CASE OF HAMER v. BELGIUM [Extracts]
Violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 6 - Right to a fair trial;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Baka;Antonella Mularoni;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
6. The applicant was born in 1955 and lives in Amsterdam. 7. In 1967 her parents built a holiday home without planning permission on land situated in Zutendaal (Belgium). According to the applicant, however, the house was built in 1962. 8. Following her mother’s death, a deed of partition was drawn up on 6 January 1986 between the applicant (who, inheriting from her mother, became the remainderman of half of the property) and her father. That deed, which specifically mentions the existence of the building, was registered with the Mortgage Registrar at the Ministry of Finance and a registration fee was paid. 9. The applicant’s father died on 21 August 1993 and she became the full and sole owner of the entire property. On inheriting the property, the applicant specifically declared in the notarised deed of distribution that the plot was a holiday home. The deeds were registered with the local authorities and the applicant paid the inheritance tax. From then on, the applicant paid an annual property tax (précompte immobilier) and secondresidence tax on the holiday home. According to the applicant, it went without saying that her father had also paid the relevant taxes on the house. 10. The applicant carried out renovations on the house costing 50,000 euros (EUR) and had the trees on the adjoining land felled. 11. In 1994 the partly government-controlled Flemish water-supply company carried out works to connect the house to the drainage and water-supply systems. There was no reaction from the local authorities at that time. 12. On 27 January 1994 a report was drawn up by a police officer who noted that trees had been felled on the property in breach of Article 81, paragraph 3, of the Flemish forestry decree of 13 June 1990. 13. On 22 February 1994 a report was drawn up by a police officer who noted that the holiday home had been erected in 1967 without planning permission and that it was located in a forested area in which no such permission could be issued. The report also noted that the exterior and roof of the house had been renovated. 14. On 8 August 1994 the applicant voluntarily reported to the police to make a statement, which was placed on record. 15. By a decision of 11 October 1994, the municipal council (collège des bourgmestre et échevins) asked the planning inspector to issue an opinion on any remedial action to be taken. By a letter of 19 June 1995, the planning inspector applied to the public prosecutor for the site to be restored to its original condition. 16. Two reports dated 26 March 1996 and 8 January 1997 mention that the police had sought to question the applicant again but had found it difficult to contact her and that she was temporarily unable to travel for health reasons. 17. At the request of the Tongeren public prosecutor, the applicant was questioned in Amsterdam on 25 March 1997 by a Dutch police officer. A report was drawn up on that occasion. 18. On 18 May 1998 the public prosecutor asked the local police to confirm whether or not the building in issue still existed. 19. A report of 16 June 1998 established that the situation had not changed. 20. The Tongeren public prosecutor issued the applicant with a summons to appear in court on 12 May 1999, firstly, for having maintained a holiday home, erected without planning permission, between 27 January 1994 and 28 April 1999 and, secondly, for having felled approximately fifty pine trees in breach of the above-mentioned Flemish forestry decree. According to the applicant, there were at least four other houses built without permission in the same forested areas, which had neither been the subject of reports establishing that an offence had been committed nor of prosecution. 21. On 25 June 1999 the Tongeren Criminal Court issued an interlocutory judgment in absentia, since the applicant had not been duly summoned. 22. On 6 January 2000 she was once again summoned to appear before the Tongeren Criminal Court. 23. On 26 May 2000 that court acquitted the applicant of the above-mentioned charges. It held in particular that after twenty-seven years the applicant could legitimately assume, as could any reasonably prudent citizen, that maintaining the building in issue would no longer constitute an offence. The court further held that it did not have jurisdiction to deal with the planning inspector’s application to have the land restored to its original condition. The prosecutor appealed. 24. By a judgment of 6 February 2002, the Antwerp Court of Appeal upheld the judgment in so far as the applicant was acquitted of the charge of felling the trees. However, it found her guilty of maintaining a building erected without planning permission, pursuant to Article 146 of the town and country planning decree of 18 May 1999, and changed the impugned period to between 22 August 1993 and 28 April 1999, having regard to the date on which the applicant’s father had died. 25. In her submissions the applicant had alleged a violation of the reasonable-time requirement under Article 6 § 1 of the Convention, considering that the criminal proceedings had been conducted beyond that time-limit and that after such a long period there had been an interference with her rights of defence, in particular since it had been impossible for her to prove that the house had been built before 1962. She had also criticised the failure of the authorities to act, pointing out that her parents had paid the second-residence tax, that a notarised deed mentioning the building had been registered by the authorities, that she had paid inheritance tax on property that included the building, that extensive infrastructure works had been carried out by a partly government-controlled company with no reaction on the part of the local authorities and that for many years no legal action had been taken. She had also alleged a violation of the principle of protection of the legitimate expectations of citizens and complained of discrimination in comparison with neighbouring property owners. 