SECON D SECTION

CASE OF HAMER v . BELGI UM

( Application no. 21861/03)

JUDGMENT

[Extracts]

STRASBOURG

27 November 2007

FINAL

27/02/2008

I n the case of Hamer v . Belgi um ,

The European Court of Human Rights ( Second S ection ), sitting as a C hamber composed of :

András Baka , P r e sident , Françoise Tulkens , Rıza Türmen , Mindia Ugrekhelidze , Vladimiro Zagrebelsky , Antonella Mularoni , Dragoljub Popović , ju d ges , and Sally Dollé , Section Registrar ,

Having deliberated in private on 18 September and 6 November 2007,

Delivers the following judgment which was adopted on the last-mentioned date :

PROCE DURE

1 . The case originated in an application (no. 21861/03) against the Kingdom of Belgium , lodg ed with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( “ the Convention ” ) by a Dutch national, Judith Hamer ( “ the applicant ”) , on 3 July 2003.

2 . The applicant was represented by Mr C. Raymaekers , a lawyer practising in Antwerp . The Belgian Government ( “ the Government ” ) were represented by their A gent , Mr D. Flore , Senior Adviser , Federal Justice Department . Having been i nform ed of their right to participate in the proceedings ( A rticle 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court ), the Government of the Netherlands did not respond .

3 . The applicant complained of the unreasonable length of the proceedings instituted against her ( A rticle 6 § 1) for maintaining a holiday ho me erected without planning permission and illegal ly felling various trees . She complained further of discrimination in comparison with neighbouring property owners who had not been prosecuted (A rticles 6 § 1 and 14 taken together ) and of disproportionate interference with her property rights ( A rticle 1 of Protocol N o. 1) and her right to respect for her home ( A rticle 8).

4 . By a decision of 11 May 2006 , a C hamber of the former F irst S ection declared the application admissible . Following reorganisation of t h e composition of the S ections, the case was allocated to the Second S ection .

5 . Both the applicant and the Government filed further observations ( Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1955 and lives in Amsterdam .

7 . I n 1967 her parents built a holiday home without planning permission on land situated in Zutendaal ( Belgi um ). A ccording to the applicant , however, the house was built in 1962.

8 . Foll o wing h er mother ’ s death , a deed of partition was drawn up on 6 January 1986 between the applicant (who, inheriting from her mother, became the remainderman of half of the property) and her father. Th at deed, which specifically mentions the existence of the building, was registered with the Mortgage Registrar at the Ministry of Finance and a registration fee was paid .

9 . The applicant ’ s father died on 21 August 1993 and she became the full and sole owner of the entire property. On inheriting the property , the applicant specifically declared in the notarised deed of distribution that the plot was a holiday home. The d eeds were registered with the local authorities and the applicant paid the inheritance tax. From then on , the applicant paid an annual property tax ( précompte immobilier ) and second ‑ residence tax on the holiday home. According to the applicant, it went without saying that her father had also paid the relevant taxes on th e house.

10 . The applicant carried out renovations on the house costing 50 , 000 euros (EUR) and had the trees on the adjoining land felled .

11 . I n 1994 the partly government-controlled Flemish w ater - supply company c arried out works to connect the house to the drainage and water - supply systems. The re was no reaction from the local authorities at that time .

12 . On 27 January 1994 a report was drawn up by a police officer who noted that trees had been felled on the propert y in breach of A rticle 81, paragraph 3 , of the Flemish f orest ry decree of 13 June 1990.

13 . On 22 February 1994 a report was dra w n up by a police officer who not ed that the holiday home had been erected in 1967 without planning permission and that it was located in a forest ed area in which no such permission could be issued. Th e report also noted that the exterior and roof of the house had been renovated.

14 . On 8 August 1994 the applicant voluntarily reported to the police to make a statement, which was placed on record .

15 . By a decision of 11 October 1994, the municipal council ( collè ge des bourgmestre et échevins ) asked the planning inspector to issue an opinion on any remedial action to be taken. By a letter of 19 June 1995 , the planning inspector applied to the public prosecutor for the site to be restored to its original condition .

16 . Two reports dated 26 March 1996 and 8 January 1997 mention that the police had sought to question the applicant again but had found it difficult to contact her and that she was temporarily unable to travel for health reasons .

