expense”.
In the meantime, in 1966, the Department of Revenue from State Lands had written to the director of the State Lands Department in Vannes in the following terms:
“You have submitted to me for observations and opinion a request for renewal of temporary occupation of maritime public property made by [the applicants’ mother]. This request concerns a dyke of a surface area of 333.98 sq. m, reduced to a taxable surface area of 304 sq. m, on which a dwelling house has been built. The annual fee proposed by the Highways Authority is 100 francs. The case gives rise to the following observations: Article R 56 of the Code of State Property provides that any fee payable to the Treasury Department must take into account the advantages of any kind procured to the concessionaire. In the aforementioned case, there is no doubt that the concession of the dyke in question procures a not inconsiderable advantage to the applicant: in particular, it allows her to save on the capital that would otherwise be invested in the purchase of a building plot in the area in question... In these circumstances I find it fully acceptable to retain a sum corresponding to the amount of interest calculated at the very reduced rate of 5% of the value of the land conceded. ...”
On 15 March 1993 the applicants’ mother applied to the Prefect of Morbihan for renewal of the occupancy agreement but, in a letter of 6 September 1993, the prefect informed her that, following the entry into force of Law no. 86-2 of 3 January 1986 on the Development, Protection and Improvement of Coastal Areas, he was no longer able to renew the said authorisation on the former terms. However, having regard to the long period of occupancy and the applicants’ and their mother’s emotional attachment to the house in question, the prefect said that he was willing to consider, exceptionally, granting limited authorisation restricting use of the property to strictly personal use and prohibiting any sale or transfer of the land and house, any work thereon other than maintenance, and reserving an option to the State, on expiry of the authorisation, to have the property restored to its original state or to reuse the buildings.
The applicants’ mother refused the prefect’s offer. By way of counterproposal, she sought a permit to build a dyke that would be valid as a transfer of ownership under Article L. 64 of the Code of State Property.
On 9 March 1994 the Prefect of Morbihan rejected the applicants’ mother’s request but maintained his initial offer of an occupancy agreement subject to conditions.
On 5 May 1994 the applicants’ mother applied to the Rennes Administrative Court for the prefect’s decision of 9 March 1994 rejecting her request for a permit to build a dyke to be set aside.
On 4 July 1995 the prefect informed the applicants’ mother that he was considering drawing up an official report recording the administrative offence of unlawful interference with the public highway with a view to formally establishing the unlawful occupancy of public property. That official report was drawn up on 6 September 1995 and served on the applicants’ mother on 16 November 1995.
On 20 December 1995 the Prefect of Morbihan, on the basis of the finding of illegal occupancy of public property and in accordance with Article L. 28 of the Code of State Property, lodged an application with the Rennes Administrative Court for an order against the applicants’ mother to pay a fine and restore the property to its original state, that is, prior to construction of the house.
In two separate judgments delivered on 20 March 1997, the Rennes Administrative Court ruled on the application lodged by the applicants’ mother on 5 May 1994 (case no. 941509) and the application lodged by the Prefect of Morbihan on 20 December 1995 (case no. 953516).
The mother’s application for the prefect’s decision rejecting her request for a permit to build a dyke to be set aside (case no. 941509) was dismissed by the Rennes Administrative Court, which found that the decision of 9 March 1994 had been lawful. It held that the decision did not of itself have any effect on the incorporation of the dyke and the dwelling house into maritime public property. It found that the permit requested was not justified in the general public interest.
In case no. 953516 the Rennes Administrative Court granted the prefect’s application of 20 December 1995, on the following grounds:
“... The purpose of prosecuting someone for the administrative offence of interference with the public highway is to preserve the integrity of public property. As can be seen from the judgment delivered by the court today in case no. 41509, the land on which Mrs Brosset’s dwelling house stands is indeed public property.
