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THE FACTS

The applicants, Mr Francis Leveau (“the first applicant”) and Mr Jean-François Fillon (“the second applicant”), are French nationals who were born in 1959 and 1955 respectively. The first applicant lives in Coudray-au-Perche and the second applicant in Autels-Villevillon, in the département of Eure-et-Loir. They were represented before the Court by Mr C. Charles, a lawyer practising in Paris. The respondent Government were represented by their Agent, Mr R. Abraham, who was succeeded as Agent by Ms E. Belliard, Head 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.

The applicants both run farms rearing pigs for meat production. This type of farm is subject to the legislation on establishments classified for the purposes of environmental protection (Law no. 76-663 of 19 July 1976).

The applicants’ farms were inspected by the veterinary services department of Eure-et-Loir, as a result of which criminal proceedings were instituted against the applicants.

The first applicant was convicted of running the farm without giving prior notice, while the second applicant was convicted of running his farm without obtaining prior authorisation from the prefect.

1. The case of the first applicant (Mr Leveau)

The first applicant, Mr Leveau, co-manages with his wife a limited liability farm company by the name of EARL Leveau.

On 27 December 1996 the applicant acquired a farm situated a few kilometres from his place of residence (Coudray-au-Perche), in the neighbouring municipality of Les Etilleux.

In a letter of 5 February 1997 the applicant’s wife informed the veterinary services department that she and the applicant had purchased the farm and planned to construct a building for raising pigs on deep straw bedding, designed to accommodate 449 meat-producing pigs. The letter also informed the department that notice to that effect would be given by July 1997.

On 27 February 1997 the inspector of establishments classified for the purposes of environmental protection carried out an inspection of the piggery. The applicant arrived in the late morning while the inspection was in progress.

In a report drawn up the same day, the inspector noted that there were around 210 fattening pigs on the farm. As an establishment housing between 40 and 450 pigs, the farm fell into the category of classified establishments in respect of which notice had to be given to the prefecture (heading 2102). The inspector’s report stated that the applicant, who had arrived on the farm during the inspection, had been unable to provide a document from the prefecture of Eure-et-Loir acknowledging receipt of the required notice.

On 17 April 1997 the applicant was interviewed by officers at Authon-du-Perche gendarmerie station. He referred to the letter of 5 February 1997 stating his intention to give notice by July 1997.

On 5 August 1997 the public prosecutor at the Chartres tribunal de grande instance summoned the applicant to appear before the Nogent-le-Rotrou Police Court on a charge of operating a classified establishment without giving prior notice. The establishment in question housed 210 fattening pigs, so that it came under heading 2102 of the classification and was subject to notice. At the outset of the trial the applicant objected that the proceedings were void because a senior police officer (officier de police judiciaire) had entered his home unlawfully for the purposes of Article 76 of the Code of Criminal Procedure, the inspector’s visit having taken place in the farmer’s absence and without his express consent. He further objected that the inspector’s report was invalid, as it had not mentioned his status as a senior police officer or provided accurate details as to the number and weight of the pigs.

In a judgment of 27 March 1998 the Police Court dismissed the objection, finding as follows:

“Unless it were to be argued that the defendant had made his home in the piggery, which was hardly the case, the building housing the pigs cannot be considered to satisfy the criteria for a ‘home’.

Accordingly, it must be held that the inspector did not conduct a search or enter the applicant’s home unlawfully. Nor is it necessary to respond to the unfounded assertion that inspectors of establishments classified for the purposes of environmental protection have the status of senior police officers, which they patently do not.

The inspector merely made use of his powers to inspect at any time the establishments for which he is responsible under section 13 of Law no. 76-663, without his being bound by the rules governing searches.”

On the merits, the court found the applicant guilty of operating a classified establishment without giving prior notice, and sentenced him to payment of a fine of 6,000 French francs (FRF), equivalent to 915 euros (EUR).

