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Cite as: [2010] ECHR 382
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GRAND CHAMBER
CASE OF BROSSET-TRIBOULET AND OTHERS v. FRANCE
(Application no. 34078/02)
JUDGMENT
STRASBOURG
29 March 2010
This judgment is final but may be subject to editorial revision.
In the case of Brosset-Triboulet and Others v. France,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Nicolas
Bratza,
President,
Jean-Paul
Costa,
Peer
Lorenzen,
Françoise
Tulkens,
Josep
Casadevall,
Karel
Jungwiert,
Nina
Vajić,
Rait
Maruste,
Anatoly
Kovler,
Ljiljana Mijović,
Renate
Jaeger,
David
Thór Björgvinsson,
Ineta
Ziemele,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
George
Nicolaou,
Zdravka
Kalaydjieva,
judges,
and
Michael O'Boyle, Deputy
Registrar,
Having deliberated in private on 11 February 2009 and on 3 February 2010,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
On 26 November 2008 the Registry was informed that the applicant Eliane Brosset-Pospisil had died on 14 May 2008 and that her daughters, Mrs Sophie Epiard and Ms Elisabeth Pospisil, wished to continue the proceedings in her stead.
There appeared before the Court:
(a) for the Government
Mrs E. Belliard, Director
of Legal Affairs, Ministry of
Foreign Affairs, Agent,
Mrs A.-F.
Tissier, Head of the Human Rights Section,
Department of Legal
Affairs, Ministry of Foreign
Affairs,
Mrs M.-G. Merloz,
Drafting Secretary, Human Rights Section,
Department of Legal
Affairs, Ministry of Foreign
Affairs,
Mrs C. Stoven, research
officer for the economic and tourist
development of beaches, and
litigation officer,
Natural Maritime Public Property
Litigation
Department, Ministry of Ecology, Energy
and
Sustainable Development,
Mrs D. Medjaed, Trainee judge, Department of Legal
Affairs,
Ministry of Foreign Affairs,
Mr P. Bourreau, Director for the
département, State
Property Office,
Directorate-General of Public
Finances, Ministry of the Budget,
Advisers;
(b) for the applicants
Mr P. Blondel, Member
of the Conseil d'Etat and Court
of Cassation
Bar, Counsel.
The Court heard addresses by Mr Blondel and Mrs Belliard.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The house in issue
11. 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. ...
...
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 ...”
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. ...
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 concession 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 ...”
13. By a decision of 3 February 1938 the Prefect granted S.'s widow, the applicants' mother's aunt, authorisation to occupy the dyke for five years, specifying that the “dyke shall have a total surface area of 333.98 sq. m, but that the condition of accessibility to the public shall reduce the taxable surface area to 303.98 sq. m ... a strip of land running the entire length of the dyke shall be reserved ... as a public right of way”.
“There appeared before me
Mrs Mangin, widow of Mr S, who has ... made an inter vivos gift to ...
Mrs Mangin, widow of General Brosset, her niece
of the property belonging to her in the municipality of Arradon called the Isle of Irus.
Description: the Isle of Irus hereby conveyed comprises the entire island and all the immovable property of which it is composed, registered in the land registry as an area of twelve hectares ...
Conditions: The gift is made on the following conditions ... The donee shall take the property in its current state without any right of action against the donor on any ground whatsoever and shall enjoy the property from the date hereof, which is the date of entry into possession. ... She shall pay taxes and insurance premiums against fire from the date hereof.
Civil status – authorisation ... The said gift was authorised by the Prefect of Morbihan on the twenty-first September 1945. ...”
“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. ...”
B. Administrative proceedings
“You have asked me to consider the possibility of having the dyke built on maritime public property that you occupy at Pen-Er-Men reclassified as private property, apparently with a view to acquiring the dyke and the property built on it ...