... Whilst Mrs Brosset has full title to the dwelling house occupied by her ..., the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a permit to build a dyke or another type of permit. The investigation into the facts and, in particular, the absence of any documents evidencing that a permit was granted show that the dwelling house in question was illegally built on maritime public property. Accordingly, the prefect is justified in requesting an order against Mrs Brosset to pay a fine and restore the seashore to its original state prior to the construction of the house... This must be done within three months of service of this judgment ...”
On 11 July 1997 the two applicants, in their capacity as their mother’s heir after her death, lodged an appeal against the judgment delivered in case no. 953516. On 18 July 1997 they appealed against the judgment delivered in case no. 941509.
By a judgment of 8 December 1999, the Nantes Administrative Court of Appeal decided to join the two sets of proceedings on the ground that they were connected and to dismiss the applicants’ appeals on the following grounds:
“ ... It is not disputed that the land on which the dyke on which the house was built ... was entirely covered by water, independent of any exceptional meteorological circumstances, prior to dredging the land in order to build the dyke. It has not been established, or even alleged by the applicants moreover, that the undredged portion of this parcel of land had ever been removed from the action of the tide. The investigation shows, moreover, that the dyke is the result of land dredging carried out prior to the entry into force of the aforementioned Act of 28 November 1963 and that, as this was not done in the manner prescribed for permits for the construction of a dyke, notwithstanding the various authorisations of temporary occupancy granted by the authorities, it has not had the effect of bringing this part of the parcel of land outside the category of maritime public property thus removed from the action of the tide. In accordance with the principles of inalienability and imprescriptibility of public property, the submissions by Ms Triboulet and Ms Brosset-Pospisil to the effect that the house was built illegally but its occupancy accepted by the authorities for a very long time and even tolerated after expiry of the last authorisation to occupy it do not affect the fact that the land is maritime public property.
... the last decision authorising temporary occupancy of the maritime public property ... expired on 31 December 1990. In the absence, since that date, of a lawful title of occupancy, the Prefect of Morbihan is justified in requesting an order against the occupants to restore the site – if they have not already done so – to its original state prior to construction of the house on maritime public property. In disputing that obligation, the applicants cannot properly rely on the number of years of occupancy of the premises or on the fact that the authorities have tolerated the continuation of that occupancy since 31 December 1990 and offered draft occupancy agreements to Ms Brosset in order to regularise the situation, which, moreover, she has not taken up. ...”
The Administrative Court of Appeal held that the obligation to restore the site to its original state within three months of service of its judgment (failing which the authorities would do so of their own motion, with the costs and risks to be borne by the occupants) did not constitute a measure prohibited by Article 1 of Protocol No. 1 because the rule enshrined in that provision was that no one could be deprived of their possessions except in the public interest.
On 21 February 2000 the applicants lodged an appeal on points of law against the judgment of 8 December 1999. The Government Commissionner made the following submissions:
“... the value in today’s terms of the purchase price [of the] house is 655,530 euros .... However, the acquisition of rights in rem is not permitted under the Act of 25 July 1994 on Natural Public Property belonging to the State ... nor were these acquired before that Act was passed ... The appellants have not acquired any property right ... given the precarious situation of the buildings, the market value could not be established without taking account of that essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up ...”
By a judgment delivered on 6 March 2002 the Conseil d’Etat dismissed an appeal lodged by the applicants. It held that they could not rely on any right in rem over the land in question or the buildings that had been erected on it and that the obligation to restore the land to its original state without prior compensation was therefore not a measure prohibited by Article 1 of Protocol No. 1. It also held that the applicants could not rely on the fact that the authorities had adopted a tolerant attitude regarding the occupancy of the property in support of their submission that they should be allowed to restore the site to the state it had been in at the time of acquisition of the house.
B. Relevant domestic law
1. Code of State Property
Article L. 28
“Subject to authorisation being issued by the competent authority, no one may occupy any national public property or make use thereof over and above the right of user vested in everyone.
The Property Department shall record any infringement of the provisions of the preceding paragraph with a view to instituting proceedings against illegal occupants, recovering compensation for fees in respect of which the Treasury Department has been defrauded, without prejudice to the institution of proceedings for unlawful interference with the highway.”
