ITEMID: 001-97978
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF DEPALLE v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of P1-1
JUDGES: Anatoly Kovler;Antonella Mularoni;Elisabet Fura;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 8. The applicant was born in 1919 and lives in Monistrol-d’Allier.
9. On 3 November 1960 the applicant and his wife purchased by notarial deed a dwelling house built on land in the municipality of Arradon, in the département of Morbihan. The house had been built on a dyke that overlapped with land on the seashore falling within the category of maritime public property.
10. It can be seen from the various documents relating to the house that, by a decision of 5 December 1889, the prefect of Morbihan had authorised Mr A., in consideration of payment of a charge, to “retain on maritime public property in the cove of Kérion, in the municipality of Arradon, a dyke ... on which stands a dwelling house”. The house had allegedly been built prior to that decision despite a decision of the prefect of 31 May 1856 refusing an application for a building permit. The decision of 1889 specified that “the existence of this dyke and dwelling house on maritime public property was recorded in 1886 ... and the permittee undertakes to pay the charge from 1 January 1887”. It also pointed out that the dyke, irregularly shaped and of a surface area of 359.40 sq. m, on which stood the dwelling house measuring 7.60 m by 6.60 m, “cannot interfere in any way with navigation rights or maritime coastal traffic on condition that steps are built at each end of the dyke in order to facilitate public access” and that the authorities “reserved the right to modify or withdraw the authorisation without the permittee thereby acquiring any right to claim compensation or damages in that regard. He must, if required, restore the site to its original state”.
11. Prior to that, on 2 December 1889, the Directorate-General for Registration and Property had written to the prefect in the following terms:
“... Having regard to Mr A.’s genuine lack of means, as a former seaman who has reached an advanced age and cannot possibly pay the normal charge, and considering, furthermore, that it would be a drastic measure to order the demolition of the little house that he has built on land reclaimed from the sea and uses as a dwelling house, I have decided to impose the minimum charge thus reflecting the precariousness of the occupancy and preventing the rights of the State from becoming time-barred.
In the circumstances I consider ... that there is now no further obstacle to disposing of this case by issuing a concession order, but on Mr A.’s death, his heirs should be served with notice either to purchase the usurped land or to pay the charge at the rate applicable for private occupancy of maritime public property.”
“Title and entry into possession: the purchasers shall hereby acquire title to the land and the little house of Kérion from today’s date. The property is sold free of tenants or occupants.”
13. The relevant passages of the deed of sale of 1960 read as follows:
“Title – Entry into possession:
The purchasers hereby acquire title to the property conveyed to them under this deed, and shall enter into actual possession thereof from today’s date ...
From the date of their entry into possession they shall pay all taxes and charges payable now or in the future on the house hereby sold together with the land. ...
... The present sale is concluded in consideration of the principal price of three thousand new francs ...”
14. Following this purchase, and in order to acquire legal access to the house, the applicant and his wife were granted rights of temporary occupancy of maritime public property that were regularly renewed in 1961 (year during which the applicant was permitted to extend the dyke and a public right of way was granted along the seaward edge of the dyke), 1975, 1986 and 1991. The authorisation of temporary occupancy of 1986 specified that the applicant sought “the renewal of the prefectoral decision of 17 August 1961 authorising the construction of a dyke with a dwelling house on it ...”. The last agreement granting them the right to occupy public property expired on 31 December 1992. The decisions specified that “the requested dyke will not in any way interfere with navigation rights, on condition that it is levelled off above the highest water mark, or with maritime coastal traffic provided that public access is guaranteed at all times” and that “in accordance with Article A 26 of the Code of State Property [see paragraph 40 below], the authorities reserve the right to modify or withdraw the authorisation should they deem it necessary, on any ground whatsoever, without the permittee thereby acquiring any right to claim damages or compensation in that regard. The permittee must, if required, restore the site to its original state by demolishing the constructions built on the public property, including those existing on the date on which the decision was signed. Should he fail to comply with that obligation, the authorities shall do so of their own motion and at his expense”.
15. By a letter of 14 March 1993, the applicant and his wife requested the prefect of Morbihan to renew authorisation of their occupancy.
16. The prefect of Morbihan replied on 6 September 1993 informing the applicant that the entry into force of Law no. 86-2 of 3 January 1986 on the development, protection and enhancement of coastal areas (“the Coastal Areas Act”), and in particular section 25 thereof, no longer allowed him to renew authorisation on the previous terms and conditions. Section 25 provided that decisions regarding the use of maritime public property had to take account of the vocation of the zones in question, which ruled out any private use including dwelling houses. However, in order to take account of the length of occupancy and the applicant’s sentimental attachment to the house in question, he proposed to enter into an agreement with the applicant that would authorise limited and strictly personal use and prohibit him from transferring or selling the land and house and from carrying out any work on the property other than maintenance and would include an option for the State, on the expiry of the authorisation, to have the property restored to its original condition or to reuse the buildings.
17. By a letter dated 19 November 1993, the applicant and his wife rejected the prefect’s offer and requested a concession to build a dyke that would be valid as a transfer of ownership under Article L. 64 of the Code of State Property (see paragraph 43 below).
18. On 9 March 1994 the prefect of Morbihan gave a decision, based on section 25 of the Coastal Areas Act, in which he considered that there was no public interest justifying the concession requested. He did, however, renew his offer to grant the applicant and his wife a right of temporary occupancy subject to conditions.
19. On 5 May 1994 the applicant and his wife applied to the Rennes Administrative Court for the prefect’s decision of 9 March 1994 to be set aside. In support of their application, they submitted that the refusal to grant them a concession to build a dyke was unlawful.
20. By a letter of 4 July 1994, the prefect of Morbihan served notice on the applicant and his wife to regularise their status as unauthorised occupants of public property. That notice was renewed on 10 April 1995.
21. On 6 September 1995 the Public Works Department of the département of Morbihan drew up an official report recording the administrative offence of unlawful interference with the highway and noting the unlawful occupancy of the land by the applicant, contrary to the provisions of Article L. 28 of the Code of State Property (see paragraph 40 below).
22. On 20 December 1995 the prefect of Morbihan lodged an application with the Rennes Administrative Court citing the applicant and his wife as defendants in respect of an offence of unlawful interference with the highway as they continued to unlawfully occupy public property. He sought an order against them to pay a fine and restore the foreshore to its original state prior to construction of the house and to restore the dyke on which it stood, within three months.
23. On 19 February 1996 the Revenue Department served notice on the applicant to pay the sums due for the years 1995 and 1996 for unauthorised occupancy of public property, namely, a total of 56,754 French francs (FRF).
24. By two separate judgments delivered on 20 March 1997, the Rennes Administrative Court ruled on the application lodged by the applicants on 5 May 1994 (case no. 941506) and the application lodged by the prefect of Morbihan on 20 December 1995 (case no. 953517).
The application for the prefect’s decision rejecting their request for a permit to build a dyke to be set aside (case no. 941506) was dismissed on the following grounds:
“... In support of their argument that the stretch of land on which the dwelling house stands belongs to the category of maritime private property the applicants have exhibited in the proceedings a decision authorising the temporary occupancy of maritime public property dating back to 1889. However, this decision merely takes note that the land in question has been drained and does not certify the lawfulness thereof. Accordingly, it does not call into question the classification of the land as public property.
