THIRD SECTION
CASE OF GHAILAN AND OTHERS v. SPAIN
(Application no. 36366/14)
 
 
 
JUDGMENT
 
Art 8 • Respect for home • Justified demolition of applicants’ illegally constructed home and eviction • Lack of exhaustive and thorough examination of proportionality of demolition attributable to applicants’ unexplained failure to use the existing legal remedies available to them
 
STRASBOURG
23 March 2021
 
 
FINAL
 
23/06/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ghailan and Others v. Spain,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Paul Lemmens, President,
 Georgios A. Serghides,
 Dmitry Dedov,
 Georges Ravarani,
 María Elósegui,
 Anja Seibert-Fohr,
 Peeter Roosma, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 36366/14) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Moroccan nationals, Mr Abdelilah Ghailan (“the first applicant”), Ms Fatima Zahra Alami Wahabi (“the second applicant”) and their two minor children (together “the applicants”), on 3 May 2014;
the decision to give notice to the Spanish Government (“the Government”) of the complaint under Article 8 of the Convention concerning the applicants’ eviction and the demolition of their home, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicants’ eviction and the demolition of their only home. The principal issue is whether the interference with the applicants’ right to respect for their home under Article 8 of the Convention was “necessary in a democratic society” and, in particular, whether it was proportionate to the legitimate aims pursued. THE FACTS
2. The first applicant was born in 1977, the second applicant in 1984 and their two sons in 2004 and 2007 respectively. They live in Madrid. The applicants were represented by Mr F.J. Rubio Gil, a lawyer practising in Madrid. 3. The Government were represented by their Agent, Mr R.A. León Cavero, State Attorney. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The relevant background
5. According to the applicants, the first applicant moved to Spain in the late 1990s. According to the population register, the first applicant has been residing in Madrid since 2001 and the second applicant since 2003 – they got married in Morocco in 2001. The first and second applicants were at that time registered at the same address in Madrid. On an unspecified date in late 2004 or beginning 2005 – this was disputed by the parties – they started unlawfully building a house on public land in the section of the Cañada Real Galiana located within the Municipality of Madrid (“the Municipality”). They, together with one of their children (who was born in July 2004), registered it as their place of residence on 4 April 2005. At the time, the first applicant was working as a self-employed in the construction sector. The second applicant’s residence permit did not authorise her to work. The younger son was born in August 2007. According to the first and second applicants, at the time of introduction of the application to the Court they were unemployed and not receiving any unemployment benefits, and were collecting scrap to make a living. 6. The Cañada Real Galiana was a route traditionally used for the movement and transhumance of livestock (vía pecuaria). It crossed the Autonomous Region of Madrid through the municipalities of Coslada, Getafe, Madrid, Rivas-Vaciamadrid and San Fernando de Henares. Until the entry into force of the Cañada Real Galiana Act (see paragraph 42 below), the route’s legal status was defined as a property of “public domain” (public property allocated for general use or public service) of the Autonomous Region of Madrid. The route partly ran through a natural area, and was classified as land for protection of livestock routes which could not be developed (suelo no urbanizable). Any private use or construction activity was forbidden. Despite this, particularly from the 1960s, many slum houses were illegally erected in the area as the livestock route had fallen into disuse. A population census undertaken in 2011 – as required by the Cañada Real Galiana Act – estimated a population of more than 5,000 people only in the section of the Cañada Real Galiana located within the Municipality, mainly Spanish (and some foreign) nationals of Roma ethnicity (approximately 40%) followed by other Spanish nationals (27.2%) and then Moroccan nationals (26.1%). This census also reported high rates of unemployment and low incomes. Some 12% of the people living in this area were in a situation of “extreme vulnerability”. The overall population of the settlement was estimated at more than 7,000 people when those living within the Municipalities of Coslada and Rivas-Vaciamadrid were included. 7. The settlement was tolerated by the relevant authorities for many years. However, mainly from the year 2005 onwards, the Municipality started to systematically take measures against unlawful construction, initiating a large number of administrative proceedings against occupants of unauthorised buildings in order to restore legality. The municipal authorities argued that, in addition to the unlawful occupation of public property, the continuing building of illegal dwellings in the area was causing problems of public order, safety and security as well as health, educational and social problems. In 2013 the Municipality (temporarily) suspended all demolition of unlawful construction on the Cañada Real Galiana, and the proceedings to enforce them, with the purpose of giving stability and tranquillity to families in view of the ongoing process to find a final and comprehensive solution to the special problems of the Cañada Real Galiana (see paragraphs 42 and 43 below). It appears that (at the time of the adoption of the present judgment) the suspension has not yet been lifted. First demolition of the applicants’ home