Article L. 52
“Public property is inalienable and imprescriptible.”
Article L. 64
“The State may concede on conditions it shall determine ... the right to build a dyke ... on public or State land...”
2. Law no. 63-1178 of 28 November 1963 on Maritime Public Property [codified in 2006, Article L 2111-4 et seq. of the Code of Property owned by Public Bodies]
“Subject to the rights of third parties, the following are part of maritime public property:
a) the soil and subsoil of the territorial waters...
b) land naturally reclaimed from the sea and, subject to any contrary provisions stipulated in a deed of concession, land that is artificially removed from the action of the tide...”
“Anyone who ... has undertaken construction work on land reserved for public facilities without lawfully granted authorisation shall be liable to a fine of between FRF 1,500 and FRF 1,500,000.
The court may order the demolition of illegal buildings within a period it shall determine.
On the expiry of that period, demolition may be carried out on the authorities’ own motion at the expense of the wrongdoer.”
3. Law no. 86-2 of 3 January 1986 on the Development, Protection and Improvement of Coastal Areas
“Decisions regarding the use of maritime public property shall take account of the vocation of the zones in question and those of the neighbouring terrestrial areas, as well as of the requirements of conservation of coastal sites and landscapes and biological resources. Accordingly, they shall be coordinated with, inter alia, decisions concerning neighbouring public land ...”
“... there shall be no interference with the natural state of the seashore, such as by dyke construction ... other than for structures ... related to providing a public service or carrying out public works ... and that have been declared of public interest.
However, land dredging carried out prior to the present Law shall continue to be governed by the previous legislation.”
Relying on Article 6 of the Convention, the applicants complained of the disproportionate nature of the penalty ordering them to demolish “their” house. This complaint was also the subject of questions put by the Court relating to Article 1 of Protocol No. 1 and Article 8 of the Convention.
A. The penalty imposed on the applicants’ mother for unlawful interference with the highway and the order issued by the authorities requiring the applicants to demolish the house, examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
1. The Government
a) Article 6
According to the Government, a penalty for unlawful interference with the highway could not be regarded as a “criminal sanction” for the purposes of Article 6 of the Convention.
The statutory basis for the rules governing the offences in question lay in the Ordinance of the Marine of 3 August 1681 read in conjunction with the provisions of the Law of 29 Floréal An X, and not in the Criminal Code. The penalties had to be regarded as administrative, and not criminal, ones as was clear from domestic law, the case-law of the Conseil d’Etat (CE, 6 April 2001 SA Singer) and the case-law of the Constitutional Council (decision of 23 September 1987). Furthermore, over and above a prosecution intended to result in the imposition of a fine for interference with the integrity of public property, which was statute-barred in the present case, the purpose of establishing an offence of unlawful interference with the highway was to secure the restoration of the public property in question to its former state. Accordingly, State property proceedings were aimed exclusively at repairing damage caused to public property. They did not therefore fall within the purview of the principles governing criminal law (no negligence or criminal intention; no deferment of sentence; no limitation period; no benefit of an amnesty; no principle of discretionary prosecution; and exemption from the non bis in idem principle). With regard to the degree of severity of the penalty, the fact that it was a mixed one did not mean that a penalty for interference with the highway was a criminal sanction. The criminal aspect was limited to the prosecution and the fine of 500 French francs (FRF) in the present case, which was moreover statute-barred. Above all, the obligation to restore public property to its original state was designed to ensure that damage was repaired rather than to deter or punish.