In accordance with Article L. 64 of the Code of State Property, ‘the State may concede, on conditions it shall determine ... the right to build a dyke’. While section 27 of the above-mentioned Act of 3 January 1986 [Coastal Areas Act] has reduced the scope of application of that Article, it does nonetheless specify that ‘land draining carried out prior to the present Act shall continue to be governed by the previous legislation’. Accordingly, the only provisions applicable to the present case are Article L. 64 of the above-mentioned Code and the Maritime Public Property Act of 28 November 1963, which provides that ... ‘subject to any contrary provisions of deeds of concession, land artificially removed from the action of the tide shall be incorporated into the category of maritime public property’. In rejecting the request on the basis of the principles and guidelines laid down in the inter-ministerial circular of 3 January 1973 setting out the policy to be followed for the use of maritime public property, the prefect – when examining the applicant’s particular situation involving an application for a concession – did not err as to the scope of the circular in question, which neither repeals nor amends the above-mentioned legislative provisions but is limited to applying them.
The above-mentioned circular, which instructs the authorities responsible for deciding whether or not to grant concessions to build dykes not to transfer title to the plots of land thus created and to accept only installations designed for collective use, to the exclusion of private dwellings, was issued in respect of an area in which the relevant authorities have discretionary power. In referring to the principles laid down in the circular, the prefect does not appear to have interpreted the legislative provisions inaccurately; nor did he fail to consider the specificity of the applicant’s proposal before concluding that there was no special factor justifying an exemption from the instructions analysed above.”
The application lodged by the prefect of Morbihan (case no. 953517) was granted. The court stated that “the land on which Mr and Mrs Depalle’s dwelling house stands is indeed public property”. With regard to the offence of unlawful interference with the highway, the court found as follows:
“... The rules governing public property
... The purpose of prosecuting someone for the administrative offence of interference with the highway is to preserve the integrity of public property. As can be seen from the judgment delivered by the court today in case no. 941506, the land on which Mr and Mrs Depalle’s dwelling house was built is indeed public property.
The administrative courts base their determination of the substance of artificial public property on the judicial interpretation of any private deeds that may be produced whose examination raises a serious difficulty. In the present case the dyke and the house are not publicly owned property, given the exclusively private use made of them and the fact that they do not belong to a public authority, as confirmed by the deed of sale dated 8 October 1960. Accordingly, as it is not seriously disputed that the property in question has been appropriated for private use, it is not necessary to adjourn the application. ...
Whether there has been unlawful interference with the highway
While Mr and Mrs Depalle have full title to the dwelling house occupied by them and claim, accordingly, that they are therefore not the unlawful occupants of public property, the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a concession to build a dyke or another type of concession. The investigation into the facts and, in particular, the absence of any documents evidencing that a concession was granted show that the dwelling house in question was illegally built on maritime public property. Accordingly, and despite the production by the owners of undisputed title deeds, the prefect is justified in requesting an order against Mr Depalle to pay a fine and restore the foreshore to its original state prior to the construction of the house.
Penalty for the offence
... Mr Depalle is hereby ordered to pay a fine of FRF 500.
State property proceedings
Mr Depalle is hereby ordered to restore the property to the state it was in prior to the construction of the buildings within three months of service of this judgment. On expiry of that time-limit Mr Depalle shall pay a fine of FRF 100 per day’s delay in the event of failure to comply with the present judgment and the authorities shall be authorised to enforce it at the cost and risk of the offender ...”
25. On 2 July 1997 the applicant and his wife lodged an appeal against the judgment delivered in case no. 953517. On 7 July 1997 they appealed against the judgment delivered in case no. 941506.
In support of their appeal against the judgment delivered in case no. 941506, the applicant and his wife submitted that the land in question was not public property belonging to the State. They maintained that the land was private property belonging to the State with the twofold effect that the usual rules governing acquisition by adverse possession under private law were applicable to their situation and that the administrative courts did not have jurisdiction to decide the dispute.
26. By a judgment of 8 December 1999, the Nantes Administrative Court decided to join the two sets of proceedings on the ground that they were connected and to dismiss the applicant and his wife’s appeals on the following grounds:
“With regard to the application ... concerning the offence of unlawful interference with the highway:
Regarding the State property proceedings
Firstly, it is not disputed that the land on which the dyke on which the house occupied by Mr and Mrs Depalle was built was entirely covered by water, independently of any exceptional meteorological circumstances, prior to the draining works undertaken in order to build the dyke. It has not been established, or even alleged by the applicants moreover, that the undrained portion of this land had ever been removed from the action of the tide. The investigation shows, moreover, that the dyke is the result of land draining carried out prior to the entry into force of the above-mentioned Act of 28 November 1963 [the Maritime Public Property Act] ... and that, notwithstanding the various authorisations of temporary occupancy granted by the authorities, as this was not done in the manner prescribed for concessions for the construction of a dyke it has not had the effect of bringing this part of the land thus removed from the action of the tide outside the category of maritime public property. In accordance with the principles of inalienability and imprescriptibility of public property, the submissions by Mr and Mrs Depalle to the effect that the house was built legally and its occupancy accepted by the authorities for a very long time and tolerated even after expiry of the last authorisation to occupy it do not alter the fact that the property falls within the category of maritime public property.
Secondly, as has been said, the last decision in favour of Mr and Mrs Depalle authorising temporary occupancy of the maritime public property expired on 31 December 1992. In the absence, since that date, of a lawful title of occupancy, the prefect of Morbihan is justified in requesting an order against the occupants to restore the site – if they have not already done so – to its original state prior to construction of the house on maritime public property. In disputing that obligation, the applicants cannot properly rely on the long period of occupancy of the premises or on the fact that the authorities have tolerated the continuation of that occupancy since 31 December 1992 and proposed draft occupancy agreements in order to regularise the situation, which, moreover, they have not taken up. ...
Fifthly, [the obligation to restore the site to its original state] does not constitute a measure prohibited by the requirement of Article 1 of Protocol No. 1 that no one shall be deprived of his possessions except in the public interest. ...
The application regarding the refusal to grant a concession to build a dyke
... Secondly, as section 27 of the above-mentioned Act of 3 January 1986 [the Coastal Areas Act] provides that draining works carried out prior to enactment of that Act shall continue to be governed by the previous legislation, the provisions codified under Article L. 64 of the Code of State Property according to which ‘the State may concede, on conditions it shall determine ... the right to build a dyke ...’ are applicable.
The prefect of Morbihan based his decision not to grant Mr and Mrs Depalle the requested concession to build a dyke on the guidelines set out in the circular of 3 January 1973 issued by the Minister for Economic Affairs and the Minister for Regional Development on the use of public property other than commercial or fishing ports. He did not discern any general-interest ground in favour of granting the applicants’ request.
By instructing the authorities responsible for granting concessions to build a dyke not to allow any plot of land whatsoever falling into the category of public property to be reclassified as private property with a view to transferring full title thereto, the ministers signatory to the circular of 3 January 1973 did not adopt any legal rules amending or supplementing the above-mentioned provisions of Article L. 64 of the Code of State Property but confined themselves to applying them. Accordingly, as stated above, the plot of land in question is State-owned public property. There is no evidence in the case that the prefect, before reaching his decision, either failed to examine the particular circumstances of Mr and Mrs Depalle’s request or made a manifest error of assessment in concluding that there was no special feature or general-interest consideration in the case justifying an exemption from the above-mentioned rules.”