I regret to inform you that the classic method of conceding property whereby the concessionnee of the property acquired full title, under Article L. 64 of the Code of State Property, to land that had been drained was abandoned by ministerial circular some years ago, on grounds of lack of proven general interest. Your request goes against this policy and I repeat the conditions stipulated in my letter of 6 September with a view to regularising your situation.
Regularisation in this way could be done on the terms set out in the draft agreement attached. I should point out that the property fee will be adjusted upwards in order to take account of the particular nature of the occupancy of the property.”
21. 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.
“In accordance with Article L. 64 of the Code of State Property, “the State may concede, on conditions it shall determine ... the right to build a dyke”. Whilst section 27 of the aforementioned Act of 3 January 1986 has reduced the scope of application of that Article, it does nonetheless specify that “land draining carried out prior to the present Act shall continue to be governed by the previous legislation”. Accordingly, the only provisions applicable to the present case are Article L. 64 of the aforementioned Code and the Maritime Public Property Act of 28 November 1963, which provides that ... “subject to any contrary provisions of deeds of concession, land artificially removed from the action of the tide shall be incorporated into the category of maritime public property”. In rejecting the request on the basis of the principles and guidelines laid down in the inter-ministerial circular of 3 January 1973 setting out the policy to be followed for the use of maritime public property, the Prefect – when examining the applicant's particular situation involving an application for a concession – did not err as to the scope of the circular in question, which neither repeals nor amends the above-mentioned legislative provisions but is limited to applying them.
The aforementioned circular, which instructs the authorities responsible for deciding whether or not to grant concessions to build dykes not to transfer title to the plots of land thus created and to accept only installations designed for collective use, to the exclusion of private dwellings, was issued in respect of an area in which the relevant authorities have discretionary power. In referring to the principles laid down in the circular, the Prefect does not appear to have interpreted the legislative provisions inaccurately; nor did he fail to consider the specificity of the applicant's proposal before concluding that there was no special factor justifying an exemption from the instructions analysed above.”
“... The rules governing public property
“... The purpose of prosecuting someone for the administrative offence of interference with the highway is to preserve the integrity of public property. As can be seen from the judgment delivered by the court today in case no. 941506, the land on which Mrs Brosset's dwelling house was built is indeed public property.
The administrative courts base their determination of the substance of artificial public property on the judicial interpretation of any private deeds that may be produced whose examination raises a serious difficulty. In the present case the dyke and the house are not publicly owned property, given the exclusively private use made of them and the fact that they do not belong to a public authority. Accordingly, as it is not seriously disputed that the property in question has been appropriated for private use, it is not necessary to adjourn the application. ...
Whether there has been unlawful interference with the highway
... Whilst Mrs Brosset has full title to the dwelling house occupied by her and maintains that she is therefore not the unlawful occupant of public property, the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a concession to build a dyke or another type of concession. The investigation into the facts and, in particular, the absence of any documents evidencing that a concession 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 the expiry of that period, Mrs Brosset shall pay a fine of 100 francs per day's delay in the event of failure to comply with the present judgment and the authorities shall be authorised to enforce it at the cost and risk of the offender.”
With regard to the application relating to the offence of unlawful interference with the highway, the court noted first of all that Mrs Brosset had died during the proceedings and decided that the prosecution was therefore now extinguished. In respect of the State property proceedings, the Administrative Court of Appeal gave the following reasons for its decision:
“ ... Firstly, it is not disputed that the parcel of land on which the dyke on which the house was built ... was entirely covered by water, independently of any exceptional meteorological circumstances, prior to the draining works undertaken in order to build the dyke. It has not been established, or even alleged by the applicants moreover, that the undrained portion of this land had ever been removed from the action of the tide. The investigation shows, moreover, that the dyke is the result of land draining carried out prior to the entry into force of the aforementioned Act of 28 November 1963 and that, notwithstanding the various authorisations of temporary occupancy granted by the authorities, as this was not done in the manner prescribed for concessions for the construction of a dyke it has not had the effect of bringing this part of the land thus removed from the action of the tide outside the category of maritime public property. 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 legally and its occupancy accepted by the authorities for a very long time and tolerated even after the expiry of the last authorisation to occupy it do not alter the fact that the land falls within the category of maritime public property.
