The ruling no. 21198 of 2023: the principle of proportionality in the demolition order of illegal buildings

Recently, the Court of Cassation issued ruling no. 21198 on February 15, 2023, concerning a case of demolition of an illegal building that was the only home of a family. This provision offers significant insights into how the principle of proportionality should be applied in contexts of building crimes, particularly in situations where demolition could have serious consequences for the individuals involved.

The context of the ruling

In analyzing the ruling, it is essential 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 illegal dwelling constitutes the only residence of a family unit, the judicial authority must respect the principle of proportionality. This principle implies that the measure of demolition must not be excessive in relation to the objective of restoring legality.

The principle of proportionality

Demolition order - Unauthorized structure designated as the only family residence - Conventional principle of proportionality - Applicability - Conditions. In the context of building crimes, the judicial authority, in executing the demolition order of an illegal building that constitutes the only family residence, is required to respect the principle of proportionality as outlined by the conventional jurisprudence in the rulings of the European Court of Human Rights, 21/04/2016, Ivanova and Cherkezov v. Bulgaria, and the European Court of Human Rights, 04/08/2020, Kaminsk as v. Lithuania, provided that the party wishing to invoke it takes care to attach, in a precise manner, the facts supporting its respect. (In the reasoning, the Court clarified that such facts, if alleged by the author of the abuse, cannot depend on their inaction or the will of themselves or the recipient of the order, as the condemned party cannot benefit from the time unnecessarily elapsed since the date of irrevocability of the ruling, given that the injunction to demolish is precisely caused by their inaction).

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

Practical implications of the ruling

  • Need for a case-by-case assessment: each instance of building abuse must be analyzed based on specific circumstances.
  • Recognition of family rights: the protection of housing as a fundamental right implies that demolition cannot occur indiscriminately.
  • Possibility of defense: the author of the abuse bears the burden of proving that the demolition would be disproportionate to the circumstances.

In conclusion, ruling no. 21198 of 2023 represents an important step towards a more just and 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 reiterated that the principle of proportionality must be the guiding light in decisions regarding the demolition order of illegal buildings, especially when these constitute the only residence of a family. This approach not only complies with regulations but also protects the fundamental rights of citizens, ensuring a balance between legality and social justice.

Bianucci Law Firm