27. On 21 February 2000 the applicant lodged an appeal on points of law against the judgment of 8 December 1999. The Government Commissioner pointed out, in the same submissions as those made in a similar case, that the value in today’s terms of the purchase price of the house was 1,067,143 euros (EUR). He continued as follows:
“... However, the acquisition of rights in rem is not permitted under the Law of 25 July 1994 on State-owned Natural Public Property ... nor were these acquired before that Law was passed ... The appellants have not acquired any property rights over their houses; nor have they acquired rights in rem over public property as a result of the successive sales. Given the precarious situation of the buildings, the market value could not be established without taking account of that essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up ... Lastly, and despite the fact that we are not especially enthusiastic about the outcome of this case, we have no alternative but to dismiss the appellants’ pleadings. ... They probably committed a tactical error in refusing the prefect’s reiterated offer. Even if they were not exactly delighted by the prospect, it was at least preferable to a straightforward demolition order which will have to be judicially enforced at their expense. All hope is perhaps not lost of renewing contact with the authorities with a view to finding what might be a less drastic solution.
There may be a case for suing the State in tort for allowing occupants of public property to nurture for almost a century the hope that they would not be ruthlessly compelled to demolish their property. It should be pointed out that the prospects of success of such an action are fairly slim, however, given the legitimate protection enjoyed by public property. In any event, it is clear that if the public authority were to be found liable, the offenders would bear a considerable portion of liability too.”
28. By a judgment delivered on 6 March 2002, the Conseil d’Etat dismissed the applicant’s appeal. It held that he could not rely on any right in rem over the land in question or over the buildings that had been erected on it and that the obligation to restore the land to its original state without any prior compensation was therefore not a measure prohibited by Article 1 of Protocol No. 1. It also held that the applicant could not rely on the fact that the authorities had tolerated the occupancy of the property in support of his submission that he should be allowed to restore the site to the state it had been in at the time of acquisition of the house.
29. Following a fire in 2005 the applicant applied for a building permit for identical refurbishment of the house. By a decision of 5 September 2005, he was issued with a building permit following a favourable opinion given by an architect from the Architectes des bâtiments de France under the Coastal Areas Act. The permit was subsequently revoked, however, at the request of the prefect lodged with the mayor of Arradon, on the ground that it was illegal because it had been issued in contravention of the rules of inalienability and imprescriptibility of public property.
30. In 2007 and 2008 the Revenue Department sent the applicant a reminder to pay the charges for the years 2006 and 2007 in the sum of EUR 5,518 and EUR 5,794 respectively, plus property tax.
31. The applicant produced a valuation of his house drawn up by an estate agent’s office in November 2008 which states as follows:
“... a dwelling house ... situated on a plot of land measuring 850 sq. m. ... Having regard to the geographical situation of the property, the condition of the building, the surface area, its location on maritime public property and the local property market, and subject to the owners’ ability to produce a concession agreement in respect of maritime public property, this property is worth between EUR 1,150,000 and 1,200,000.”
32. The idea that the foreshore is “common property”, that is, cannot be appropriated for private use and is managed by the public authorities, dates back to Roman times (Institutiones Justiniani, Book II, Title I, De rerum divisione), when even then a permit was necessary in order to build on the seashore. Colbert’s Ordinance of the Marine of August 1681 codified the principle and up until recently was still the legal basis for the State’s management of maritime public property. In addition to defining what constituted the “seashore and foreshore”, it laid down the applicable rules:
“No one shall build on the foreshore, set stakes in the ground or erect any construction that may interfere with navigation, on pain of demolition of the constructions, confiscation of the materials and discretionary fines.”
At the time of the Revolution, the idea developed that maritime public property was governed by the government in the interest of the nation, and not merely as part of the heritage that used to belong to the Crown and now belongs to the State. The management of maritime public property is still largely guided by this principle today. Over and above the idea of State ownership of such property, the conservation and management of it are more a matter of implementation of a policy regarding its use than the exercise of the owner’s “civil” rights. The prefect has a major role in the protection of maritime public property. He is the authority who, generally, governs the use of the property at local level, decides whether or not to allow private occupancy and protects the integrity of the property by prosecuting offenders (source: www.mer.gouv.fr, consulted on 3 February 2010).
Colbert’s Ordinance of the Marine was definitively repealed in 2006. Since 1 July 2006 the General Code of Property owned by Public Bodies (Code general de la propriété des personnes publiques – “the CGPPP”) has replaced the Code of State Property (dating from 1957). It restructures the law governing State-owned land and public bodies and combines the rules governing maritime public property into a whole, including provisions relating to the environment in particular.
33. Maritime public property, determined on the basis of natural phenomena, lies between the highest point of the shore, that is, up to the high-tide mark under normal meteorological conditions (CE Ass, Kreitmann, 12 October 1973) and the boundary of the territorial waters, seaward. Under Article L. 2111-4 of the CGPPP, “State natural maritime public property” shall comprise:
“1. The seabed and marine substrata between the external boundary of the territorial waters and, on land, the foreshore.
The foreshore comprises the whole area covered (and uncovered) by the sea, up to the high-tide mark under normal meteorological conditions;
2. The beds and substrata of salt pans communicating directly, naturally and permanently with the sea;
3. Land naturally reclaimed from the sea:
(a) which was part of the State’s private property at 1 December 1963, subject to third-party rights;
(b) which has been constituted since 1 December 1963.
...
5. Land reserved for public-interest maritime, seaside or tourist needs which has been purchased by the State.
Land artificially removed from the action of the tide shall remain in the category of natural maritime public property unless otherwise stipulated in legally concluded and lawfully executed deeds of concession transferring ownership.”
34. The principle of inalienability of public land, which was established in the case-law and then incorporated into the Code of State Property (Article L. 52) and the CGPPP (Article L. 3111-1), is inextricably linked to the notion of public land. The basis of this principle is the designation of land for public use. As long as it remains thus designated, and no express decision has been taken reclassifying particular public land as private property, no transfer of land can be authorised. It is a means of preventing public land from being acquired by prescription or adverse possession under private law, hence the principle of imprescriptibility that is very often associated with the principle of inalienability. Accordingly, in its Cazeaux judgment, on the subject of plots of land situated close to the seashore in the Arcachon Basin, the Conseil d’Etat found:
“... while the public authorities have authorised various building works on this land and on several occasions waived their right to apply the rules governing public land ..., neither the founders of the société du domaine des prés salés nor the company itself have been able to acquire any property right over the land, which, being part of public land, was inalienable and imprescriptible ...”
35. The Constitutional Council has stated that inalienability is limited to precluding the transfer of public property that has not first been reclassified as private property (CC, no. 86-217 DC of 18 September 1986, Freedom of communication). It has not, however, recognised that the principle of inalienability has any constitutional status (CC, dec. no. 94-346 of 21 July 1994, Rights in rem over public property). The Conseil d’Etat has recently reiterated that “where property belonging to a public authority has been incorporated into the category of public land by virtue of a decision classifying it thus, it shall remain public land unless a decision is given expressly reclassifying it as private property”. Accordingly, it has held that the question whether or not short-stay factories fell into the category of public property was not affected by the fact “that these short-stay factories were intended to be rented or assigned to the occupants or that the occupancy leases granted were private-law contracts” (CE, Société Lucofer, 26 March 2008).