26. The Court of Appeal found that a deed of partition drawn up in 1986 and signed by the applicant established that the holiday home had been built in 1967 and concurred furthermore with the findings contained in the report drawn up on 22 February 1994. The Court of Appeal considered that the applicant knew or should have known that the building had been erected without planning permission. As a reasonable and prudent citizen, and even taking account of the attitude of the authorities as she had described it, the applicant could not have inferred that the situation was totally legal and that no proceedings would be brought against her. The Court of Appeal found that the applicant had acted most imprudently by proceeding to renovate the premises after the death of her father. It also found that the fact that four other dwellings had also been erected in the same forested area without planning permission and without their owners being prosecuted did not amount to discrimination. 27. With regard, more particularly, to compliance with the reasonable-time requirement, the Court of Appeal found that the length of the criminal proceedings had been unreasonable but that this did not alter the fact that the offence had been established and that the applicant had, since 1994, been liable to prosecution. Considering, firstly, that overrunning the reasonable time did not cause the proceedings to become time-barred and, secondly, that , and in particular of the fact that the applicant had no criminal record, the Court of Appeal merely pronounced a finding of guilt against the applicant. 28. Referring to the planning inspector’s application lodged pursuant to Articles 149 et seq. of the above-mentioned decree of 18 May 1999, which it deemed to be reasonable, the Court of Appeal ordered the applicant to restore the site to its former condition and to demolish the building within one year of the judgment becoming final, with a fine of EUR 125 per day’s delay. It also authorised the municipal council or the planning inspector to enforce the order at the expense of the applicant in the event of non-compliance with the demolition order. The applicant was also ordered to pay the costs and expenses of the proceedings. 29. The applicant appealed on points of law. 30. By a judgment of 7 January 2003, the Court of Cassation dismissed the appeal. 31. On grounds based on a violation of Article 6 § 1 of the Convention, the applicant claimed that the length of the criminal proceedings had been unreasonable and it could therefore be concluded that they were time-barred. 32. The Court of Cassation held that exceeding a reasonable time did not cause criminal proceedings to become time-barred and that, consequently, the Court of Appeal had not been bound to base its decision on that point. 33. The applicant also submitted that, bearing in mind that the Court of Appeal had merely pronounced a finding of guilt against her, she could not be bound to restore the site to its original condition or to pay the costs of the proceedings. 34. The Court of Cassation responded that restoration of the site to its original condition did not constitute a penalty but a civil measure, in the same way as the payment of the full costs of the proceedings at the fixed rate, and that consequently these measures were not inconsistent with a simple finding of guilt. 35. The court also dismissed the ground based on Article 8 of the Convention and Article 1 of Protocol No. 1 whereby the applicant alleged that after a thirty-year period during which they had tolerated the situation, thus creating an apparently lawful situation, the authorities could no longer rely on the public interest to justify interference with the peaceful enjoyment of her property rights and respect for her private life. 36. The Court of Cassation found that the Court of Appeal had held, in its unfettered discretion, that the applicant had been most imprudent in maintaining the house without planning permission, that the measure sought by the planning inspector was reasonable and that, consequently, that ground of appeal was inadmissible. 37. The house was demolished in July 2004 pursuant to an enforcement order. According to an expert, the value of the house at the material time was EUR 62,635. The demolition costs amounted to EUR 3,025. 38. The Flemish town and country planning decree of 18 May 1999 (which came into force on 1 October 1999) provides as follows. The Flemish Government shall determine the conditions that must be met by an application in order to be considered complete. Where the application concerns works, operations or modifications as referred to in Article 158, the contractor shall mention specifically which works, operations or modifications have been carried out, made or continued without permission and for which of these works, operations or modifications planning permission is being sought. The Flemish Government may allow joint applications for permission to be made to the local authority under this decree and under the decree of 28 June 1985 concerning environmental permits. The Flemish Government may determine the conditions and procedures for compiling the application file. ... Anyone who 1. carries out, continues or maintains the operations, works or modifications defined in Articles 99 and 101, either without advance permission or in contravention of that permission, or after the expiry, cancellation or lapse of the term