The applicant appealed.

In a judgment of 20 November 1998 the Versailles Court of Appeal ruled as follows on the objection that the proceedings were void as there had been a violation of Article 8 of the Convention.

“The concepts of ‘private life’ and ‘home’ remain confined to the personal sphere, although they may in certain circumstances encompass professional and commercial activities.

The visit by the inspector of classified establishments was conducted in accordance with the provisions of section 13 of the Law of 19 July 1976 ... in a piggery used solely for agricultural purposes which was a potential source of harm to the environment, and in no sense in a ‘home’ within the meaning of Article 8 of the European Convention on Human Rights. The first objection should therefore be dismissed.

Furthermore, reports by inspectors of classified establishments are generally drawn up during the inspection, which constitutes an administrative measure. The provisions of Article 76 of the Code of Criminal Procedure do not therefore apply. In any event, the inspectors’ powers derive from section 13 of the Law of 19 July 1976, which confers specific powers derogating from ordinary police procedure. Section 13 states that inspectors ‘may inspect the establishments under their supervision at any time’. The intention of the law in this respect is to allow the prefecture to ensure that classified establishments which, by definition, are a potential source of harm or nuisance to the community, are being operated in accordance with the relevant legislation or rules. Applying the provisions of Article 76 to the supervision of these establishments would deprive the measures laid down by Law no. 76-663 of 19 July 1976 of any effect.”

The Court of Appeal upheld the applicant’s conviction at first instance but, noting that the situation had been regularised in the meantime, reduced the fine to FRF 3,000 (EUR 457).

In a judgment of 26 April 2000, served on the applicant on 7 June 2000, the Court of Cassation dismissed an appeal by the applicant, finding that the appellate court had given reasons for its decision, notably in the following terms:

“... inspections of establishments under their supervision, carried out under section 13 paragraph 2 of the Law of 19 July 1976 by the inspectors of classified establishments, do not constitute general searches or house searches within the meaning of Articles 59 and 76 of the Code of Criminal Procedure.”

2. The case of the second applicant (Mr Fillon)

The second applicant, Mr Fillon, runs a farm. In 1980 he built a unit on the farm to house pigs for breeding and fattening.

The ground plan supplied by the applicant shows that the farm comprises a collection of several farm buildings and also his house, which is set back from the buildings housing the pigs.

On 6 February 1997 the veterinary services inspector conducted an inspection of the farm, in the presence of the applicant, and produced a report noting the presence of one boar, 90 sows and around 600 meat-producing pigs. The report stated that the farm had over 450 pigs, so that it came under heading 2102 of the classification of establishments subject to authorisation by the prefecture. In his report, the inspector noted that the applicant had been unable to produce an authorisation decision from the prefecture of Eure-et-Loir, as he had not submitted the relevant application.

On 11 March 1997 the applicant was interviewed by officers at Authon-du-Perche gendarmerie station. He told them that he had increased the capacity of the farm out of financial necessity.

The public prosecutor at the Chartres tribunal de grande instance summoned the applicant to appear before the Criminal Court on a charge of operating a classified establishment, consisting of a pig farm with more than 450 animals, without prior authorisation from the prefect (heading 2102).

In a judgment of 30 June 1998 the Chartres Criminal Court set aside the report and the subsequent proceedings, finding:

“... under section 13 of the Law of 19 July 1976, these inspectors may inspect the establishments under their supervision at any time.

However, although these provisions allow them to derogate from the hours laid down for house searches by Article 59 of the Code of Criminal Procedure, they do not exempt them from the requirement set forth in Article 76 of the Code to obtain, in the case of a preliminary investigation, the prior express consent of the person concerned.

It should be noted in this connection that a farm constitutes a ‘home’.

It should further be noted that the inspection of Mr Fillon’s farm was carried out in order to ascertain the situation vis-à-vis the receipt for notice in respect of 370 sows.