36. The effect of the principle of inalienability is that any transfer of public land that has not been “reclassified” is null and void, so third-party purchasers have a duty to return the land even if they have purchased it in good faith. Moreover, the fact that public land is inalienable means – in theory – that no rights in rem can be established over it. However, the legislature has departed from this principle by passing two Acts, one of 5 January 1988 which creates long administrative leases, and the other of 25 July 1994 on the constitution of rights in rem over public land, thus making it possible to grant private rights in rem to occupants of maritime public property. The Act of 5 January 1988 concerns only public land belonging to local and regional authorities or groups thereof. The Act of 25 July 1994 relates to artificial maritime property and immovable constructions and installations built for the purposes of an authorised activity (Article L. 34-1 of the Code of State Property and Article L. 2122-6 of the CGPPP). In its above-mentioned decision of 21 July 1994, the Constitutional Council held that granting rights in rem in this way was compatible with the Constitution as public services were maintained and public property protected under the Act of 25 July 1994. However, it declared the provision allowing the renewal of authorisation beyond seventy years unconstitutional on the ground that it could potentially render ineffective the public authority’s right to the automatic return, free of charge, of any constructions and therefore undermine the “protection due to public property”.
37. The last consequence of the principle of inalienability is that property belonging to public authorities cannot be seized (Article L. 2311-1 of the CGPPP). This consequence has been attenuated by a decision of the Conseil d’Etat in a case which subsequently came before the Court (Société de Gestion du Port de Campoloro and Société fermière de Campoloro v. France, no. 57516/00, 26 September 2006).
38. Apart from public easements intended to protect public property from the encroachment of private properties, such as a three-metre wide right of way along the coast over properties adjoining maritime public property, created by an Act of 31 December 1976 reforming town and country planning, the land conservation policy guarantees the protection of the physical integrity of maritime public property and compliance with its designated use. Offenders are prosecuted for unlawful interference with the highway on grounds of infringement of the land conservation policy. An interference of this kind is liable to a criminal fine imposed by the administrative courts and the offender is required to restore the site to its original state. The relevant provisions on unlawful interference with maritime public property no longer refer essentially to navigation but take account of the protection of coastal areas for their own sake (Articles L. 2132-2 and L. 2132-3 of the CGPPP).
39. According to the Conseil d’Etat, conservation agencies have a duty to prosecute offenders (CE, Ministre de l’équipement v. Association “des amis des chemins de ronde”, 23 February 1979). Regarding a plot of land incorporated into maritime public property at Verghia beach (southern Corsica), the Conseil d’Etat decided the following:
“... the fact that M.A. produced title deeds to the property in question and had been authorised to build on the land under the regional planning legislation, as distinct from the legislation governing maritime public property, does not mean that the offence of unlawful interference with the highway has not been made out and, in any event, cannot preclude prosecution by the prefect ...” (CE, no. 292956, 4 February 2008).
With regard to repairing damage caused to public property, the actual attitude adopted by the authorities prior to bringing proceedings for unlawful interference with the highway has been deemed to give rise to rights in favour of the offender, including the right not to assume personal responsibility for restoring the site to its original state (CE, Koeberlin, 21 November 1969).
40. The use of maritime public property may be collective or private. Collective use which allows all citizens to benefit from public property (navigation on watercourses, beaches) is freely exercisable, equally available to all and free of charge. However, the principle that use is free of charge has not been expressly incorporated into the CGPPP because it is subject to numerous exceptions.
Private occupancy must be compatible or in conformity with the designated use of the public property. Unlike collective use, it is subject to authorisation, issued personally, and a charge and is of a precarious nature.
Article L. 28 of the Code of State Property (Article L. 2122-1 of the CGPPP) provided:
“Subject to authorisation being issued by the competent authority, no one may occupy any national public property or make use thereof over and above the right of use vested in everyone.
The Property Department shall record any infringement of the provisions of the preceding paragraph with a view to instituting proceedings against illegal occupants, recovering compensation for charges in respect of which the Treasury Department has been defrauded, without prejudice to the institution of proceedings for unlawful interference with the highway.” [Article A 26 specified that authorisation was revocable without compensation.]
41. According to the Conseil d’Etat:
“... while the authorities may, as part of their management powers, authorise – provisionally and on the conditions provided for by the rules in force – private occupancy of the said land, that authorisation cannot legally be granted unless, having regard to the requirements of the general interest, it is compatible with the designated use of the land that the public are normally entitled to exercise, and with the obligation incumbent on the authorities to conserve public land.” (CE, Commune de Saint-Brévin-les-Pins, 3 May 1963)
42. The precariousness of these authorisations derives from the principle of inalienability, according to which the protection – and accordingly the disposal – of public land is vested in the authorities. According to the caselaw:
“... any authorisation to occupy public land is precarious and revocable. Consequently, the fact – assuming it is made out – that, prior to adoption of the decision being challenged, I. had been granted authorisation to occupy the part of common public property ... does not affect the lawfulness of the mayor’s decision requesting him to demolish the buildings he had erected and restore the public land to its original state ...” (CE, Isas, 29 March 2000)
It also states very clearly that those to whom authorisation has been granted have not thereby “acquired rights” to renewal of the authorisation (CE, Helie, 14 October 1991).
43. The conditions of occupation of public property are determined either in unilateral concessions granted by the authorities (of the type referred to above in Article L. 28 of the Code of State Property) or in contracts signed with the occupant. The latter are called concessions to occupy public land, which – on maritime public property – may be a beach concession or a concession to build a dyke. By means of this concession, the State authorises the concessionaire to carry out works on the foreshore by which land is removed from the action of the tide. In respect of natural maritime public property an arrangement was established in 1807, traditionally called a concession to build a dyke and by which ownership was transferred (former Article L. 64 of the Code of State Property): the concessionaire was authorised to drain land, which, once removed from the action of the tide, no longer fell within the definition of natural maritime public property and could therefore be reclassified as private property and transferred by the State. That arrangement, which was originally used to build agricultural polders, has more recently been used for property developments in the form of marinas, reclaimed from the sea. Following a reaction to what was perceived as a privatisation of the shore, a circular was issued in 1973 prohibiting such arrangements – a prohibition later confirmed by the Coastal Areas Act, which imposes a broader prohibition on any interference with the natural state of the shore. It is now no longer possible to build marinas or polders by means of concessions to build dykes by which ownership is transferred. This arrangement can now apply only to past draining works and is the sole means of legalising these (source: www.mer.gouv.fr, consulted on 3 February 2010).
44. Up until 1986 maritime public property was protected by the rules governing the highways. The Coastal Areas Act introduced new rules for the protection of natural public land (source: www.mer.gouv.fr).
45. As early as the 1960s enthusiasm for seaside holidays brought about an increase in the number of tourists and thus in the number of buildings on the seashore. Awareness of the economic importance of the seashore and of the degree to which it is coveted made it necessary to introduce a rule of overriding legal force that would arbitrate between the many uses of coastal areas. It is in this spirit that the Coastal Areas Act of 3 January 1986 (consolidated on 7 August 2007) was unanimously passed by Parliament. Section 1 of the Act provides that coastal areas are “geographical entities which call for a specific policy of development, protection and enhancement”. The general principles of that Act consist in preserving rare and fragile areas, managing spatial planning and tourist development economically and, lastly, making the shore – like the beach – more widely accessible to the public and giving priority in coastal areas to marine-related activities.
46. It is in the planning sphere that the principles established are the best known and have given rise to the most litigation. Planning permission for further development must be granted with regard to continuation of existing constructions or new hamlets. It is forbidden to build roads on the shore and through roads cannot be built closer than 2,000 metres from the shore. In order to preserve natural sites the Act imposes a “no building” rule within a 100-metre band – outside urban centres – from the shore, and restricts development in areas near the shore. Lastly, sites of outstanding interest or characteristic of the shore must be preserved and only small-scale development can be allowed.
