Judgment no. 29117 of 2024: the principle of proportionality in demolition orders for illegal constructions

Judgment no. 29117 of April 17, 2024, issued by the Court of Naples, represents an important precedent in matters of building offenses and demolition orders for illegal constructions. In this context, the principle of proportionality plays a crucial role, as it requires a balance between the public interest in safeguarding the territory and the individual's property rights. This article will explore the implications of this principle, highlighting how jurisprudence has evolved to address issues of social relevance.

The principle of proportionality

The judgment in question establishes that the execution of the demolition order must comply with the principle of proportionality, as enunciated by conventional jurisprudence. This implies that, before proceeding with demolition, an assessment of the interrelationship between the public interest and the property rights of the perpetrator of the offense is necessary. In particular, the Court clarified that no weight can be given to the housing needs of third parties unrelated to the owner of the illegal property.

Demolition order - Conventional principle of proportionality - Necessary verification of the interrelationship between public interest and private interest - Existence - Limits - Indication. In matters of building offenses, the principle of proportionality, as enunciated by conventional jurisprudence, to which the execution of the demolition order for illegal constructions must conform, requires the assessment of the interrelationship existing solely between the public interest in safeguarding the territory and the protection of property rights and the related forms of enjoyment of the perpetrator of the offense or the owner of the property and their immediate family. The housing needs of third parties, holders, for any reason, of another's illegal construction, cannot be given any weight; they may, however, obtain other forms of satisfaction through social assistance measures or the rental of lawful properties.

Legal and jurisprudential references

The Court referred to several articles of the Italian Constitution, such as art. 42, which protects property rights, and art. 9, relating to environmental protection. Furthermore, articles of the European Convention on Human Rights were cited, highlighting the importance of these principles in the context of building construction and the protection of individual rights. The integration of national and European norms provides a solid legal framework for the assessment of demolition orders.

• Art. 42 Constitution: protection of property rights
• Art. 9 Constitution: environmental protection
• Art. 8 ECHR: right to respect for private and family life

Conclusions

In conclusion, judgment no. 29117 of 2024 represents a significant step in defining the principle of proportionality in matters of building offenses. It emphasizes the need to consider not only the public interest but also property rights and the specific circumstances of each case. This judgment invites a deeper reflection on how to manage conflicts between compliance with building regulations and individual rights, thus contributing to a constructive dialogue between the needs of urban development and the safeguarding of the territory.