Should the Court conclude that the penalty imposed in the State property proceedings was a criminal sanction, the Government considered it to be proportionate in that it was necessary for the restoration and protection of natural public property. In the alternative, the Government submitted that the proportionality of a penalty was not among the procedural guarantees afforded by Article 6 of the Convention.
b) Article 1 of Protocol No. 1
According to the Government, occupants of maritime public property could not lay claim to any property rights. In the present case, at the outset, the two decisions of 1909 and 1911 had not conferred a property right over the land in question, but merely revocable authorisation of temporary occupancy in consideration of a fee. Subsequently, the deed drawn up on 7 March 1921 by Mr Maigre, a notary, specified that “the dyke must be accessible to the public at all times” and that the purchaser assigned “all his rights relating to this concession to the purchaser together with all structures erected by the vendor thereon”. He had accordingly transferred only a temporary right of occupancy of the property conceded by the State, thus excluding any right in rem, such as a property right. Then in 1945 the inter-vivos donation of the Isle of Irus to the applicants’ mother did not mention the existence of a building on the dyke, so could not be relied on as a property title. According to the Government, it was not until 1967 that the authorities discovered that a house had been illegally built there. Lastly, a series of authorisations to occupy the site, including the house, had been granted until 31 December 1990. The foregoing factors showed that whilst the decisions authorising occupancy issued in favour of the applicants’ mother and her predecessors referred to the occupation of a dyke and later a house, they did not have the effect of recognising that any property right had vested in the successive occupants of the public property belonging to the State. Moreover, the establishment of rights in rem over public property, which had been possible only since the Act of 25 July 1994 (Article L. 34-1 of the Code of State Property), did not include natural public property, but was limited to the exercise of an activity authorised by an occupancy title, which the applicants did not have. Lastly, the Government stated that the applicants had been fully aware of the precarious and revocable nature of the decisions authorising their occupancy of maritime public property and thus of the unusual nature of their situation.
With regard to the effect of the length of time during which the applicants had occupied the site, the Government reiterated that the State was also entitled to the protection of its property. It was therefore entitled to authorise the occupation of public property by conferring mere rights of use and enjoyment, in the same way as a landlord could grant a lease or other interest in property. Accordingly, allowing the applicants to keep a dwelling house on maritime public property could not amount to recognition of a right of property. The applicants could not rely on Article 1 of Protocol No. 1 because public property was inalienable and imprescriptible. The fact that the authorities had accepted the occupation of the house for a long time and tolerated it even after the last decision authorising occupancy had expired did not affect the fact that the site fell within the category of public property in accordance with the principle that public property was imprescriptible. The issue as to whether the site on which the house stood was public or private property had been settled in favour of the former solution by the domestic courts, which were well placed to assess questions of fact. Even supposing that the land were part of private State property and accordingly did not benefit from the protection of Article L. 52 of the Code of State Property, the applicants could not have acquired the dyke and the house by adverse possession because the occupancy in question had not been that of an owner, but of a precarious occupant of land conceded by the State. The Government pointed out in that connection that in order to rely on adverse possession the occupants had to have unequivocal possession, which was not the case here. In conclusion, the Government submitted that the lack of a property title precluded any claim for compensation.
In the alternative, the Government submitted that the rules governing State-owned property satisfied the conditions set forth in paragraph 2 of Article 1 of Protocol No. 1 in that they were part of the State’s right to control the use of property in accordance with the general interest. The inalienability and imprescriptibility of public property were dictated by the concern to ensure that it was directly and permanently managed for use by all citizens. The State accordingly had a duty to safeguard public property against illegal occupants by taking legal action against offenders, contesting any private use that no longer conformed to the purpose for which the land was designated or not renewing an occupancy title. In the present case authorisations had been granted as long as they were compatible with the designated use of the public property: the decision of 1909 specified that the occupation requested (to allow access to a neighbouring island belonging to the occupant) was granted on condition that the dyke be accessible to the public at all times. If the presence of the house – the existence of which was discovered by the authorities – had been tolerated by the State from 1967, this was precisely because at that date the house had been regarded as compatible with the designated use of the land.
