Judgment no. 21198 of 2023: The Principle of Proportionality in Demolition Orders for Unlawful Buildings

Recently, the Court of Cassation issued judgment no. 21198 of February 15, 2023, concerning a case of demolition of an unlawful building that constituted a family's sole residence. This ruling offers significant insights into how the principle of proportionality should be applied in cases of building offenses, particularly in situations where demolition could have serious consequences for the individuals involved.

Context of the Judgment

When analyzing the judgment, it is crucial to consider that it addresses the delicate balance between compliance with building regulations and the protection of human rights, particularly the right to housing enshrined in Article 8 of the European Convention on Human Rights. The Court established that, in cases where an unlawful dwelling constitutes the sole residence of a family unit, the judicial authority must adhere to the principle of proportionality. This principle implies that the demolition measure must not be excessive in relation to the objective of restoring legality.

The Principle of Proportionality

Demolition Order - Unlawful Structure Used as Sole Family Dwelling - Conventional Principle of Proportionality - Applicability - Conditions. In matters of building offenses, the judicial authority, when enforcing a demolition order for an unlawful building that constitutes the sole family dwelling, is required to respect the principle of proportionality as set forth by conventional jurisprudence in the judgments of the ECtHR, 21/04/2016, Ivanova and Cherkezov v. Bulgaria, and ECtHR, 04/08/2020, Kaminsk as v. Lithuania, provided that those seeking to invoke it undertake to substantiate, in a precise manner, the facts alleged in support of its observance. (In its reasoning, the Court specified that such facts, if alleged by the perpetrator of the offense, cannot depend on their inertia or the will of themselves or the recipient of the order, as the convicted person cannot profit from the time unnecessarily elapsed since the judgment became final, given that the injunction to demolish arises precisely from their inertia).

The Court referred to previous case law, emphasizing that the principle of proportionality must be applied concretely. This means that, in the presence of an unlawful dwelling, demolition cannot proceed automatically without considering the specific circumstances of the case, such as the economic and social situation of the family involved.

Practical Implications of the Judgment

• Need for case-by-case assessment: Each situation of building offense must be analyzed based on its specific circumstances.
• Recognition of family rights: The protection of housing as a fundamental right implies that demolition cannot occur indiscriminately.
• Possibility of defense: The perpetrator of the offense has the burden of proving that demolition would be disproportionate to the circumstances.

In conclusion, judgment no. 21198 of 2023 represents an important step towards a fairer and more balanced application of building laws, emphasizing the need to consider the consequences of legal actions on the rights of the individuals involved.

Conclusions

In summary, the Court of Cassation has reiterated that the principle of proportionality must be the guiding light in decisions concerning demolition orders for unlawful buildings, especially when they constitute a family's sole residence. This approach not only respects regulations but also protects the fundamental rights of citizens, ensuring a balance between legality and social justice.