of that permission, or where that permission has been suspended ... shall be liable, on conviction, to a prison sentence of between eight days and five years and a fine of between (EUR 26) and (EUR 400,000) or either of these penalties. All the provisions of Book 1 of the Criminal Code, including Chapter VII and Article 85, shall apply to the offences referred to in Article 146. Without prejudice to the powers of senior police officers and their assistants [agents et officiers de police judiciaire], the planning inspectors, the other civil servants appointed by the Flemish Government, and the civil servants of the province and the municipalities of the province appointed by the governor thereof shall be authorised to detect the offences defined in this part and to place them on record. The reports establishing the offences described in this part shall remain valid until any evidence to the contrary is produced. The senior police officers, their assistants and the civil servants referred to in the first paragraph shall have access to the work site and to the buildings in order to carry out any inspections and draw up any observations as may be necessary. ... § 1. In addition to the penalty, and upon the request of the planning inspector or the municipal council of the municipality on whose territory the works, operations or modifications referred to in Article 146 have been carried out, the court shall order that the site be restored to its original condition or that the illegal use cease and/or the execution of any construction or adaptation works and/or payment of a fine equal to the capital gain accrued on the property subsequent to the offence. The capital gain can no longer be claimed in the following cases: 1. in the event of repetition of an offence that has been made punishable by this decree; 2. in the event of failure to comply with a cessation order; 3. where the offence causes unacceptable planning-related nuisance for neighbours; 4. where the offence constitutes a serious breach of the essential planning requirements for intended use under a spatial development or land-use plan. The Flemish Government may determine other conditions and procedures in cases in which the capital gain cannot be claimed. Where the action brought by the planning inspector and that brought by the municipal council do not coincide, the action brought by the first-mentioned shall take priority. For execution of the remedial measures, the court shall set a time-limit of a maximum of one year and, upon expiry thereof, at the request of the planning inspector or the municipal council, a fine per day’s delay in implementing the remedial measure. § 2. An action for remedial measures shall be lodged with the prosecutor’s office by ordinary letter, on behalf of the Flemish region or the municipal council, by the planning inspectors and officials of the municipal council. § 3. Where the action involves an application for construction or adaptation works and/or payment of an amount equal to the capital gain, explicit reasons must be given for that action in terms of town and country planning, compatibility with the immediate environment and the seriousness of the offence. § 4. The application shall mention at least the relevant requirements and give a description of the situation prior to the offence. A recent extract from the planning register shall accompany the application. The Flemish Government may establish additional conditions which must be met by the letter referred to in § 2, first sub-paragraph, and the file accompanying that letter. § 5. The court shall determine the amount of the capital gain. Where the offender is ordered to pay an amount equal to the capital gain, he or she may validly discharge his or her obligations by restoring the site to its original condition or by ceasing the adverse use in the year following the judgment. The Flemish Government shall determine the method for calculating the amount to be claimed and payment of the capital gain. Where an action for remedial measures brought by the civil party on the one hand and the planning inspector or the municipal council on the other do not coincide, the court shall determine the necessary remedial measure that it deems appropriate. The planning inspector and the municipal council may also, before the court of first instance, sitting as a civil court, in the jurisdiction in which the works, operations or modifications referred to in Article 146 are wholly or partially carried out, apply for remedial measures as defined in Article 149 § 1. The provisions of Article 149 § 1, second sub-paragraph, §§ 3, 4 and 5 and Article 150 shall also apply. The offender shall immediately inform the planning inspector and the municipal council, by registered mail or by delivery against receipt, when the reparation measure imposed has been voluntarily carried out. Following a site inspection, the planning inspector shall immediately draw up a report of his findings. The planning inspector shall send a copy of the report of his findings to the municipal authority and to the offender. Unless there is any evidence to the contrary, the report of findings alone shall constitute evidence that the remedial measure has been performed and of the date thereof. Where the site is not restored to its original condition, adverse use is not ceased or construction or adaptation works are not carried out within the time-limit set by the court, the decision of the court referred to in Articles 149 and 151 shall order that the planning inspector, the municipal council and, as the case may be, the civil party may proceed to enforce the judgment themselves. The authority or individual enforcing the judgment or order shall be authorised to sell, transport and remove the materials and objects generated by the restoration of the site to its