8. On 17 March 2005, in the course of a regular inspection of the area, a municipal police officer noticed the non-authorised construction of a house in the Cañada Real Galiana (plot no. 40-A) by the first applicant. The police officer issued a formal warning (denuncia) to the first applicant – handing over a copy to him in person – and reported it to the relevant authorities. As a result, on 1 April 2005 the authorities of the Municipality ordered the first applicant to immediately suspend the work, warning him of the consequences of non-compliance – namely sealing off the premises, imposing a fine or requesting that the prosecutor’s office bring criminal proceedings. The order was personally served on the first applicant’s brother on 9 April 2005. The notification included information on the available (administrative and judicial) remedies against the decision. The first applicant however failed to avail himself of such remedies. 9. On 7 May 2005 the first applicant was personally served with a decision of the Municipality of 28 April 2005 stating that the construction was being carried out without the requisite planning permission on land reserved for protection of livestock routes, and that it could not be legalised as it did not meet the urban-planning regulations. The first applicant was given a fifteen-day time-limit for making comments on the demolition of the building in accordance with section 194(2) of the Autonomous Region of Madrid Land Act (see paragraph 39 below). The first applicant failed to submit any observations in that connection. 10. On 23 June 2005 the Director General for Urban Planning issued a demolition order. It obliged the first applicant to demolish the building within fifteen days, and warned him that failure to do so would prompt the authorities to enforce the order at his expense. It was personally served on the first applicant on 5 July 2005. The notification included information on the available (administrative and judicial) remedies against the decision. The first applicant failed to avail himself of them. 11. On 24 November 2005 the municipal authorities noted that the first applicant had not voluntarily complied with the demolition order and estimated that the cost to enforce the demolition would amount to 10,767.12 euros (EUR). 12. On 28 February 2006 the authorities decided to initiate proceedings to enforce the demolition order and granted a fifteen-day time-limit for the first applicant to make comments in defence of his rights. The decision was personally served on the second applicant on 7 March 2006. The applicants failed to submit any observations in this connection. 13. On 14 July 2006 municipal police officers reported and documented the building of an extension and upgrades to the applicants’ dwelling, including the building of a new floor. 14. As the applicants had failed to comply with the demolition order, on 29 November 2006 the relevant authorities ordered the enforcement of the demolition, which was later scheduled for 29 January 2007. The notification of that decision to the first applicant included information on the available (administrative and judicial) remedies against the decision. After unsuccessful attempts to serve the decision at the applicants’ dwelling, it could only be personally served on the first applicant on the same date set for enforcing the demolition order (29 January 2007). In view of this, and having regard to the fact that the applicants were effectively living in the dwelling and did not give consent to entering their home, the demolition was not carried out. The applicants did not make use of any of the remedies available to them under domestic law to challenge the aforementioned decision to enforce the demolition. 15. The authorities then requested judicial authorisation to enter the applicants’ home with a view to carrying out their eviction and the subsequent demolition of the dwelling. The application was assigned to the Madrid Administrative Court no. 7, which invited the first applicant to submit observations – that invitation was only served through posting on the court’s notice board after unsuccessful attempts to serve it through other means. On 12 September 2007 the court authorised entry into the applicants’ home (decision no. 659/07). The court, making reference to case-law of the Supreme and Constitutional Courts, clarified the scope of the instant set of proceedings. It noted that their purpose was not to conduct an exhaustive review of the administrative decisions intended to be enforced – remedy which was available by bringing an application for judicial review with the relevant administrative court as provided for by law – but to examine firstly whether the administrative decision appeared prima facie to have been rendered in accordance with the law (appearance of legality), and secondly the proportionality of the measure requested to the effect that entry into a home was absolutely necessary to enforce the administrative decision. As to the particular circumstances of the case, and having regard to the limited scope of the proceedings, the court held that the administrative decisions had strictly complied with the law and the measure requested was proportionate. The court noted that the applicants had been duly served with the demolition order and the decision to initiate its enforcement, and that despite this they had failed to voluntarily leave the house within the time‑limit given to do so. It also highlighted that the applicants had not submitted observations on the authorities’ applications within the framework of the instant judicial proceedings, despite the fact that they had been fully aware of them. Although the court decision itself expressly pointed out that the decision was subject to appeal before the Madrid High Court of Justice, the applicants did not contest the decision. 16. On 11 October 2007 the second applicant was personally served with a decision setting the exact date and time in which the demolition order would be enforced by public authorities. The presence of emergency services and police had been envisaged in anticipation of public disturbances. The municipal social services were also informed of the eviction, just in case the applicants required social support. 17. On 18 October 2007 the applicants were evicted and their home was demolished. The authorities reported serious incidents that had resulted in some people being injured, including a number of police officers. Some individuals were detained in the course of events. The expenses effectively incurred for the demolition amounted to EUR 4,708.17. Second demolition of the applicants’ home and the ensuing judicial proceedings