17 . At the request of the Tong eren public prosecut or , the applicant was questioned in Amsterdam on 25 March 1997 by a Dutch police officer. A report was drawn up on that occasion.

18 . On 18 May 1998 the public prosecutor asked the local police to confirm whether or not the building in issue still existed .

19 . A report of 16 June 1998 established that the situation had not changed .

20 . The Tongeren public prosecutor issued the applicant with a summons to appear in court on 12 May 1999, firstly , for having maintained a holiday home , erected without planning permission , between 27 January 1994 and 28 April 1999 and , secondly , for having felled approximately fifty pine trees i n breach of the a bove- mentioned F lemish forest ry d ecree. According to the applicant, there were at least four other houses built without permission in the same forested areas , which ha d neither been the subject of reports establishing that an offence ha d been committed n or of pro secution .

21 . On 25 June 1999 the Tongeren C riminal C ourt issued an interlocutory judgment in absentia , since the applicant had not been duly summoned.

22 . On 6 January 2000 she was once again summoned to appear before the Tongeren C riminal C ourt .

23 . On 26 May 2000 that court acquitted the applicant o f the a bove- mentioned charges. It held in particular that after twenty-seven years the applicant could legitimately assume, as could any reasonably prudent citizen, that maintaining the building in issue would no longer constitute an offence. The court further held that it did not have jurisdiction to deal with the planning inspector ’ s application to have the land restored to its original condition. The prosecut or appealed.

24 . By a judgment of 6 February 2002 , the Antwerp C ourt of Appeal upheld the judgment in so far as the applicant was acquitted o f the c harge of felling the trees. However, it found her guilty of maintaining a building erected without planning permission, pursuant to A rticle 146 of the t own and c ountry p lanning d ecree of 18 May 1999 , and changed the impugned period to between 22 August 1993 and 28 April 1999, having regard to the date on which the applicant ’ s father had died .

25 . In her submissions the applicant had alleged a violation of the reasonable - time requirement under A rticle 6 § 1 of the Convention, considering that the criminal proceedings had been conducted beyond that time - limit and that after such a long period there had been an interference with her rights of defence , in particular since it had been impossible for her to prove that the house had been built before 1962. She had also criticised the failure of the authorities to act, pointing out that her parents had paid the second - residence tax , that a notarised deed mentioning the building had been registered by the authorities , that she had paid inheritance tax on property th at included the building, that extensive infrastructure works had b een carried out by a partly government-controlled company with no reaction on the part of the local authorities and that for many years no legal action had been taken . She had also alleged a violation of the principle of protection of the legitimate expectations of citizen s and complained of d iscrimination in comparison with neighbouring property owners.

26 . The C ourt of A ppeal found that a deed of partition drawn up in 1986 and signed by the applicant established that the holiday home had been built in 1967 and concurred furthermore with the findings containe d in the re port drawn up on 22 F ebruary 1994. The C ourt of A ppeal considered that the applicant knew or should have known that the building had been erected without planning permission. As a reasonabl e and prudent citizen , and even taking account of the attitude of the authorities as she had described it, the applicant could not have infer red that the situation was totally legal and that no proceedings would be brought against her. The C ourt of A ppeal found that the applicant had acted most imprudent ly by proceeding to renovate the premises after the death of her father . It also found that the fact that four other dwellings had also been erected in the same forested area without planning permission and without their owners being pro secu ted did not amount to discrimination.

27 . With regard , more particularly, to compliance with the reasonable - time requirement , the C ourt of A ppeal found that the length of the criminal proceedings had been unreasonable but that this did not alter the fact that the offence had been established a nd that the applicant had, since 1994 , been liable to prosecution . Considering , firstly , that overrunning the reasonable time did not cause the proceedings to become time-barred and , secondly, that account should be taken of the specific circumstances of the case , and in particular of the fact that the applicant had no criminal record, the C ourt of A ppeal merely pronounced a finding of guilt against the applicant .

28 . Referring to the planning inspector ’ s application lodged pursuant to A rticles 149 et seq. of the a bove- mentioned decree of 18 May 1999, which it deemed to be reasonable, the C ourt of A ppeal ordered the applicant to restore the site to its former condition and to demolish the building within one year of the judgment becoming final, with a fine of EUR 1 25 per day ’ s delay. It also authorised the municipal council or the planning inspector to enforce the order at the expense of the applicant in the event of non-compliance with the demolition order . The applicant was also ordered to pay the costs and expenses of the proceedings.