The legal context had evolved over the past years with the enactment of the “Coastal Areas” Act of 1986 and the drive to implement an active policy of environmental protection. Section 27 of that Act prohibited any interference with the natural state of the seashore. The authorities had merely complied with that principle when they refused to renew the authorisation to occupy a dwelling house for purely private use. It was the State’s right to implement laws that it deemed necessary to regulate the use of property in accordance with the general interest within the meaning of the second paragraph of Article 1 of Protocol No. 1. The Government considered that interference by the State to be proportionate: the house in question had been built illegally and an offer of limited authorisation to occupy it subject to conditions had been rejected.
2. The applicants
a) Article 6
The applicants argued that the penalty imposed on them fell within the scope of Article 6 of the Convention and was disproportionate. In their submission, the “clear lack of proportion between the right brandished by the State and the respect due to private property lent itself to a finding by the Court of a violation by the State ...”.
b) Article 1 of Protocol No. 1
The applicants stated that the house had been built in 1907, a fact well known to the authorities. The villa necessarily had a status: it was immovable property that had a value, could be mortgaged etc. and the Government could not argue that it was a sort of res nullius (property of nobody) that did not fit into any legal category. The property in question was indeed private, and not State, property – with the consequences that derived from that – and amounted to a “possession” within the meaning of Article 1 of Protocol No. 1.
The various owners of the house had obtained a precarious occupancy agreement because it was situated on a dyke, which was now above the highest equinoctial tidemark. The villa had been a dwelling for the applicants, just as it had been for all the previous owners for generations, and was part of their heritage. If the building was not theirs, they failed to see why they should be ordered to demolish it at their expense.
According to the applicants, the imprescriptibility of property falling within the category of public property did not preclude the applicability of Protocol No. 1. The point at issue was whether the State could properly establish an administrative offence of unlawful interference with the highway and compel the owner of a lawfully acquired house that had been built a hundred years ago to demolish it at the owner’s expense without any compensation whatsoever. The superposition of property (the soil belonging to the State and the house itself belonging to them) did not justify a demolition order with no compensation; nor did the other principles governing State property. State assets were often sold, such as, for example, movable property belonging to the State, and the concept of inalienability appeared to apply when it suited the State. In any event, a situation could not be allowed to develop over decades and land on which property not belonging to the authorities had been built could not simply be conceded and then, from one day to the next, without lawful reason, result in the institution of proceedings for unlawful interference with the highway.
The applicants added that if the State were to appropriate the house, it would have to compensate the owners for all the loss incurred as a result. To maintain that a right of property granted between private parties could not be asserted against the State was tantamount to denying civil law and creating virtual ownership, which was not covered by law or any principle. Any reasonable person could see that ordering demolition at the owner’s cost amounted to a straightforward expropriation.
The applicants denied that the State had an overriding interest in demolishing a house that deserved to be classified as a listed building. They alleged that the State intended to recover the house for a person of its choice. In their submission, the “Coastal Areas” Act did not affect their position because it had come into force long after the buildings in question had been erected and, moreover, it had never been alleged that the house failed to meet a landscape or aesthetic requirement.
3. The Court
The Court reiterates that it has already found that a demolition order in respect of an illegally built house can be regarded as a “penalty” for the purposes of the Convention (see Hamer v. Belgium, no. 21861/03, 27 November 2007, § 60). It has thus brought such orders within the criminal head of Article 6 of the Convention having regard to the classification and nature of the offence under Belgian law. In the Belgian case, however, the applicant’s complaint concerned a reasonable time. In the present case the applicants are complaining about the consequences of the penalty for unlawful interference with the highway on the house of which they claim to be the owners, and they question the “proportionality” of the “penalty” in question. The Court does not consider it necessary to determine whether Article 6 of the Convention is applicable to the proceedings in question under its civil or criminal head because it considers it more appropriate to consider the question of the proportionality of the measure under Article 1 of Protocol No. 1. Accordingly, the Court will reclassify the complaint formulated by the applicants, the question of the consequences of tolerance on the part of the authorities on possible pecuniary interests having given rise to a discussion before it under Article 1 of Protocol No. 1 (see Hamer, cited above, and Öneryildiz v. Turkey [GC], no. 48939/99, ECHR 2004).