Secondly, as has been said, 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 proposed draft occupancy agreements to Ms Brosset in order to regularise the situation, which, moreover, she has not taken up. ...
Fifthly, [the obligation to restore the site to its original state] does not constitute a measure prohibited by the requirement of Article 1 of Protocol No. 1 that no one shall be deprived of his possessions except in the public interest.”
Regarding the refusal to grant a concession to build a dyke, the Administrative Court of Appeal held as follows:
“... Secondly, as section 27 of the above-mentioned Act of 3 January 1986 provides that draining works carried out prior to enactment of that Act shall continue to be governed by the previous legislation, the provisions codified under Article L. 64 of the Code of State Property according to which “the State may concede, on conditions it shall determine ... the right to build a dyke ...” are applicable.
The Prefect of Morbihan based his decision not to grant Mrs Brosset the requested concession to build a dyke on the guidelines set out in the circular of 3 January 1973 issued by the Minister for Economic Affairs and the Minister for Regional Development on the use of public property other than commercial or fishing ports. He did not discern any general-interest ground in favour of granting the applicant's request.
By instructing the authorities responsible for granting concessions to build a dyke not to allow any plot of land whatsoever falling into the category of public property to be reclassified as private property with a view to transferring full title thereto, the ministers signatory to the circular of 3 January 1973 did not adopt any legal rules amending or supplementing the above-mentioned provisions of Article L. 64 of the Code of State Property but confined themselves to applying them. Accordingly, as stated above, the plot of land in question is State-owned public property. There is no evidence in the case that the Prefect, before reaching his decision, either failed to examine the particular circumstances of Mrs Brosset's request or made a manifest error of assessment in concluding that there was no special feature or general-interest consideration in the case justifying an exemption from the above-mentioned rules”.
“ ... The appellants have not acquired any property right over their houses; nor have they acquired rights in rem over public property as a result of the successive transfers. 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... . Lastly, and despite the fact that we are not especially enthusiastic about the outcome of this case, we have no alternative but to dismiss the appellants' pleadings. ... They probably committed a tactical error in refusing the Prefect's reiterated offer. Even if they were not exactly delighted by the prospect, it was at least preferable to a straightforward demolition order which will have to be judicially enforced at their expense. All hope is perhaps not lost of renewing contact with the authorities with a view to finding what might be a less drastic solution.
There may be a case for suing the State in tort for allowing occupants of public property to nurture for almost a century the hope that they would not be ruthlessly compelled to demolish their property. It should be pointed out that the prospects of success of such an action are fairly slim, however, given the legitimate protection enjoyed by public property. In any event, it is clear that if the public authority were to be found liable, the offenders would bear a considerable portion of liability too.”
“I have received some information from the Brittany Regional Cultural Affairs Department. It appears first of all that your house was not specifically listed by the Regional Inventory Service when they drew up an inventory for the Vannes-Ouest district in the early 1990s. However, Pen er Men Bay is well documented, as can be seen from a photograph available at the Inventory Service, in which your house appears very clearly. Furthermore, the Inventory Service has told me orally that if an inventory of the Vannes-Ouest district were to be carried out today, your house, and others in the same situation, would definitely be listed.
In any event, the Inventory Service could usefully make submissions on your behalf to the Public Works Department for the département, among others, with a view to protecting the region's cultural heritage if a further threat of demolition were to be made.