47. The Act has laid down rules for managing maritime public property which include a mandatory public inquiry prior to any substantive change of use, clarifying the procedures for delimiting the foreshore, prohibiting – other than in exceptional circumstances – interference with the natural state of the seashore and establishing specific rules for collective mooring. Lastly, it has established the principles of unobstructed and free public use of the beaches and facilitated public access to the sea (see Article 321-9 of the Environment Code and Article L. 2124-4 of the CGPPP:
“Pedestrians shall have free access to beaches ... Beaches are fundamentally reserved for the unobstructed and free use of the public.”
48. Section 25 of the Act, now Article L. 2124-1 of the CGPPP, has given rise to a reform of the rules governing the occupation of maritime public property. It provides:
“Decisions regarding the use of maritime public property shall take account of the vocation of the zones in question and those of the neighbouring terrestrial areas, as well as of the requirements of conservation of coastal sites and landscapes and biological resources. Accordingly, they shall be coordinated with, inter alia, decisions concerning neighbouring public land.
Subject to specific provisions regarding national defence and the requirements of maritime safety, any substantive change of use of zones of maritime public property shall first be the subject of a public inquiry ...”
49. Section 27 of the Act, now Article L. 2124-2 of the CGPPP, lays down the principle that there shall be no interference with the natural state of the shore:
“Subject to sea defence operations being carried out and the construction of structures and installations required for maritime safety, national defence, sea fishing, salt works and marine cultures, the natural state of the foreshore, outside port and industrial port areas, may not be damaged, especially by dyke construction, drainage, rock filling or embankment forming, except for structures or installations related to providing a public service or carrying out construction work for which the seaside location is essential for topographical or technical reasons that have been declared of public interest.
However, land draining carried out prior to the present Act shall continue to be governed by the previous legislation.”
50. The following is an extract from the section entitled “Matching facts with the theory” of a report on the conditions of application of the Coastal Areas Act, drawn up by the Highways Authority and sent to the Minister for Infrastructure, Housing and Transport in July 2000:
“... there is an acute sense of unfairness when an application for planning permission is turned down in respect of a site where the presence of buildings would appear to suggest that at other times the authorities have been less particular. ...
The right to enjoy ‘for life’ but not to transfer a dwelling house built on maritime public property, as recognised in an agreement signed with the prefect, the right granted to a married couple until their death to camp or park their caravan in a zone in which camping was now illegal, together with an agreement expressly stipulating that the right could not be inherited, illustrate the creativity shown by the authorities in this regard in Charente-Maritime and the Morbihan. ...
All sorts of liberties are increasingly being taken in various degrees of good faith. ... Should we simply ignore the development of a black market in permits to occupy public property ... Should we not be attempting to establish liability on the part of public officials who in the course of their administrative duties have knowingly contributed to creating or exacerbating an illegal situation? ...”
51. A report entitled “Assessment of the Coastal Areas Act and measures in favour of coastal areas”, prepared by the government for Parliament (September 2007), contains a part devoted to opening coastal areas to pedestrians which is worded as follows:
“The purpose of the Coastal Areas Act is to maintain or develop tourism in coastal areas. Sections 3 to 8 of the Act, in particular, lay down the conditions in which the public may visit natural sites, the seashore and the corresponding facilities. The provision of coastal paths goes some way towards giving effect to these legislative provisions. ... The public can continue to walk along the coast by virtue of an easement over private properties and a right of way over public land that may belong to the State (maritime public property), the Coastal Protection Agency or local and regional authorities ...
Making a pathway often requires an on-site study of the terrain in order to determine whether the coastal area in question can be opened to pedestrians without harming the fauna, the flora or the stability of the soil. If the land is considered to be accessible without any risk to the environment, regard will have to be had to where the path is routed, particularly across private property, it being observed that the statutory route (three metres in width running along the boundary of maritime public property) is not always the most appropriate solution. If the statutory route across private properties has been modified, a public inquiry must be carried out. ...”
52. The Court examined the situation in sixteen coastal member States. Only four States (Albania, Bosnia and Herzegovina, Sweden and the United Kingdom) do not recognise the existence of maritime public property exclusive of any private ownership rights. In the other twelve States (Croatia, Germany, Greece, Ireland, Italy, Malta, Monaco, Montenegro, the Netherlands, Slovenia, Spain and Turkey), maritime public property belongs either to the State or to other public bodies and is inalienable on that basis. In all these States maritime public property can nevertheless be designated for private use on the basis of fixed-term concessions. And in all these States illegal use exposes the offender to administrative or even criminal penalties. In particular, the illegal construction of immovable property can result in the offender being ordered to demolish the building concerned at his or her own expense and without compensation. This type of measure also exists in Sweden, where the private right of ownership of land on the seashore is recognised by law but the land is subject to relatively strict easements which prohibit the construction of new buildings and guarantee public access to the sea.
53. In Croatia, as in Spain, the owners of buildings legally built and acquired before the entry into force of the Maritime Property Act (2006) in the case of the former and the Coastal Areas Act in the case of the latter (1988), and designed for use as a dwelling, could obtain a concession of these buildings, without any obligation to pay a charge on the sole condition that they apply for the concession within one year of the entry into force of the Act. In Spain, properties built before the Act came into force without a permit or concession as required by the previous legislation will be demolished if they cannot be legalised on public-interest grounds. Any building that was authorised before the Act came into force but is now illegal will be demolished on the expiry of the concession if it is located on land falling within the category of maritime public property. In Turkey, according to the case-law of the Court of Cassation (judgment of 10 October 2007), which refers to the judgment in Doğrusöz and Aslan v. Turkey (no. 1262/02, 30 May 2006), if the annulment of a property deed in respect of property located inside the delineation of the foreshore is compatible with the domestic legislation, the interested party can apply to the courts for compensation for his or her pecuniary loss.
54. The following relevant texts can be cited: Recommendation No. R (97) 9 of the Committee of Ministers on a policy for the development of sustainable environment-friendly tourism in coastal areas adopted on 2 June 1997, and the appendix thereto; the decision of the Committee of Ministers taken at its 678th meeting (8-9 September 1999) at which the Ministers’ Deputies took note of the Model Law on sustainable management of coastal zones (see Article 40 on public maritime domain and Article 45 on pedestrian access to beaches and coasts) and the European Code of Conduct for Coastal Zones, and agreed to transmit them to their respective governments.


ITEMID: 001-89966
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MKHITARYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3;Violation of Art. 6-1 and 6-3-b;Violation of P7-2;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1965 and lives in the village of Karakert, Armenia.
5. The applicant has been a member of the Armenian Communist Party since 1998.
6. In February and March 2003 a presidential election took place in Armenia. Following the first and second rounds of the election, a series of protest rallies were organised in Yerevan by the opposition parties, alleging irregularities.
7. On 21 March 2003 the applicant participated in a rally in Yerevan which was part of a nationwide public demonstration. Following the demonstration the applicant returned to his home in the village of Karakert.
8. On 22 March 2003 two police officers from the Baghramyan Police Department (ՀՀ ոստիկանության Բաղրամյանի բաժին) visited the applicant at his home.
9. The applicant alleged that this visit had taken place at 7 a.m. The police officers told him that he was required to accompany them to the police station as the chief wished to see him regarding matters unrelated to the demonstration the day before.
10. The Government contested this allegation and submitted that the police officers had visited the applicant at 9 a.m. because they suspected him of having participated in an unauthorised demonstration the previous day.
11. It appears from the materials of the case that the applicant was asked by the police officers to accompany them to the police station. He showed resistance but was nevertheless taken to the police station.
12. According to the Government, at the police station the arresting police officers drew up a record of the applicant’s arrest (արձանագրությաւն բերման ենթարկելու մասին) in which the reasons for his arrest were indicated. This record was allegedly signed by the applicant.