18. On 20 October 2007 municipal police officers reported that a large group of people had started rebuilding the applicants’ dwelling. The police closely followed up and documented the situation during the following days. On 27 November 2007 a police officer issued a formal warning to the first applicant while he was carrying out work to rebuild the house ‑ handing over a copy to him in person –, informing him of the illegality of his actions. The first applicant kept on rebuilding the house, disregarding the warnings given by the police. On 24 January 2008 municipal police officers reported that the house was practically rebuilt and that the first applicant claimed that he had been resident there while carrying out the work. 19. On 14 April 2008 the relevant municipal authorities adopted a decision requiring the first applicant to leave the dwelling and to demolish the work carried out to rebuild the house, within a non-renewable period of fifteen days. It also warned the first applicant that should he fail to comply with that obligation, a new judicial authorisation to enter his home would be requested with a view to evicting the family and demolishing the dwelling, at his expense and with the intervention of the police if need be. The decision was taken within the framework of the same administrative proceedings which had given rise to the demolition enforced on 18 October 2007. Accordingly, it stated that it was not subject to appeal on the grounds that it only reproduced the prior decision of 19 November 2006 ordering the enforcement of the demolition (see paragraph 14 above), which had become final. After unsuccessful attempts to personally serve the decision on the first applicant in his house – those staying there claimed not to know the first applicant – the decision was published in the Official Gazette of the Region of Madrid on 7 July 2008 and displayed on the notice board at the town hall of Madrid for a period of one month thereafter. 20. On 22 September 2008 municipal police officers reported that the applicants were effectively living in the house that had been rebuilt. 21. On 26 February 2009 the Governing Board (Junta de Gobierno) of the City of Madrid decided to apply for a new judicial authorisation to enter the applicants’ home with a view to enforcing the demolition order. The relevant authorities submitted the application on 23 March 2009. However, on 2 September 2009 the Madrid Administrative Court no. 8 decided to strike the application out and discontinue the proceedings (decision no. 1220/09), on the basis that a person different from the first applicant (probably because of the unofficial addresses in the area) – who had claimed not to know him – had been notified of the authorities’ application and, despite the court’s request, the authorities had failed to submit observations in that connection. The court considered that it was no longer justified to continue the examination of the application. The authorities did not lodge an appeal against that decision and it accordingly became final. 22. On 23 October 2009 the municipal authorities again notified the first applicant of their decision of 14 April 2008 (see paragraph 19 above). This time it was personally served on him on 28 November 2009. On 12 December 2009 the first applicant requested that the authorities send any further notifications to the professional address of his legal representative. He also claimed to be residing in the house in the Cañada Real Galiana together with the second applicant and their two children (five and two years old at the time). 23. On 1 February 2010 the authorities again required the first applicant to immediately vacate the dwelling. On 15 February 2010, following a request by the authorities, municipal police officers reported that the dwelling was still occupied by the applicants. 24. On 2 November 2010 the authorities applied for a new judicial authorisation to enter the applicants’ home with a view to enforcing the demolition order of 23 June 2005 (see paragraph 10 above). 25. On 24 January 2011 the first applicant submitted observations on the application, arguing the following: (i) the demolition to be enforced had no legal basis and was therefore unlawful. The demolition order of 23 June 2005 had been effectively enforced on 18 October 2007, and no new demolition order had been issued after the applicants had built a new dwelling in the same location. Moreover, the first applicant claimed that a new decision of the City of Madrid’s Governing Board to request authorisation to enter their home was required for instituting the instant proceedings. He also stated that he was going to lodge an application for judicial review of the decision of 14 April 2008 (see paragraph 19 above), and consequently the proceedings would be pending; (ii) the institutional context had varied significantly as a result of the agreement to find a comprehensive solution for the Cañada Real Galiana reached in 2009 by the Municipality and the other public bodies concerned. A draft Law – that could have an impact on the applicants’ situation – was being prepared in this connection; (iii) the demolition carried out in 2007 had failed to comply with minimum guarantees on forced evictions, in contravention of international human-rights standards; (iv) the children were enrolled in a school located five hundred metres away from their home, and therefore the enforcement of the eviction and demolition would negatively affect their right to education and personal development. Alternatively, should entry into the applicants’ home be authorised, the first applicant requested the suspension of the demolition until the school year had finished. 