Hence, the provisions of Article 76 of the Code of Criminal Procedure should have been complied with, and the infringement of those provisions renders the report and, consequently, the subsequent proceedings and prosecution invalid.”

The prosecution appealed.

The applicant argued before the Court of Appeal that the right to respect for his home guaranteed by Article 8 of the Convention applied to business premises. He maintained that the interference with his property by the inspector constituted a violation of Article 8.

In a judgment of 17 December 1998 the Versailles Court of Appeal set aside the judgment, finding:

“However, while Article 8 of the aforementioned Convention provides that everyone shall have the right to respect for his private and family life, his home and his correspondence and that a public authority may interfere with that right only under certain very stringent conditions, it is none the less true that the concepts of ‘private life’ and ‘home’ remain confined to the personal sphere, although they may in certain circumstances encompass professional and commercial activities.

In the present case, Mr Guerrin’s inspection was conducted ... in a piggery put to exclusively agricultural use ... [and], given that Mr Guerrin simply counted the animals, in no sense in the home of Jean-François Fillon, whose residence and administrative premises are separate from the piggery.

The report by the inspector of classified establishments is generally drawn up during the inspection, which constitutes an administrative measure.

Consequently, the provisions of Article 76 of the Code of Criminal Procedure do not apply.”

With regard to the merits, the Court of Appeal found the applicant guilty of not applying for authorisation as required by the rules governing his farm, and sentenced him to a fine of FRF 3,000 (EUR 457). An announcement of the conviction would be published in two local newspapers and posted at the entrance to the farm.

On 26 April 2000 the Court of Cassation delivered a judgment, served on the applicant on 31 May 2000, dismissing an appeal by the applicant and finding:

“...inspections of establishments under their supervision, carried out under section 13 paragraph 2 of the Law of 19 July 1976 by the inspectors of classified establishments, do not constitute general searches or house searches within the meaning of Articles 59 and 76 of the Code of Criminal Procedure.”

B.  Relevant domestic law

1. Law no. 76-663 of 19 July 1976 on establishments classified for the purposes of environmental protection

This Law governed all establishments which were a potential source of significant harm or nuisance to the surrounding area and the environment (section 1). It imposed legal and practical requirements on farmers, such as the requirement to obtain authorisation or give notice (see section 3 below). The 1976 Law has since been repealed and its provisions consolidated in Articles L 511-1 to L 517-2 of the Environment Code.

The relevant provisions are consolidated in Articles L. 511-1 et seq. of the Environment Code. The Law, as it stood at the relevant time, provided:

Section 1

“The provisions of this part shall cover factories, workshops, warehouses, construction sites and, in general terms, establishments owned or operated by any natural person or legal entity under public or private law which are a potential source of harm or nuisance to the surrounding area, public health and safety, agriculture, the conservation of nature and the environment or the conservation of sites, monuments and archaeological remains.”

Section 3

“Establishments which are a potential source of significant harm or nuisance to the interests referred to in section 1 shall be subject to authorisation by the prefecture ...

Establishments which, although not a potential source of such harm or nuisance, are none the less bound by the general rules laid down by the prefecture to protect the interests referred to in section 1 within the département, shall be required to give notice.”

Section 13

“The persons responsible for the inspection of classified establishments ... shall take an oath and be bound by professional secrecy ...

They may inspect the establishments under their supervision at any time.”

Section 18

“Anyone who operates an establishment without the required authorisation shall be liable to a prison sentence of between two months and one year and/or to payment of a fine of between FRF 2,000 and FRF 500,000 ...”.

2. Decree no. 77-1133 of 21 September 1977, enacted in particular to implement the Law of 19 July 1976

Section 43

“The following persons shall be liable to the fine laid down for Class 5 infringements:

1.  Anyone operating an establishment which is subject to notice without having given notice as required by section 3 of the Law of 19 July 1976 ...”.