As regards, lastly, the possible classification or registration of your house in the supplementary list of historical monuments, you should not count on this, firstly because the State does not consider you as owner and secondly because it is inundated with requests, especially in the Morbihan. For the time being, given that the Public Works Department appears kindly disposed to your problem, I am not particularly worried.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Maritime Public Property and management thereof
1. The protection of maritime public property
Colbert's Ordinance of the Marine was definitively repealed in 2006. Since 1 July 2006 the General Code of Property owned by Public Bodies (Code general de la propriété des personnes publiques – “the CGPPP”) has replaced the Code of State Property (dating from 1957). It restructures the law governing State-owned land and public bodies and combines the rules governing maritime public property into a whole, including provisions relating to the environment in particular.
2. Substance of natural maritime public property
1. The seabed and marine substrata between the external boundary of the territorial waters and, on land, the foreshore.
The foreshore comprises the whole area covered (and uncovered) by the sea, up to the high tide mark under normal meteorological conditions;
2. The beds and sub-strata of salt pans communicating directly, naturally and permanently with the sea;
3. Land naturally reclaimed from the sea:
a) which was part of the State's private property at 1 December 1963, subject to third-party rights;
b) which has been constituted since 1 December 1963.
...
5. Land reserved for public-interest maritime, seaside or tourist needs which has been purchased by the State.
'Land artificially removed from the action of the tide shall remain in the category of natural maritime public property unless otherwise stipulated in legally concluded and lawfully executed deeds of concession transferring ownership'.”
3. Protection of maritime public property
a) Principle of inalienability
b) Conservation policy
40. According to the Conseil d'Etat, conservation agencies have a duty to prosecute offenders (CE Ministre de l'équipement v. Association “des amis des chemins de ronde”, 23 February 1979). Regarding a plot of land incorporated into maritime public property at Verghia beach (southern Corsica), the Conseil d'Etat decided that “the fact that M.A. produced title deeds to the property in question and had been authorised to build on the land under the regional planning legislation, as distinct from the legislation governing maritime public property, does not mean that the offence of unlawful interference with the highway has not been made out and, in any event, cannot preclude prosecution by the Prefect ...” (CE, no. 292956, 4 February 2008). With regard to repairing damage caused to public property, the actual attitude adopted by the authorities prior to bringing proceedings for unlawful interference with the highway has been deemed to give rise to rights in favour of the offender, including the right not to assume personal responsibility for restoring the site to its original state (CE, Koeberlin, 21 November 1969).
4. Use of maritime public property
Private occupancy must be compatible or in conformity with the designated use of the public property. Unlike collective use, it is subject to authorisation, issued personally, and a charge and is of a precarious nature.
Article L. 28 of the Code of State Property (Article L. 2122-1 of the CGPPP) provided that
“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 use 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 charges in respect of which the Treasury Department has been defrauded, without prejudice to the institution of proceedings for unlawful interference with the highway.” [Article A 26 specified that authorisation was revocable without compensation].
B. Law no. 86-2 of 3 January 1986, known as the “Coastal Areas Act”, on the Development, Protection and Enhancement 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.
Subject to specific provisions regarding national defence and the requirements of maritime safety, any substantive change of use of zones of maritime public property shall first be the subject of a public inquiry ...”
“Subject to sea defence operations being carried out and the construction of structures and installations required for maritime safety, national defence, sea fishing, salt works and marine cultures, the natural state of the seashore, outside port and industrial port areas, may not be damaged, especially by dyke construction, drainage, rock filling or embankment forming, except for structures or installations related to providing a public service or carrying out construction work for which the seaside location is essential for topographical or technical reasons that have been declared of public interest.
However, land draining carried out prior to the present Act shall continue to be governed by the previous legislation.”
“... there is an acute sense of unfairness when an application for planning permission is turned down in respect of a site where the presence of buildings would appear to suggest that at other times the authorities have been less particular. ...
The right to enjoy “for life” but not to transfer a dwelling house built on maritime public property, as recognised in an agreement signed with the Prefect, the right granted to a married couple until their death to camp or park their caravan in a zone in which camping was now illegal, together with an agreement expressly stipulating that the right could not be inherited, illustrate the creativity shown by the authorities in this regard in Charente-Maritime and the Morbihan. ...