26. On 8 April 2011 the first applicant submitted additional observations, stating that any individual measure – such as the demolition of the applicants’ home – carried out outside the general framework of the agreed solution for the Cañada Real Galiana provided by the Cañada Real Galiana Act (see paragraph 42 below) – which had entered into force on 30 March 2011 – would be unlawful, arbitrary and discriminatory. Accordingly, a decision granting authorisation to enter the applicants’ home would be disproportionate and would amount to a breach of their right to respect for the home. 27. On 20 April 2011 the Madrid Administrative Court no. 30 authorised entry into the applicants’ home with a view to carrying out the eviction and the demolition of the dwelling. It however upheld the applicants’ request to grant authorisation only once the school year had finished. The court firstly referred to the limited scope of the proceedings, noting that the authorities’ request for judicial authorisation to enter the applicants’ home had been necessary, prior to the enforcement of the measure, in the absence of consent to enter their home, in order to guarantee their right to respect for the home under Article 18 § 2 of the Constitution. The court was thus required to strike a balance between the interests at stake. In that connection, the court further noted that the instant judicial review was restricted to examining the appearance of legality of the administrative decision intended to be enforced, and to determining whether authorisation to enter the home in question was necessary. Secondly, as to the particular circumstances of the case, and having regard to the limited scope of the proceedings, the court found that the demolition order had been in accordance with the law. It noted that the first applicant had had the opportunity to submit observations within the administrative proceedings; but having failed to contest the demolition order, it had become final. The enforcement of the demolition order was thus the result of the first applicant’s failure to voluntarily comply with the order. The court also held that the first applicant had acted with complete disregard for the administrative and judicial decisions ordering the demolition of the illegal construction – by rebuilding the dwelling almost the day following its demolition – and had carried out actions intended at hindering compliance with the demolition order. The court furthermore found that the applicants’ house had been unlawfully constructed, a status that had not been modified by the entry into force of the Cañada Real Galiana Act. Lastly, the court considered that the authorisation to enter the applicants’ home was the only means to enforce the eviction and demolition order. 28. On 15 July 2011 the first applicant lodged an appeal against the decision authorising entry into his home. He firstly claimed that the decision had not given a response to some of his arguments, specifically to his claim that a new decision of the City of Madrid’s Governing Board was required to initiate the instant proceedings. Secondly, the first applicant reiterated the argument that the demolition of the applicants’ home was unlawful because it required a new demolition order. He also alleged other shortcomings in the administrative proceedings. Lastly, he claimed that non-compliance with urban-planning regulations could not serve as the basis for dismantling a settlement like the Cañada Real Galiana, which had been tolerated by the authorities for decades, particularly after the entry into force of the Cañada Real Galiana Act. He also stressed that any demolition outside “the process for social dialogue” (acuerdo de contenido social) provided for by the Cañada Real Galiana Act would be unlawful, and that there were legal alternatives to the demolition of the applicants’ only home. 29. On 28 July 2011 the relevant authorities of the Municipality declared inadmissible an application submitted by the first applicant requesting them to review the decisions of 14 April 2008 (see paragraph 19 above) and 1 February 2010 (see paragraph 23 above), on the basis that such administrative decisions were unlawful as a result of the enactment of the Cañada Real Galiana Act. The authorities found that the application was not based on any of the grounds for review provided for by law. Although the inadmissibility decision was subject to both administrative and judicial review, the first applicant failed to avail himself of any remedies against it. 30. On 6 September 2011, starting at 5 a.m., the applicants were evicted and their home was demolished – according to the official report issued by the emergency services (SAMUR), the children (seven and four years old at the time) were sleeping in a relative’s house. The eviction took place without incident. The applicants had not previously been informed of the date and time of the eviction to prevent serious incidents from happening, as those which had occurred during the eviction of 18 October 2007 (see paragraph 17 above). The presence of the SAMUR – to provide assistance to the applicants – and a significant number of police officers – in anticipation of public disturbances – had been ordered. The presence of neighbours and other people from certain social movements gathering around the applicants’ home, and the setting up of roadblocks on the access routes to the settlement, had been noted by the police in the weeks prior ‑ which, together with the submission of the application for review referred to in the paragraph above, had caused the enforcement of the demolition, initially scheduled for 6 July 2011, to be delayed on several occasions. The municipal social services had also been requested in advance to inform the applicants about the public resources they could utilise with the aim of helping them ease the situation caused by the loss of their home. The SAMUR – present during the eviction – reported that the applicants had on the spot been offered emergency accommodation for a few days and social support while other (more permanent) solutions were being arranged with the district social services. The applicants reportedly refused emergency assistance, stating that they had support from their social network and family, with whom they would stay because they lived in the same area. As the applicants refused their assistance, the SAMUR informed them of the possibility to come back to them should they need any emergency assistance (such as accommodation, clothing or food) and referred the case to the municipal (primary) social services so they could follow up on the applicants’ situation. Reportedly, the applicants never got back to the SAMUR. The expenses incurred for the demolition amounted to EUR 6,058.20. 