3. Heading 2102 of the (current) classification of establishments

Pigs (establishments for rearing, selling, transporting, etc.) in pens or outdoors:

1. More than 450 animal equivalents

Authorisation

2. Between 50 and 450 animal equivalents

Notice

COMPLAINT

The applicants complained under Article 8 of the Convention that the inspections by the veterinary services had been conducted without their knowledge in their homes (on the first applicant’s business premises and on the second applicant’s business and private premises), in violation of their right to respect for their homes. The applicants argued that section 13 of the Law of 19 July 1976 (article L 514-5 of the Environment Code) was not compatible with the guarantees provided by Article 8 of the Convention.

THE LAW

The applicants alleged that their right to respect for their “homes” (the business premises of the first applicant and the business and private premises of the second applicant) had been violated as a result of the unannounced visit conducted by the veterinary services inspector without their agreement. They considered that the interference in question was not proportionate to the aim pursued. They relied on Article 8 of the Convention, which provides:

“1.  Everyone has the right to respect for ... his home ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government submitted that the applicants’ piggeries could not be regarded as “homes” for the purposes of Article 8 of the Convention.

They argued that, although the Court’s case-law extended in some cases to business premises, that did not mean that business premises could be equated with homes.

In that connection the Government considered that, according to the case-law of the Court, only “certain” business premises could be regarded as “homes”. Furthermore, the concept of “home” could be taken to encompass business premises only “in certain circumstances”, as made clear by the judgment in Société Colas Est and Others v. France, (no. 37971/97, § 41, ECHR 2002-III). In the Government’s view, that judgment should not apply in the instant case, as the applicants had lodged the applications in their own names, that is, in their capacity as natural persons and not as representatives of a legal entity. They contended that the Société Colas Est judgment related only to the business premises of legal entities.

The Government submitted that, while it was conceivable that the offices of a person engaged in a liberal profession might be equated with a “home”, it was difficult to see how the same could apply to an intensive farming enterprise.

The Government pointed out that, in the two cases in question, the buildings concerned were used for the exclusive purpose of housing several hundred pigs.

Hence, with regard to the first applicant, the Government pointed out that his piggery was located in a different municipality to his place of residence. They referred to the decisions of the domestic courts and, in particular, to the judgment delivered by the Versailles Court of Appeal on 20 November 1998, which had found that the first applicant’s piggery was “used solely for agricultural purposes ... [and] was a potential source of harm to the environment, and in no sense ... a ‘home’ within the meaning of Article 8 of the European Convention on Human Rights.”

With regard to the second applicant, whose farm was close to his place of residence, the Government said that there was no evidence that the inspection had covered any premises other than the piggery, since it had been confined to counting the animals with a view to establishing which set of administrative rules applied to the farm in question.

The Government further noted, on the basis of the reports, that in both cases the applicant had been present during the inspection. The first applicant had arrived while the inspection was in progress and the second had been present during the inspection.

The Government concluded that Article 8 of the Convention did not apply to the present case and that the two applications should be dismissed as being incompatible ratione materiae with the provisions of the Convention.

The first applicant complained that there had been a violation of Article 8 of the Convention as the inspector had conducted the inspection without notifying him and in his absence.

He argued that business premises fell within the scope of Article 8 of the Convention, which applied to his case.

The second applicant said that his pig farm was part of a collection of buildings put to various uses, as the administrative premises such as the office and the dispensary were located in the farm storeroom, between two rooms put to private use (the kitchen and the dining room). In addition, he argued that the building where the pigs were kept was attached to the farm. The business premises and private premises therefore formed an inseparable whole, his farm being a mixed-use premises, as demonstrated by a number of affidavits written by farmers who knew the farm, describing the layout of the rooms put to business and private use and stressing the mixed nature of the buildings.

The second applicant referred to the judgment of 30 June 1998 by the Chartres tribunal de grande instance setting aside the inspector’s report on the ground in particular that a farm constituted a home and that the express consent of the person concerned had to be obtained.