13. In his application form, the applicant alleged that at the police station he had discovered that the real reason for his detention was his participation in the demonstration the previous day. Contrary to what he had been told, the chief of police did not want to see him. His requests to have a lawyer were ignored. In a later submission, the applicant alleged that the chief of police had in fact met him and told him that he would be detained since there were instructions from the Minister of the Interior to arrest temporarily all political activists.
14. According to a written statement (արձանագրություն բացատրություն վերցնելու մասին) made by the applicant at the police station, on 22 March 2003 he had participated in a rally in Yerevan and the same evening he had returned home to his village. The next morning at 9 a.m. the police officers had visited him at home and asked him to accompany them to the police station. An argument had erupted, during which the applicant admitted having disobeyed the lawful orders of the police officers. The applicant had regretted his actions, asked for forgiveness and promised that it would never happen again.
15. The applicant alleged that he had made the above statement since the police officers had led him to believe that his arrest was not in relation to serious matters and that he would not face any serious consequences.
16. The Government contested the above allegations and submitted that the applicant had made the above statement voluntarily. The police officers had informed the applicant of his procedural rights and had advised him to avail himself of his right to have a lawyer but he had not wished to do so.
17. The police officers drew up a record of an administrative offence (վարչական իրավախախտման արձանագրություն) in which it was stated that the applicant “had used foul language and had maliciously disobeyed the lawful orders of the police officers”. The applicant was charged under Article 182 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”). The applicant’s signature did not appear on this record.
18. About two hours after his arrest the applicant was brought before Judge S. of the Armavir Regional Court (Արմավիրի մարզի առաջին ատյանի դատարան).
19. Judge S., after a brief hearing, sentenced the applicant under Article 182 of the CAO to ten days of administrative detention. The judge’s entire finding amounted to the following sentence:
“On 22 March 2003 at 9 a.m. in the village of Karakert of the Armavir Region [the applicant] maliciously refused to obey the lawful order of the officers of the Baghramyan Police Department acting in pursuance of their duties of preserving public order; in particular, while being taken to the police station, he disobeyed the police officers, used foul language and prevented them from performing their duty.”
20. According to the record of the court hearing, the hearing was held in public with the participation of the judge, a clerk and the applicant. The judge informed the applicant of his right to challenge the judge and the clerk and to have a lawyer. The applicant did not wish to lodge any challenges or to have a lawyer. The judge then proceeded with examination of evidence. The applicant submitted that the police officers of the Armavir Police Department had visited him at home at 9 a.m. that day and asked him to come to the police station. He had tried to find out why he was being taken to the police station but it turned out that he had used foul language. His attempts to find out the reasons remained unanswered. Thereafter, the judge examined the materials prepared by the police. No further evidence was produced or requests made by the applicant. The judge departed to the deliberation room, after which he returned and announced the decision.
21. According to the applicant, the hearing was conducted in the judge’s office, without examination of any witnesses, and lasted only a few minutes. No charges were presented prior to the hearing. The judge explained that he was in no position to help the applicant or to make any decision other than that which he had made as he was acting on instructions from higher authorities. He also explained that it was not possible to call a lawyer because he had many cases to examine and could not afford to spend more time on the applicant’s case.
22. The applicant was taken to the Armavir Temporary Detention Facility at the Armavir Regional Department of Internal Affairs to serve his sentence.
23. The applicant alleged that, at the detention facility, he had been asked to sign the above record of an administrative offence without reading it, which he refused to do.
24. The Government contested this allegation and claimed that the applicant had actually signed this document while in police custody prior to the court hearing.
25. The applicant alleged, and the Government did not dispute, that at the Armavir Temporary Detention Facility he had been placed with nine other people in a cell measuring 7.5 sq. m. There were no beds in the cell so the detainees had to sleep on the floor. They had no bed linen, blankets or pillows.
26. On 24 March 2003 the applicant and three others were transferred to another cell, as a result of constant oral complaints. The applicant alleged, and the Government did not dispute, that the new cell also measured 7.5 sq. m and was designed for two persons. There were only two metal beds in the cell, each 40-50 cm wide, so the applicant had to share a bed with another detainee. There was no bed linen, blankets or pillows. Two days later, after repeated oral complaints, the applicant was given bedding which was in a very dirty condition. The water provided to the detainees was of such bad quality that he refused to drink it. He had to acquire mineral water from the outside, using the money that he had, with the help of the staff of the detention facility. Food was provided only once a day and it was always buckwheat of poor quality without salt.
27. The applicant further alleged – but the Government disputed – that while in detention he had developed an allergy resulting in a big swelling on his face which had continued to recur from time to time following his release. His health deteriorated as a result of his detention.
28. The applicant finally alleged that, during the entire stay at the detention facility, he had been prevented from having any contact with his family members and had not been permitted to receive newspapers or magazines.
29. On 31 March 2003 the applicant was released from detention after fully serving his sentence.
30. On 23 September 2003 the applicant was diagnosed with a chronic infection of unknown origin.
31. In May 2004 the applicant underwent a medical examination and was diagnosed with suspected tuberculosis of the left lung. According to a medical certificate of 9 August 2005, the applicant was suffering from liver problems.
32. For a summary of the relevant provisions of the CAO see the judgment in the case of Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007). The provisions of the CAO which were not cited in the above judgment, as in force at the material time, provide:
“Maliciously disobeying a lawful order or demand of a police officer or a member of the voluntary police made in the performance of his duties of preserving public order shall result in the imposition of a fine of between 50% and double the fixed minimum wage, or of correctional labour for between one and two months with the ’s personality, the application of these measures would be deemed insufficient, of administrative detention not exceeding 15 days.”
33. The relevant provisions of the Law, as in force at the material time, read as follows:
“An arrested or detained person is entitled: ... (3) to lodge, himself or through his lawyer or lawful representative, applications and complaints alleging a violation of his rights and freedoms with the administration of the facility for arrested or detained persons, their superior authorities, a court, a prosecutor’s office, the Ombudsman, the bodies of public administration and local self-governance, non-governmental unions and [political] parties, mass media and international institutions and organisations protecting human rights and freedoms.”
“...The living space afforded to arrested and detained persons must comply with the building and sanitary-hygienic norms established for general living spaces. The area of the living space afforded to arrested and detained persons shall not be less than 2.5 sq. m for each individual.
Arrested and detained persons must be provided with individual bedding and bed linen.”
34. The relevant provisions of the Decree read as follows:
“Special sections of the [facilities for holding arrested persons] shall be reserved for persons who have been subjected to administrative detention for periods prescribed by [the CAO]...”
35. The relevant parts of the Report read as follows:
“4. Conditions of detention
a. introduction
43. At the outset, the CPT wishes to highlight the criteria which it applies when assessing police detention facilities.
All police cells should be clean, of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (for example, a chair or bench) and persons obliged to stay overnight in custody should be provided with a clean mattress and clean blankets.
Persons in custody should be able to satisfy the needs of nature when necessary, in clean and decent conditions, and be offered adequate washing facilities. They should have ready access to drinking water and be given food at appropriate times, including at least one full meal (that is, something more substantial than a sandwich) every day. Persons held in custody for 24 hours or more should, as far as possible, be offered one hour of outdoor exercise every day.
b. temporary detention centres
44. During the visit, the CPT’s delegation visited temporary detention centres in Yerevan, Akhurian, Hrazdan, Maralik and Sevan. Establishments of this type are used to hold two categories of detainees: criminal suspects and persons under administrative arrest.