31. By a judgment of 8 March 2012, the Madrid High Court of Justice (Administrative Chamber) dismissed the first applicant’s appeal against the decision authorising entry into the applicants’ home. The court firstly found that the decision of the City of Madrid’s Governing Board to initiate the current proceedings had been valid and in accordance with the law, and accordingly no new decision was required. Secondly, it also held that the Cañada Real Galiana Act had no bearing on the State’s authority to restore legality to urban areas, and had not derogated, or suspended the application of, the urban-planning regulations in force at the time. The Law had not granted the applicants the “right to build” (ius aedificandi). Lastly, the court noted that the first applicant’s conduct had constituted an abuse of rights, and referred the case to the prosecutor’s office to consider if his acts could have amounted to a criminal offence. 32. On 28 March 2012 the first applicant was served with a decision of the relevant authorities of the Municipality of 18 November 2011 requiring him to pay a total amount of EUR 10,766.97 for the expenses incurred by the authorities in carrying out the first and second demolitions (see paragraphs 17 and 30 above). The first applicant lodged an application for judicial review, which was dismissed by the Madrid Administrative Court no. 4 on 28 January 2014. The applicants have failed to show, and it is not clear from the case file, whether they have paid that amount. 33. On 20 June 2012 the first applicant lodged an amparo appeal with the Constitutional Court, claiming that his and his family eviction and the demolition of their home had amounted to a violation of Article 18 § 2 of the Spanish Constitution (right to respect for the home) and Article 8 of the Convention. The first applicant argued that demolitions carried out in the Cañada Real Galiana outside the process for social dialogue set down in the Cañada Real Galiana Act – as in the present case – were contrary to law because they undermined the spirit and letter of that Act. After the entry into force of the Cañada Real Galiana Act, and particularly taking into account that unauthorised constructions within the Cañada Real Galiana had been tolerated by the authorities for decades, their eviction and the demolition of their home did not pursue a legitimate aim and was not necessary in a democratic society. In his view, the impugned measure was not proportionate owing to the fact that the Cañada Real Galiana Act provided for alternatives to the demolition of the applicants’ only home. The first applicant stated that the impugned measure was discriminatory because it de facto excluded him from the process to tackle the problems of the Cañada Real Galiana initiated by the Cañada Real Galiana Act. Lastly, he submitted that their eviction had failed to comply with minimum guarantees on forced evictions. 34. The Constitutional Court dismissed the first applicant’s amparo appeal in a judgment of 4 November 2013. The Constitutional Court started by reiterating the limited scope of the ordinary proceedings in similar terms as those expressed by the first- and second-instance judgments, noting that the role of the courts in authorising entry into the applicants’ home had been limited to guaranteeing that such entry had been carried out after striking a balance between the rights and interests at stake and only if it had been strictly necessary. In this context, the Constitutional Court held that the courts had duly examined both the measure’s accordance with the law and its proportionality. On the one hand, the Constitutional Court found that the instant situation and the alleged (and non-existent) formal defects in the administrative proceedings had been caused by the first applicant himself, who had rebuilt the dwelling the day following its demolition, knowing that doing so had been in breach of urban-planning regulations and that the administrative decisions had become final. The court noted that the first applicant should have challenged the merits of the administrative decisions given within the framework of the urban-planning procedure by lodging an application for judicial review. Having failed to do so, he could not seek their full review subsequently by contesting their enforcement and, in particular, the request for authorisation to enter their home. On the other hand, the Constitutional Court noted that the Cañada Real Galiana Act had only entered into force after the administrative decisions intended to be enforced by the public authorities had become final. It found that the authorisation to enter the applicants’ home with a view to carrying out their eviction and the demolition of the dwelling had been proportionate and the only means to enforce the administrative decisions, which had been aimed at protecting the legal order of the city and which had become final. As an example, the Constitutional Court noted that the domestic courts had ensured the children’s right to education by authorising entry in the applicants’ home only after the school year had finished. 35. The Constitutional Court’s judgment contained a dissenting opinion of two judges (of a five-judge panel), asserting that the amparo appeal should have been upheld. In short, the dissenting judges noted that the municipal authorities could have been more scrupulous in respecting the safeguards of the administrative procedure. For instance, they could have issued a new demolition order for the second demolition (instead of resorting to the one of 23 June 2005), could have adopted a new decision ordering the enforcement of the demolition order prior to requesting judicial authorisation to enter the applicants’ home (instead of invoking that of 14 April 2008), and could have indicated, without misleading, that the decision of 14 April 2008 had been subject to appeal. Furthermore, in respect of the impugned judicial decisions there had been a failure to duly assess the proportionality of the measure. Their approach had focused on the irregular nature of the building, failing to identify what the pressing social need justifying the measures or their urgency had been, and failing to consider the expectations created by the tolerance of the settlement or possible alternative measures. In their view, the decisions had not sufficiently weighed the relevance of the Cañada Real Galiana Act, whose entry into force should have automatically brought any ongoing eviction and demolition proceedings to a standstill, even in the absence of an express provision in the Law. The issue at stake had concerned a whole community and a settlement that had existed for a long period, and accordingly it should have been treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property. The applicants’ requests for social housing