original condition or the cessation of adverse use. Any offender still in default shall be bound to indemnify all enforcement costs, less the proceeds from the sale of the materials and items, upon presentation of a statement, issued by the authority referred to in sub-paragraph two, or budgeted and declared enforceable by the civil court judge dealing with attachment of property. ... Article 158 Where the offence referred to in Article 146 does not consist of the carrying out of works or the conduct or continuation of operations or modifications that are in contravention of spatial development or land-use plans or execution of the rules laid down by virtue of this decree or the requirements of a permit to divide into plots, and where either planning permission is subsequently obtained with a view to such works, operations and modifications, or the site is restored to its original condition and the adverse use is terminated, the planning inspector may reach a settlement with the offender provided that he has paid the amount agreed in settlement within the time-limit set by the planning inspector. The planning inspector shall not propose a settlement until he has received the prior written agreement of the public prosecutor. Payment of the amount agreed in settlement brings an end to the criminal proceedings and the right of the authorities to claim compensation.” 39. By a judgment of 3 June 2005, the Court of Cassation reiterated in the following terms the scope of the powers of control of the courts and tribunals where an application is brought before them based on Article 149 of the decree of 18 May 1999: “Article 149 § 1, first sub-paragraph, as amended, of the decree must be read in the context of Article 159 of the Constitution, according to which the courts and tribunals do not apply administrative measures which are not in conformity with the law; ... According to that last provision, it is a matter for the court to assess the formal and substantive legality of the application referred to in Article 149 as amended and to ascertain whether it is in conformity with the law or whether it is founded on an abuse or misuse of powers; ... More particularly, the court must ascertain whether the authority’s decision to seek a particular remedial measure has been taken for the sole purpose of proper town and country planning; ... If it appears that the application is founded on grounds that are unrelated to town and country planning or a clearly unreasonable view of proper town and country planning, the court shall not allow the application; ... It is not a matter for the court, however, to assess the appropriateness of the measure sought; the court must allow the remedial measure sought if it is in conformity with the law.” 40. On 13 September 2005 the Court of Cassation held in another judgment that “the court must order the site to be restored to its original condition whenever that proves necessary for the purposes of eradicating the consequences of the offence”. 41. Article 12 of the royal decree of 28 December 1972 concerning the design and implementation of draft regional plans and regional plans defines forested areas as follows: “Forested areas are areas that are wooded or that are to be planted for the purposes of commercial exploitation. They may incorporate buildings that are necessary for such exploitation and for monitoring the timber, as well as hunting and fishing shelters, provided that the latter cannot be used as a residence, even on a temporary basis. Reconversion into an agricultural zone shall be allowed in accordance with the provisions of Article 35 of the Rural Code relating to the demarcation of agricultural and forested zones.” 42. Section 65 of the Town and Country Planning Act of 29 March 1962 provides: “1. In addition to the penalty, the court shall order, at the request of the delegated civil servant or the municipal council, but with their mutual agreement in the cases referred to in (b) and (c), (a) either restoration of the site to its original condition (b) or landscaping or development works (c) or payment of an amount representing the capital gain accrued on the property subsequent to the offence; ...” 43. By a judgment of 26 November 2003 (no. 154/2003), the Administrative Jurisdiction and Procedure Court (Cour d’arbitrage) considered that, although of a civil nature, a remedial measure is a matter of public policy and is, in certain respects, an ancillary penalty which cannot be dissociated from the criminal penalty; in fact, this measure is an extension of the criminal penalty because it is intended – beyond the criminal conviction – to prevent the continuation of a situation perpetuating the offence. The case-law of the Court of Cassation conflicts with that (judgments of 8 September 1998 and 16 January 2003). 44. The Law of 17 April 1878 contains the preliminary part of the Code of Criminal Procedure. A new section 21 ter, which came into force on 12 December 2000, is worded as follows: “If the length of the criminal proceedings should exceed a reasonable time, the judge may make a simple finding of guilt or impose a penalty lower than the minimum penalty provided for by law. If the judge makes a simple finding of guilt, the guilty party shall be ordered to pay costs and, as appropriate, to perform restitution. A special confiscation order shall be made.” 45. In relation to the prosecution of town and country planning offences, the Government have produced statistics covering the years 1998-2003. For the Flemish region alone, these statistics establish that, on average, 2,580 reports are drawn up every year and that 251 judgments ordering restoration were issued in 1998 (out of 453 decisions), 141 in 1999 (out of 329), 183 in 2000 (out of 328), 105 in 2001 (out of 193), 76 in 2002 (out of 129) and 131 in 2003 (out of 264).