HAVET & VANHUFFEL – Association d’avocats
The applicant and her husband built a 30 m² house on a plot of land owned by the latter in Procida, where they established their home in the early 1990s.
In August 1996, the local authorities found that the house had been built without a building permit, although such a permit was required because the land was located in a highly seismic area and an exceptional natural site.
By a judgment delivered in May 2002, the applicant was found guilty of the offence of unauthorised construction. That judgment became final in October 2003, and a demolition order was served on her.
The applicant continued to live in the house and applied for an amnesty, which was refused.
In March 2016, the applicant was formally ordered to comply with the demolition order attached to her conviction.
She lodged an appeal seeking to prevent, or at least to suspend, the demolition. The appeal was dismissed in November 2018.
She then lodged an appeal before the Court of Cassation, which dismissed it on the grounds that the demolition had been ordered fifteen years earlier and that the applicant could not have any legitimate expectation of continuing to live in a house that she had always known was built without authorisation. The Court of Cassation also found that the applicant had not substantiated her claims that the house was her only residence and that she was in financial difficulty. Overall, it held that the demolition was necessary to restore the site to its original state.
An application was then lodged before the European Court of Human Rights.
The Court dismissed the application.
According to the Court, those who, like the applicant, continue to live in a building in deliberate disregard of the law weaken their position when balancing competing interests, especially when the dwelling is located on a protected natural site and in a seismic risk area. The Court considered that it was therefore incumbent on the applicant to substantiate her position, particularly since the demolition order had been confirmed by a final judgment and several years had passed without her taking any steps to comply with it.
The Court found that the Italian authorities had duly assessed the relevant circumstances as presented by the applicant and, by finding them vague, unsubstantiated, and insufficient to outweigh the major public interest in executing the demolition order, had not overstepped their margin of appreciation in dealing with these matters. Consequently, there had been no violation of Article 8 of the Convention.
The Court emphasised that by continuing to live in the house for 15 years in deliberate defiance of the law—while being aware that it was located on a protected natural site and in a seismic risk zone—the applicant had weakened her position in the balancing exercise.
The Court concluded that the demolition order did not violate Article 8 of the Convention.
To access the judgment, follow the link below: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-245444%22]}.