36. On 12 November 2007 the first applicant submitted a first application for social housing to the relevant body of the Autonomous Region of Madrid under a procedure established for people with special needs. He based the request on their eviction and the demolition of their home, and submitted a tax declaration in support of the application, reporting an annual income amounting to EUR 11,409. It appears that the request was not granted, yet the case file contains no information as to the grounds. This type of application for social housing had to be submitted on a yearly basis – if not granted, they needed to be submitted anew. 37. On 20 January 2011 the first applicant submitted a second application for social housing, this time arguing that the special needs were their living in substandard housing. He reported an annual family income of EUR 8,000 – reportedly obtained from scrap collection – but he did not submit a tax declaration as was required to apply for social housing. The application was considered to be incomplete, and the first applicant was accordingly requested to submit certain additional documents. He however failed to do so. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Constitution
38. The relevant provisions of the Constitution read as follows:
Article 18
“1. The right to respect for honour, for private and family life and for one’s own image shall be guaranteed. 2. The home shall be inviolable. It shall not be entered or searched without the consent of the householder or a judicial decision, save in cases of flagrante delicto.
...”
Relevant provisions concerning urban planning
39. The use of land and land planning in the Autonomous Region of Madrid is regulated by the Autonomous Region of Madrid Land Act (Law 9/2001, of 17 July – Ley del Suelo de la Comunidad de Madrid). Section 194 (concerning construction work already underway) and Section 195 (concerning completed buildings) of that Law provide for the demolition of buildings constructed without the requisite planning permission, at the expense of the person concerned, when that person has not requested the legalisation of the construction within the time-limit or such a request has not been granted – for instance, if it was built in breach of urban-planning regulations. Other relevant provisions concerning procedure in administrative matters
40. The Public Service and Common Administrative Procedure (Legal Regime) Act (Law 30/1992 – Ley de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común), as in force at the relevant time, provided that public authorities cannot take any action limiting rights of individuals with the purpose of enforcing decisions unless a decision that serves as the legal basis has been previously adopted (section 93). After a warning, they may proceed to the compulsory enforcement of administrative decisions, except in cases where the Constitution or the law requires the intervention of the courts (section 95). Such enforcement must always be carried out in accordance with the principle of proportionality, using the least restrictive means for the individual freedom from those available, and if it is necessary to enter the affected person’s home, the public authorities must obtain her or his consent or, in its absence, judicial authorisation (section 96). Failure on the part of the person concerned to comply with an administrative decision can result in the public administration enforcing it at her or his expense (section 98). Relevant provisions concerning livestock routes
41. The basic State legislation governing livestock routes in Spain is the Livestock Routes Act (Law 3/1995, of 23 March – Ley de Vías Pecuarias). This regulation is supplemented by regional laws. At the material time, the Cañada Real Galiana was governed by regional Law 8/1998, of 15 June, regulating livestock routes in the Autonomous Region of Madrid. Livestock routes going through the region of Madrid were accordingly “public domain” (public property allocated for general use or public service) of the Autonomous Region of Madrid. 42. As a result of a negotiating board set up by the State, regional and local authorities concerned (including the Municipality) with the purpose of addressing the “problems” which had arisen in the Cañada Real Galiana, and the ensuing agreement reached in July 2009 (that included a proposal of a draft Law), on 15 March 2011 the Madrid Regional Parliament adopted the Cañada Real Galiana Act (regional Law 2/2011). It entered into force on 30 March 2011. The Act provided for a change in the legal regime applicable to the section of the Cañada Real Galiana within the Municipalities of Coslada, Madrid and Rivas-Vaciamadrid. The area accordingly lost its status as “public domain” and a livestock route – it was considered to no longer be suitable for the movement of livestock and could not be given a compatible use – and became property of “private domain” (bien patrimonial) of the Autonomous Region of Madrid (public property not allocated for general use or public service). Consequently, the Autonomous Region of Madrid can transfer or cede the land affected to, preferably, the municipalities concerned or, in the event they did not exercise that preferential option, transfer its ownership to third parties. Such transactions however require a prior social-framework agreement (acuerdo de contenido social) by the public entities involved (as referred to in the first additional provision to the Act), aimed at resolving all the issues resulting from the occupation, loss of status as public domain (desafectación) and the use of the land of the Cañada Real Galiana that is the subject of the Act, with the participation of those affected duly represented by associations, and that the municipalities, after such an agreement, adapt the classification of the land in the exercise of their urban planning powers. Furthermore, section 4(2) of the Act provides that the use to be given to any plot of land transferred in accordance with the Act must be consistent with the relevant land-use planning regulations, and in no case does the transfer entail the legalisation of construction which may have been carried out in the land. In addition, the municipalities to which the land has been ceded may later transfer it to those individuals occupying it. The Act also provides that those natural or legal persons holding title to land may assert their rights before both the Autonomous Region of Madrid and the municipality concerned (second additional provision to the Act). This particularly concerns those individuals living in areas that have already lost their status as public domain owing to previous legislative changes, the Act being consequently beneficial to individuals living in the said area for a long period. 