All sorts of liberties are increasingly being taken in various degrees of good faith. ... Should we simply ignore the development of a black market in permits to occupy public property ... Should we not be attempting to establish liability on the part of public officials who in the course of their administrative duties have knowingly contributed to creating or exacerbating an illegal situation? ...”
“The purpose of the Coastal Areas Act is to maintain or develop tourism in coastal areas. Sections 3 to 8 of the Act, in particular, lay down the conditions in which the public may visit natural sites, the seashore and the corresponding facilities. The provision of coastal paths goes some way towards giving effect to these legislative provisions. ... The public can continue to walk along the coast by virtue of an easement over private properties and a right of way over public land that may belong to the State (maritime public property), the Coastal Protection Agency or local and regional authorities ... .
Making a pathway often requires an on-site study of the terrain in order to determine whether the coastal area in question can be opened to pedestrians without harming the fauna, the flora or the stability of the soil. If the land is considered to be accessible without any risk to the environment, regard will have to be had to where the path is routed, particularly across private property, it being observed that the statutory route (three metres in width running along the boundary of maritime public property) is not always the most appropriate solution. If the statutory route across private properties has been modified, a public inquiry must be carried out. ...”
C. Comparative law
D. Council of Europe texts
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ...”
57. First of all, the Court takes note of the death of Eliane Brosset-Pospisil on 14 May 2008 and of the wish expressed by her heirs, namely, her two daughters, to continue the application before the Court in their own right and as their mother's heirs. In accordance with its case-law, the Court finds that they have standing to continue the application in the applicant's stead (see Loyen and Others v. France, no. 55926/00, § 25, 29 April 2003).
58. However, for practical reasons the present judgment will continue to refer to Eliane Brosset-Pospisil as “the applicant” despite the fact that this status should now be conferred on her daughters.
A. Applicability: existence of a “possession”
1. The parties' submissions
The applicants
59. The applicants reiterated the autonomous nature of the concept of “possessions” (Öneryıldız v. Turkey [GC], no. 48939/99, § 95-96, ECHR 2004-XII). In their submission, the rule that maritime public property was inalienable did not mean that in the present case the house was res nullius and did not fit into any legal category. The house had been built a hundred years ago and they had not been told that it had been built illegally when it had been received as a gift, with the deed of 1945 referring to the authorisation given by the Prefect. Having been kept in the dark for a long time about the possible demolition of their house thus acquired, the applicants referred to the decades spent peacefully in a strong social and family environment. They also pointed out that the house was liable to taxes and duties. The State had therefore de facto recognised a proprietary interest attaching directly to the house in question and to the movable property in it.
b) The Government
2. The Court's assessment
B. Merits
1. The parties' submissions
The applicants
72. The applicants challenged the ruthless application of the Coastal Areas Act to their case, forbidding their private use of the land. The authorisation to occupy the property that had been systematically renewed since the 1900s should have had a bearing on the implementation of section 25 of the Coastal Areas Act. That provision specified, moreover, that account had to be taken of neighbouring land designated for public use; however, the house was surrounded by privately owned land and buildings and not undeveloped coastland. Furthermore, the Act did not contain any clear, binding measure. Authorisation had been renewed after the Act had been passed in 1986. Accordingly, however worthy a cause environmental conservation was, the legislation relied on did not, the applicants argued, have the scope attributed to it by the Government.
They considered it contradictory to propose, on the one hand, authorisation to occupy subject to conditions and, on the other hand, should that proposal be refused, to brandish the threat of demolition in the public interest. Demolition would be difficult, moreover, in a landscape that was part of a listed site. They submitted that they were not the only ones in this position; other houses in the neighbourhood were also to be demolished, but never had been because such a measure had not been deemed to be dictated by the legitimate aims of environmental conservation and ensuring access to the shore.
b) The Government
The continued presence of the house impeded access to the shore at high tide, thus contravening the right of free pedestrian access to the beach. According to the Government, the house was an insuperable obstacle to the public right of way. Restoring the land to its original state would reinstate public access to maritime property and to a site listed in the local land-user plan under a zoning system for the protection of specific natural areas.