In that connection the Court notes that the parties have diverging views regarding the question whether the applicants have a “possession” within the meaning of Article 1 of Protocol No.1 and thus whether that provision applies in the instant case. However, it considers that this question, particularly whether the imprescriptibility and inalienability of maritime public property preclude the applicability of Article 1 of Protocol No. 1, lends itself rather to an examination of the merits of the complaint under the latter provision.
As to the rest, the Court considers, in the light of all the arguments put forward by the parties, that the complaint raises serious issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application inadmissible has been established.
B. The administrative offence of unlawful interference with the highway established against the applicants’ mother, and the order to demolish the house issued against the applicants by the authorities, examined under Article 8 of the Convention
1. The Government
The Government raised an objection of inadmissibility on the ground that the complaint based on an alleged violation of Article 8 had never been raised by the applicants before the domestic courts and did not appear in their application form. In the alternative, they argued that Ms Brosset’s heirs could not rely on her rights under Article 8. They explained that under French law the right to respect for private life should be considered as being extinguished on the death of the holder of that right.
The Government also submitted that it had not been established that the applicants had elected the house in question as their home. The materials in the case file showed that they were not domiciled in Arradon. Furthermore, they had not provided proof of strong ties with the house such that it could be regarded as their “home” within the meaning of Article 8 of the Convention.
In the alternative, the interference was in accordance with the law and pursued a legitimate aim, namely, guaranteeing everyone access to maritime public property and reinforcing this by protecting the natural state of the seashore with the “Coastal Areas” Act. With regard to the necessity of the interference in a democratic society, the Government pointed out that the house had been built illegally, albeit unbeknown to the applicants, and that they had “alternative accommodation” (Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I) as declared by them under “domicile” in their application form. Moreover, the Prefect of Morbihan had attempted to reconcile the social need to protect maritime public property and the coastline from illegal construction with Ms Brosset’s legitimate attachment to the house of Pen ar Men by offering to allow her to use the parcel of land in question for a purpose other than that for which it had been designated; she had refused, however. The conduct of the authorities had therefore been proportionate to the aim pursued.
2. The applicants
The applicants disputed the definition of home given by the Government. They stated that the house in question, although not their only residence, was occupied several months per year by their families, who were very attached to the place. The house was perfectly and regularly maintained, full of objects and possessions that were a daily testimony to its historical and family past and could be regarded as their “home” within the meaning of Article 8 of the Convention.
The applicants also submitted that the interference was not justified. The “Coastal Areas” Act was not infringed as long as the toll path was maintained and freely passable. The requirement to restore the land was not binding since the house had never been destroyed by the authorities. It was part of the national cultural heritage and was perfectly integrated into the landscape.
3. The Court
The Court reiterates that the proceedings instituted by their mother and then by the applicants before the domestic courts concerned the court judgment ordering them to restore the seashore to the state it had been in prior to the erection of the house occupied by them and the Prefect’s refusal to grant a permit to build a dyke on the parcel of land on which the house stands. These factors are sufficient to consider that the case concerned the right to respect for one’s “home”, at least in substance, in the proceedings before the domestic courts.
The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and that it does not consider itself bound by the characterisation given by an applicant or a government. By virtue of the jura novit curia principle, it has considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it. In other words, a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44, and Berktay v. Turkey, no. 22493/93, § 168, 1 March 2001).
Consequently, the Government’s plea of inadmissibility must be dismissed.
As to the rest, the Court considers, in the light of all the arguments submitted by the parties, that the complaint raises serious questions of fact and law that cannot be resolved at this stage of the examination of the application but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible under Article 1 of Protocol No. 1 and Article 8 of the Convention, without prejudging the merits of the case.
BROSSET TRIBOULET AND OTHER v. FRANCE DECISION
BROSSET TRIBOULET AND OTHER v. FRANCE DECISION