43. On 30 April 2014 the Autonomous Region of Madrid and the Municipalities of Madrid and Coslada signed the social-framework agreement for the Cañada Real Galiana referred to in the first additional provision to the Cañada Real Galiana Act. It included actions relating to security, urban, housing and social matters. This agreement was later replaced by a regional pact for the Cañada Real Galiana, which was signed by all the State, regional and local authorities concerned (including the Municipality) on 17 May 2017. It encompassed lines of action in urban and housing matters, which would affect all the residents in the Cañada Real Galiana registered therein before the end of 2011 (see, in that regard, paragraph 48 below), who were to have, whenever possible, the right to housing in the Cañada Real Galiana itself. That measure also envisaged the amendment of urban-planning regulations by the public entities concerned. The authorities also undertook to make the necessary legislative amendments, including the amendment of the Cañada Real Galiana Act (a proposal of draft law was included as an annex to the pact). The pact also included measures concerning social integration and to improve living conditions in the Cañada Real Galiana. Relevant provisions of the Civil Code
Article 348
“Property is the enjoyment and disposal of a thing with no more limitations than those established by law. The owner can reclaim a thing (cosa) of his property through a legal action against the individual exercising a right of possession over that same thing.”
Article 349
“No one can be deprived of her or his property except for when deprivation is carried out by the competent authority through a decision based on public utility which must be preceded by the correspondent indemnisation ...”
Article 360
“The owner of land on which she or he made, by himself or through others, farmland, buildings or building work being carried out with others’ material, must pay for its value; and, if she or he acted in bad faith, she or he will, in addition, be obliged to pay damages. The owner of the material will have a right to have the latter removed provided there is no detriment to the building work, farmland, and buildings resulting from such an action.”
Article 363
“The owner of the land on which there is a building, farmland or which has already been sown [or built on] in bad faith will be able to claim the demolition or the pulling up of the farmland and sown land, restoring things to their original state at the expense of the person who built, planted and sowed in bad faith.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
44. The applicants complained that their eviction and the demolition of their home after decades of tolerance on the part of the authorities towards the construction of houses in the Cañada Real Galiana had amounted to a violation of their right to respect for their private and family life. They relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility
45. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicants
46. The applicants submitted that, although the impugned measure had been provided for by law, it had not pursued a legitimate aim and had not been necessary in a democratic society, particularly after the entry into force of the Cañada Real Galiana Act and having regard to the fact that the public authorities had not taken into consideration minimum safeguards such as alternative housing. In their view, their situation had not differed from that of other residents in the Cañada Real Galiana. In the Municipality alone the local authorities had initiated at least 263 sets of demolition proceedings between 2005 and 2010 in relation to dwellings in the process of being built; but they had not clarified why they had increased the institution of proceedings mainly in 2005 and onwards, after decades of tolerance of the settlement. The applicants maintained that the instant case was similar to the case of Raji and Others v. Spain ((dec.), no. 3537/13, 16 December 2014), which had also concerned demolition proceedings in respect of a property in the Cañada Real Galiana. In their view, the principle of proportionality required that situations such as the present one be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property. The applicants also complained of the manner in which the eviction had been carried out (at night, without prior notice and with a significant police presence). 47. Concerning the safeguards in the domestic proceedings, the applicants stated that some of the administrative decisions had not been served on them personally, the demolition order of 2005 had served as the basis for the demolition of 2011, and some decisions had even expressly stated that they had not been subject to appeal. They stated in their application to the Court that the first applicant had not lodged an appeal against the demolition order – and had not attached any importance to it ‑ because he had felt protected by the decades of inaction on the part of the authorities and because of general consensus among the neighbours of the settlement that nothing had ever happened there (see paragraphs 70 and 71 below). 