Specific sanctions of european urban planning law 215
replaced with incarceration in case of non-payment) – have been considered rather
excessive by the ECHR. Moreover, assimilating the administrative fine to a penal
fine has been considered a clear violation of article 7 of the Convention (“no
punishment without law”) .
3. Reparatory Measures
Complementary to administrative criminal sanctions, national legislations of
urban planning police regulations impose traditionally, certain measures for
repairing the damage caused. From the ECHR’s point of view, such measures are
in no way similar to the “punishment”, as understood in article 7 of the
Convention. The most generally acknowledged of these measures is the restoration
of the good upon which the violation has been committed; it is, as well, the most
coherent measure, that guarantees the conformation to urban planning rules .
Restoring the good to its original condition can take different forms, according
to the violation that has been committed. If it consists in raising a building or a
certain work without permit, the restoration will consist in simply demolishing it.
On this aspect, the European Court has been seized to appreciate the conformity of
a demolition order regarding a building – in this case, a barn – without prior
authorization from the authorities, to article 1 of the First Protocol. The Court
stated that the demolition order aims to respect the general rules regarding
construction interdictions and therefore can be linked with the usage of goods, as it
is consecrated at second paragraph of article 1 of the First Protocol. But, the Court
states, this interference is taken by following a common (general) interest,
legitimate and proportionate to the full environmental protection, given that the
building itself has been constructed in a protected area.
Several decisions of the ECHR can be mentioned, that equally confirm the
legality and the proportionality of demolition decisions regarding illegally
constructed buildings, aiming to protect a forest area (Hamer v. Belgium, decision of
November 27th, 2007), the unrestricted access to the sea shore (Depalle &
Brosset-Triboulet v. France, decision of March 29th, 2010) or an archaeological site
(Vagnola spa & Madat srl v. Italy, decision of January 12th, 2010). However, in
another cause, the ECHR has appreciated that the demolition of a house deprived
its owner of their property, in the sense of the second phrase of article one, First
Protocol (Allard v. Sweden, decision of June 24th, 2003). Or, in some cases, the
demolition can concern only a constructed element, such as a wall (Fotopoulou v.
Greece, decision of November 18th, 2004).
While examining the proportionality of the violation, the Court can evaluate as
well the adequacy of the reparatory measure, in contrast with the general interest.
For instance, the Court has considered that, in a case regarding not illegal
constructions, but the breach of common ownership rules, the demolition of a
house has been, for the interested party, a special and extraordinary charge (Allard
v. Sweden). By the same reasoning, the ECHR considers that the confiscation of