2. The Court's assessment
Admittedly, the applicants have had peaceful enjoyment of the “possession” for a long time. The Court does not, however, see any negligence on the part of the authorities, but rather tolerance of the ongoing occupancy, which has, moreover, been subject to certain rules. Accordingly, there is no evidence to support the applicants' suggestion that the authorities' responsibility for the uncertainty regarding the status of the house increased with the passage of time (see paragraph 63 above). The exceptional length of the occupancy and certain hesitations on the part of the authorities (see paragraphs 18 and 31 above) should be viewed in the context at the relevant time, when development and environmental concerns had not yet reached the degree witnessed today. It was not until 1986 that the applicants' situation changed, following the enactment of the Coastal Areas Act which put an end to a policy of protecting coastal areas merely by applying the rules governing public property. In any event, the aforementioned tolerance could not result in a legalisation ex post facto of the status quo.
Allowing an exemption from the law in the case of the applicants, who cannot rely on acquired rights, would go against the aims of the Coastal Areas Act (see paragraphs 46 to 50 above) and undermine efforts to achieve a better organisation of the relations between private use and public use (see paragraph 51 above). Moreover, the applicants have not provided proof of any inconsistency on the part of the authorities in applying such a policy, either by showing that neighbours in a similar situation have been exempted from the obligation to demolish their house or by referring to any overriding higher interest, be it architectural and/or dictated by a concern to protect the national heritage, as the house has clearly not been listed.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life [and] 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.”
FOR THESE REASONS, THE COURT
1. Holds unanimously that Mrs Eliane Brosset-Pospisil's heirs have standing to continue the present proceedings in her stead;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 29 March 2010.
Michael O'Boyle Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
– concurring opinion of Judge Casadevall;
– joint partly dissenting opinion of Judges Bratza, Vajić, David Thór Björgvinsson and Kalaydjieva;
– partly dissenting opinion of Judge Kovler.
N.B.
M.O.B.
CONCURRING OPINION OF JUDGE CASADEVALL
(Translation)
JOINT DISSENTING OPINION OF JUDGES BRATZA, VAJIĆ, DAVID THÒR BJÖRGVINSSON AND KALAYDJIEVA
In the first place, the dyke on which the applicants' house was built, and the house itself, were constructed very many years before the 1986 Act, which itself drew a distinction between works which had been carried out before and after the coming into effect of the Act, the former continuing to be governed by previous legislation. Both the dyke and the house were likewise constructed long before the Code of State Property 1957 and the Ministerial circular of 1973 which prohibited the grant of concessions to carry out works on the seashore and to occupy maritime public property, a prohibition which was later confirmed by the 1986 Act.
The grounds for the decision were, instead, that the house which was privately occupied had been constructed on public land and that it restricted public access to the foreshore. We have difficulty in finding that either of these two grounds, which had persisted since the house was first erected at the beginning of the century, were sufficient to justify what the judgment correctly describes as “a radical interference” with the applicants' possessions.
PARTLY DISSENTING OPINION OF JUDGE KOVLER
(Translation)
For the same reasons as those expressed in my dissenting opinion in the case of Depalle, I deplore the fact that the Court discarded the question of the applicability of Article 8 in the present case too quickly.
1. “Et quidem naturali jure communia sunt omnium haec: aer et aqua profluens et mare et per hoc litora maris”: And, in accordance with natural law, air, flowing water, the sea and, accordingly, the seashore are common property belonging to everyone (Institutes of Justinien, Book II, Title I De rerum divisione).