48. In response to the Government’s observations, the applicants submitted that the income reported in 2006 (EUR 11,409) had been insufficient for a family unit and that, in any event, at the time of their eviction in 2011 the first applicant had been unemployed for a long period. They also claimed that they were fully integrated in the area. As regards the social assistance offered by the municipal authorities, the applicants submitted that the SAMUR had been able to provide accommodation for seven to fifteen days. The Municipality had failed to provide any data, report, study or concrete action taken in relation to the applicants in this connection, not even after the domestic court had authorised entry into their home with a view to enforcing the eviction. Also, it was public knowledge and a well-known fact that the authorities of Madrid did not have effective means to rehouse those affected by evictions and that there were no actual possibilities of access to public housing. Furthermore, the reasons provided by the Municipality for suspending the demolitions since 2013 had all been applicable from March 2011 – when the Cañada Real Galiana Act had entered into force. The applicants noted that negotiations to tackle the problems of the Cañada Real Galiana had already started in 2007. They claimed that in July 2011 they had been counted in the 2011 population census conducted in the Cañada Real Galiana and that the 2014 framework agreement to provide a solution for the settlement (see paragraph 43 above) had envisaged the regularisation of most of the dwellings of the families included in that census. In short, the balance between the interests at stake should lead to the conclusion that the applicants’ eviction and the demolition of their home had not been necessary or urgent, and caused irreparable damage – particularly to the minor children – on the basis that the public authorities had not provided credible and permanent alternative housing. (b)   The Government
49. The Government acknowledged that the applicants’ forced eviction and the subsequent demolition of their home may have constituted an “interference” with their rights under Article 8 of the Convention. They submitted that such interference had been in accordance with the law, particularly the Autonomous Region of Madrid Land Act (see paragraph 39 above), and pursued a legitimate aim, as it had been necessary to regain possession of the plot of land – property of public domain that had been illegally occupied – for the effective implementation of urban-planning regulations as well as for the protection of public order (owing to the presence of drug trafficking and robberies in the area). 50. As to the proportionality of the interference, the Government asserted that the national authorities had a wide margin of appreciation in cases such as the present one. They submitted that, at the material time, the authorities had already set the basis for the regularisation of illegal buildings in the Cañada Real Galiana for a long time (see paragraph 68 below) and consequently the procedures put in place by the Cañada Real Galiana Act had been applicable only to them – the suspensions of demolitions by the Municipality since 2013 had only been relevant to persons who had been illegally residing in the settlement for a long time and for whom the ongoing regularisation process was been negotiated. Accordingly, that regularisation process had not included the applicants. The first applicant had started building the dwelling in 2005, knowing full well the unlawfulness of his actions, and soon thereafter, immediately after that had been noticed by police officers in the course of a regular inspection of the area, the authorities had taken action to prevent the construction work being finished. The Government maintained that the local authorities had conducted daily inspections in the area in order to prevent abuse from individuals trying to improperly benefit of the regularisation process by illegally occupying plots of land ex novo. The authorities had thus acted promptly when apprised of the illegality of the construction work being carried out by the applicants, and had not tolerated an illegal situation for a long time. In their view, the applicants’ situation had been factually and legally different from the situation of those persons who had been illegally residing in the Cañada Real Galiana for a long period; the applicants had not had roots in the area since they had not been living there for a long time when the demolition of their house had taken place. The Government distinguished the instant case from Raji and Others ((dec.), cited above (see paragraph 46 above), where the house where the applicants lived was ceded to them by the people formerly living in it, the applicants not having been informed that an eviction and demolition order was pending on the house). 51. The Government also argued that, when the first applicant had started building the dwelling in 2005, he had been registered at another address and his income had been double the national minimum wage in Spain. Furthermore, he had not made use of the available procedures for obtaining social housing and had even refused social assistance offered by the authorities. The Government emphasised the numerous possibilities that the applicants would have at their disposal to request social housing and the public efforts made to offer assistance to the applicants. 52. The Government submitted that all the administrative decisions had been reasoned in accordance with the law and personally served on the applicants – despite the impediments posed by the first applicant – and had made express reference to the administrative and judicial remedies available to challenge those decisions. Notwithstanding this, the first applicant had failed to use any of the remedies and had refused to voluntarily comply with the administrative decisions. The Government maintained that he had even allowed violent attacks against the authorities trying to enforce the demolition order (with twenty-three police officers injured as a result) and, together with a group of neighbours, had organised surveillance and other actions with the purpose of monitoring the authorities’ access to the area in order to prevent the demolition from taking place, including erecting barricades and setting up roadblocks to coercively impede the passage of vehicles. The Government lastly submitted that the first applicant had also had the possibility to submit observations within the framework of the judicial proceedings, and the ruling given at first instance had been reviewed by the High Court of Justice and the Constitutional Court. The domestic courts had examined the proportionality of the measure, to the extent that they had even postponed the enforcement of the demolition order until the school year had finished.

Outcome for Article 8: no_violation