Conditions of detention in the temporary detention centres visited varied from acceptable (at the Hrazdan Department of Internal Affairs) to poor (e.g. at the Akhurian and Sevan Departments of Internal Affairs).
45. As regards occupancy levels, a consultation of registers and the number of sleeping places per cell suggested that the minimum standard of 2.5 m² of living space per person, as stipulated by the Law on [Conditions for Holding Arrested and Detained Persons], was respected as concerns criminal suspects. However, the CPT must add that this minimum standard is too low. As concerns the cells for administrative detainees, the information gathered during the visit indicated that conditions could become extremely cramped, e.g. up to 6 detainees in a cell of 9 m² in Hrazdan and Sevan.
All the centres visited presented deficiencies concerning the in-cell lighting and ventilation. With the exception of the Hrazdan centre, access to natural light was poor (small windows, sometimes - as in Yerevan - covered by metal shutters) or inexistent (e.g. in Akhurian). Artificial lighting was invariably dim, with some cells (e.g. in Yerevan, Akhurian and Maralik) submerged in near darkness. As to ventilation, it left something to be desired at Yerevan and Sevan.
As to the state of repair and hygiene of the detention areas, it ranged from quite acceptable at the Hrazdan Department of Internal Affairs to poor at the Sevan establishment. Cells at the Temporary detention centre in Yerevan were in a reasonably good state of repair; however, their level of cleanliness left something to be desired. Detention areas in Akhurian and Maralik were dilapidated but clean.
46. Cells were furnished with beds or wooden sleeping platforms. The delegation noted that mattresses, sheets, pillows and blankets were available for criminal suspects at all the temporary detention centres visited; however, this was not the case for administrative detainees.
The delegation did not hear any complaints from persons who were - or had recently been - detained at the centres visited as regards access to a toilet. However, with the notable exception of the Hrazdan Department of Internal Affairs, the communal toilet and washing facilities were dilapidated and dirty.
The centres in Yerevan and Hrazdan possessed shower facilities, which could apparently be used by newly-arrived detainees (upon recommendation of a feldsher/doctor) and by those administrative detainees who stayed in the respective establishments for longer than a week. In both centres, the shower facilities were in an acceptable state of repair and cleanliness, and hot water was available. However, the only personal hygiene item that was distributed to detainees was a small piece of soap.
47. According to information provided by police officers in the majority of the temporary detention centres visited, detainees were offered food three times per day, including one hot meal. However, this was not the case at the Sevan Department of Internal Affairs, where food was only delivered once per day, reportedly due to the limited budget set aside for this purpose (320 AMD - i.e. some 50 euro cents - per detainee per day). In this situation, the provision of food was to a large extent ensured by detainees’ families. Detained persons without family contacts had to rely on the generosity of other detainees or individual police officers for food.
48. All the temporary detention centres visited possessed outdoor exercise areas, where detainees were apparently allowed to take exercise for one hour per day (in the case of women and juveniles - for two hours per day). However, at the Temporary Detention Centre of the City Department of Internal Affairs in Yerevan, the delegation was informed that detainees could be deprived of outdoor exercise as a form of punishment for violation of the centre’s internal regulations.
49. The CPT recommends that the Armenian authorities take steps at temporary detention centres to:
- ensure that all detainees are offered adequate living space; the objective should be at least 4 m² per person;
- provide adequate in-cell lighting (including access to natural light) and ventilation;
- maintain the cells and common sanitary facilities in a satisfactory state of repair and hygiene;
- ensure that all detainees (including those held for administrative violations) are offered a mattress and blankets at night;
- ensure that administrative detainees are able to take a hot shower at least once a week during their period of detention;
- ensure that all detainees are offered food - sufficient in quantity and quality - at normal meal times;
- put an end to deprivation of outdoor exercise as a disciplinary punishment.”
36. The relevant part of the Report reads as follows:
“4. Conditions of detention
a. Temporary detention centre of the Department of Internal Affairs of the City of Yerevan
20. Conditions of detention in this facility remained basically the same as those observed during the 2002 visit, i.e. poor. One positive change was that persons under administrative arrest were now provided with bedding (pursuant to Order No. 8 of the Head of the National Police of 20 August 2003). Further, the delegation was informed that the food entitlement for detainees had been increased by Government decision of May 2003. Otherwise, no refurbishment or major repairs had taken place since the previous visit.
Consequently, the CPT reiterates the recommendations made in paragraph 49 of the report on the 2002 visit, in particular as regards living space, in-cell lighting, ventilation, state of repair and hygiene.”
37. The relevant parts of the Report read as follows:
“4. Conditions of detention
a. police holding areas
28. At the beginning of the 2006 visit, the delegation was informed that, pursuant to Order NK–328–NG of the President of the Republic of Armenia, dated 28 December 2004, a large-scale refurbishment programme had been initiated in all police holding areas. The CPT welcomes this. It should also be noted that a recent amendment to the [Law on Conditions for Holding Arrested and Detained Persons] increased the official standard of living space per detained person in police holding areas to 4 m². This can be considered as acceptable when applied to multi-occupancy cells; however, 4 m² is not an adequate size for a single occupancy cell.
29. During the visit, the delegation could observe the impact of the above-mentioned programme. Some of the police holding areas (e.g. in Charentsavan, Gavar and Hrazdan) were still undergoing refurbishment and were to reopen shortly. As regards the already refurbished holding areas, conditions in them were overall of a high standard.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71601
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GARTUKAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of P4-2;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
TEXT: 7. The applicant is an ethnic Chechen; he was born in 1941 in the Chechen Republic and lived there. In 1994 his property in the Chechen Republic was destroyed as a result of military hostilities. Since 1996 the applicant has been living in Nalchik; on 30 December 1996 a forced migrant’s card was issued to him. At the material time the applicant was the deputy chairman of the Board of the Union of Consumer Associations of the Chechen Republic.
8. On 27 January 2000 the applicant returned by car from a mission in the Chechen Republic to Nalchik in Kabardino-Balkaria. He was accompanied by Mr Ba., driver, Mr M., a member of the Parliament of the Chechen Republic, and Mr Bi., a representative of the Chechen elders.
9. At about 5 p.m. the applicant’s car was stopped at the check-point “Kurp-2” on the administrative border between Ingushetia and Kabardino-Balkaria. After three hours of checking the documents and identities of the applicant and his travelling companions, officers of the Kabardino-Balkaria State Inspectorate for Road Safety (ГИБДД МВД КБР) refused them entry to Kabardino-Balkaria on the ground of their Chechen ethnic origin.
10. In the night of 27 January 2000, the applicant and his companions took a long detour and reached Nalchik through a different check-point.
11. On 24 February 2000 the applicant lodged a complaint with the Nalchik Town Court against the Kabardino-Balkaria Ministry of the Interior (МВД КБР). The applicant sought a declaration that the actions of the police officers had been unlawful, and claimed compensation for non-pecuniary damage caused by the alleged violation of his constitutional right to liberty of movement.
12. The Nalchik Town Court accepted the complaint, but no proceedings took place for more than a year. Following the applicant’s complaint to the Supreme Court of the Kabardino-Balkaria Republic, the Nalchik Town Court held a hearing.