He considered that Article 8 of the Convention should apply to his case and that the building where the inspection had been conducted constituted a “home” within the meaning of Article 8 of the Convention and the Court’s case-law.

The Court points out that, according to its case-law, the word “domicile” has a broader connotation than the word “home” in the English text of Article 8 and may extend, for example, to a professional person’s office (see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, p. 34, § 30).

In Chappell v. the United Kingdom (judgment of 30 March 1989, Series A no. 152-A, pp. 12-13, § 26, and p. 26, § 63), the Court found that a search conducted in the home of a natural person which was also the head office of a company controlled by the person constituted interference with that person’s right to respect for his home within the meaning of Article 8 of the Convention. It subsequently recognised that, in certain circumstances, the rights guaranteed by Article 8 of the Convention might be construed as including the right to respect for a company’s registered office, branches or other business premises (see Société Colas Est, cited above, §§ 41-42).

In the instant cases the Court notes that, under the applicable provisions of domestic law, the inspector’s task was to count the pigs in order to ascertain which set of administrative rules applied to the farms (authorisation or notice) and to ensure that the applicants were complying with the rules.

The Court further notes that the domestic courts responsible for interpreting and applying domestic law took the view that the visits by the inspector to the two farms did not constitute general searches or house searches within the meaning of Articles 59 and 76 of the Code of Criminal Procedure.

Furthermore, in the present cases, the Court observes, having examined the reports, that in the course of his unannounced visit the inspector of classified establishments entered only the buildings used to house the applicants’ pigs, in order to verify that the rules governing such establishments were being complied with and to record any breaches of the legislation in his report. Hence, contrary to Mr Fillon’s assertion, the inspection did not cover the “administrative premises”.

The Court further notes that in both cases the buildings inspected are separate from the applicants’ dwellings.

In the case of the first applicant, the piggery is located several kilometres from his place of residence, in a neighbouring municipality. In the case of the second applicant, the Court notes that the ground plan of the farm shows a clear separation between the buildings used solely for keeping pigs and the private residential quarters, which are set back from them.

The Court points out that the notion of “home” can be interpreted widely and can, according to its case-law, apply to business premises. In particular, it has found, building on its dynamic interpretation of the Convention, that a company’s right to respect for its registered office, branches or other business premises could fall within the scope of Article 8 of the Convention (see the case-law cited above, and in particular the Société Colas Est judgment, § 41). However, some limits must be set to this broad interpretation of the “home” and dynamic interpretation of Article 8, to avoid flying in the face of common sense and completely subverting the intentions of the authors of the Convention. Hence, it is clear that a farm specialising in pig production and housing several hundred pigs can scarcely be described as a “home”, or even as business premises, unless perhaps the company itself were to allege unlawful entry of its head office or branches (see Societé Colas Est, cited above, § 40), which did not occur in this case. The Court further notes that, in the case of Mr Leveau, the company EARL was not an applicant. The application was lodged by the applicant in his capacity as a private individual, and not as the manager of the company running the farm, and his dwelling was clearly separate from the buildings housing the pigs.

In these circumstances, the Court considers that the applicants cannot argue that their piggeries should be regarded as “homes”, or even as business premises, for the purposes of Article 8 of the Convention as interpreted by its case-law. It finds, therefore, that Article 8 does not apply to the instant case. Hence, the applicants’ buildings used for pig production are not protected under Article 8 of the Convention.

It follows that the applications are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be dismissed in accordance with Article 35 § 4. Accordingly, there is no need for the Court to consider the lawfulness of the alleged interference, the legitimacy of the aim pursued or its necessity in a democratic society.

For these reasons, the Court unanimously

Declares the applications inadmissible.

S. dollé       a.b. baka

Registrar       President

LEVEAU AND FILLON v. FRANCE DECISION


LEVEAU AND FILLON v. FRANCE DECISION