13. On 13 April 2001 the Nalchik Town Court gave its judgment. The court found that on 28 September 1999 the Ministry of the Interior of Kabardino-Balkaria had issued Directive no. 1/220 (Указание МВД КБР № 1/220) on the procedure for crossing the administrative border of Kabardino-Balkaria by residents of the Chechen Republic. The regulation provided for stricter checks of vehicles and passengers of Chechen origin, as well as for the special registration of Chechens on the basis of migrants’ cards. The court questioned the police officers who had been on duty on 27 January 2000. The officers maintained that neither the applicant nor his companions had produced their migrants’ cards; the officers had informed their superior on duty of this situation and, pursuant to his oral order, they refused admission to the applicant and his companions. The court held that the applicant had failed to prove that he had indeed shown his migrant’s card to the police officers and, therefore, there was no ground to declare their actions unlawful. The court noted that on the same night the applicant had gained admission into Kabardino-Balkaria through a different check-point. The court also inspected the registration log of 27 January 2000 and noted that on the same day other Chechen passengers carrying migrants’ cards had been admitted into Kabardino-Balkaria.
14. The applicant appealed against the judgment of 13 April 2001. He submitted, in particular, that the regulation of 28 September 1999 had not been valid and enforceable because it had never been officially published.
15. On 22 May 2001 the Supreme Court of the Kabardino-Balkaria Republic upheld the judgment of 13 April 2001. The court pointed out that the burden of proof was on the applicant, who had failed to show that he had been denied entry because of his ethnic (Chechen) origin.
16. Article 19 of the Constitution of the Russian Federation provides for the equality of all before the law and courts of law, and equality of rights and liberties.
17. Article 27 provides that everyone lawfully within the territory of the Russian Federation shall have the right to move freely and choose his or her place of stay or residence.


ITEMID: 001-22799
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: NAKOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Dimitar Nakov, is a national of the Former Yugoslav Republic of Macedonia, who was born in 1942 and lives in Štip. He is represented before the Court by Mrs Lenče Sofronievska and Ms Ana Sofronievska, lawyers practising in Skopje.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 21 October 1983 the Štip Municipal Public Prosecutor (Општинскиот јавен обвинител од Штип) filed a request with the Štip Municipal Court (Општински суд во Штип) to open an investigation procedure against the applicant on the basis of serious and well-reasoned suspicions that the applicant had abused his official duty as a Deputy General Manger of “MK Astibo” company and had thus committed the criminal offence proscribed in Section 177 § 4 in conjunction with § 1 of the Criminal Code (Кривичен закон на Социјалистичка Република Македонија). In addition, the prosecutor proposed to the court to issue an order for the detention of the applicant on remand because there were reasonable suspicions that he might impede the investigation by influencing witnesses and destroying material evidence.
On 26 October 1983 the Štip Municipal Court rendered a decision for opening investigation proceedings against the applicant and ordered his detention on remand for 30 days, effective on the same date.
On 24 November 1983 that court quashed the detention order, finding that the grounds for maintaining the applicant in detention had ceased to exist.
On 9 December 1996 the Štip Basic Court (Основен суд во Штип) rendered a decision closing the investigation proceedings against the applicant because, as indicated in the statement of the Štip Higher Public Prosecutors Office (Вишо јавно обвинтелство во Штип) supplied to the court on 6 December 1996, the statutory time-limit for prosecution had expired.
The applicant submits that subsequently, on 6 May 1997, he filed a civil action against the State before the Štip Basic Court (Основен суд во Штип) for the compensation of pecuniary and non-pecuniary damages suffered during investigation and for deprivation of liberty. He further maintains that he instituted the court proceedings following a request filed with the Ministry of Justice (Министерство за правда) to which there was no reply within the statutory time-limit. The total amount of the applicant’s claim for just compensation was 1,224,000 denars.
On 15 September 1998 the Štip Basic Court rendered a judgment by which it partially accepted the applicant’s claim and awarded him compensation of a total amount of 950,440 denars. The amount of 50,440 denars was awarded as compensation for the pecuniary damages related to defence expenses incurred in the investigation proceedings, whereas the remaining portion of 900,000 denars was awarded in compensation for the mental sufferings and pain caused by the impairment of the applicant’s honour, reputation, and fundamental rights and freedoms experienced during the investigation proceedings, which lasted for almost 13 years.
The court also imposed an obligation on the defendant State to pay to the applicant a statutory default interest computed as of 7 May 1997, the date when the applicant lodged his complaint with the court. In addition, it awarded the applicant costs and expenditures incurred in these proceedings amounting to 89,620 denars.
On 14 December 1998 the Štip Appellate Court (Апелационен суд Штип) partially accepted the appeal lodged by the defendant State, finding that the lower court erred in the application of the law. It reversed the judgment of the first-instance court and substantially reduced the amount of compensation awarded to the applicant, by holding that the applicant was to receive compensation only for non-pecuniary damage suffered on account of his deprivation of liberty during the 30-day detention on remand, of an amount of 100,000 denars, coupled with statutory default interest which was to be computed from the date of delivery of the first-instance judgment. It also reduced the procedural costs awarded to the applicant to 38,500 denars.
On 15 March 2000 the Supreme Court (Врховен суд на Република Македонија) refused to entertain the applicant’s appeal on points of law and refrained from examining the merits of the applicant’s case on the basis of Article 368 § 2 of the Code of Civil Procedure (Закон за парничната постапка), which provides that such an extraordinary judicial remedy may be used only in disputes whose value, as set out in the impugned part of the final judicial decision, exceeds a certain value prescribed by law. The court found that the value of the applicant’s dispute as set out in the impugned Appellate Court’s decision was lower than that set by law, which according to the new procedural rule amounted to 1,000,000 denars. The applicant alleges that he was served with that decision on 30 May 2000.
Article 13 § 2 of the Constitution of the Republic of Macedonia (Устав на Република Македонија), published in the Official Gazette no.52/91, provides, inter alia, that a person unlawfully detained, apprehended or convicted has a right to legal redress and other rights determined by law.
The provision contained in Section 530 § 1, item 1, of the Code of Criminal Procedure (Закон за кривичнатa постапка), which, in accordance with the Law on the Implementation of the Constitution of the Republic of Macedonia (Закон за спроведување на Уставот на Република Македонија), published in the Official Gazette no.52/91, has continued to be applied after the independence of the FYR of Macedonia, presribes that the person entitled to compensation for damages shall be the person who was detained on remand and gainst whom no criminal proceedings were instituted or were terminated by a final court decision, or the person who was acquited by a final judgment or the criminal charges against whom were rejected.
The relevant parts of Section 382 of the Code of Civil Procedure (Закон за процесната постапка) which, in accordance with the Law on the Implementation of the Constitution has continued to be applied after the independence of the FYR of Macedonia, and which has governed the procedural rules concerning appeals on points of law (hereinafter referred as revision) prior to the enactment of the new law by which the financial threshold for its admissibility was increased, read as follows:
“The parties may lodge a request for revision against a final judgment rendered at second instance within 30 days from the date when the party was served with a certified copy of the judgment.
The revision shall be inadmissible in disputes where the claim pertains to money, the delivery of objects or the undertaking of certain activities, provided that the value of the dispute as set out in the impugned part of the final judgment does not exceed 8,000 dinars.”
Section 368 of the Code of Civil Procedure (Закон за парничната постапка), published in the Official Gazette no.33/98, applicable as of 19 July 1998, provides inter alia that revision shall be inadmissible in disputes where the claim pertains to money, the delivery of objects or the undertaking of certain activities, provided that the value of the dispute as set out in the impugned part of the final judgment does not exceed 1,000,000 denars.
The transitional and final provisions contained in Section 475 of the Code of Civil Procedure inter alia state that if the first-instance judgment was brought after the date of entry into force of the new Code, the proceedings shall continue to be conducted according to its provisions.