29 . The applicant appealed on point s of law .

30 . By a judgment of 7 January 2003 , the Court of Cassation dismissed the appeal.

31 . On grounds based on a violation of A rticle 6 § 1 of the Convention, the applicant claimed that the length of the criminal proceedings had been unreasonable and it could therefore be concluded that they were time-barred .

32 . The Court of Cassation held that exceeding a reasonable time did not cause criminal proceedings to become time-barred and that , consequently, the C ourt of A ppeal had not been bound to base its decision on th at point.

33 . The applicant also submitted that , be a ring in mind that the C ourt of A ppeal had merely pronounced a finding of guilt against her , she could not be bound to restore the site to its original condition or to pay the costs of the proceedings.

34 . The Court of Cassation responded that re s toration of the site to its original condition did not constitute a penalty but a civil measure, in the same way as t he payment of the full costs of the proceedings at the fixed rate , and that consequently these measures were not inconsi stent with a simple finding of guilt.

35 . The court also dismissed the ground based on A rticle 8 of the Convention and A rticle 1 of P rotocol N o. 1 whereby the applicant alleged tha t after a thirty- year period during which t hey had tolerated the situation , thus creating an apparently lawful situation, the authorities could no longer rely on the public interest to justify interference with the peaceful enjoyment of her property rights and respect for her private life.

36 . The Court of C assation found that the C ourt of A ppeal had held, in its unfettered discretion, that the applicant had been most imprudent in maintain ing the house without planning permission, that the measure sought by the planning inspector was reasonable and that , consequently, th at ground of appeal was inadmissible.

37 . The house was demolished in July 2004 pursuant to an enforcement order . According to an expert, the value of the house at th e material time was EUR 62 , 635. The demolition costs amounted to EUR 3 , 025.

II. RELEVANT DOMESTIC LAW AND PRACTICE

38 . The Flemish town and country planning decree of 18 M ay 1999 (which came into force on 1 O ctober 1999) provides as follows.

“ Article 107

The Flemish G overnment shall determine the conditions that must be met by an application in order to be considered complete. Where the application concerns works, operations or modifications as referred to in A rticle 158, the contractor shall mention specifically which works, operations or modifications have been carried out , made or continued without permission and for which of these works, operations or modifications planning permission is being sought.

T he Flemish G overnment may allow joint applications for permission to be made to the local authority under this decree and under the decree of 28 June 1985 concerning environmental permits . The Flemish G overnment may determine the conditions and procedures for compiling the application file .

...

CHAP T E R I. – Criminal provisions

Section 1. – Penalties

Article 146

Any one who

1. carries out, continues or maintains the operations, works or modifications defined in A rticles 99 and 101, either without advance permission or in contravention of th at permi ssion , or after the expiry, cancellation or lapse of the term of that permi ssion , or where that permission has been suspended

...

shall be liable, on conviction, to a prison sentence of between eight days and five years and a fine of between ( EUR 26) and ( EUR 400 , 000) or either of these penalties .

Article 147

All the provisions of Book 1 of the Criminal Code, including Chapter VII and A rticle 85 , shall apply to the offences referred to in A rticle 146.

Section 2. – Inspection

Article 148

Without prejudice to the powers of senior police officers and their assistants [ agents et officiers de police judiciaire ] , the planning inspectors, the other civil servants appointed by the Flemish G overnment, and the civil servants of the province and the municipalities of the province appointed by the governor thereof shall be authorised to detect the offence s defined in this p art a nd to place them on record . The reports establishing the offences described in this p art s hall remain valid until any evidence to the contrary is produced.

The senior poli c e officers , their assistants and the civil servan ts referred to in the first paragraph shall have access to the work site and to the buildings in order to carry out any inspections and draw up any observations as may be necessary .

...

Section 3. – Remedial measures

Article 149

§ 1. In addition to the penalty , and upon the request of the planning inspector or the municipal council of the municipality on whose territory the works, operations or modif ications referred to in A rticle 146 have been carried out, the court shall order that the site be restored to its original condition or that the illegal use cease and/or t he execution of any construction or adaptation works and/or pay ment of a fine equal to the capital gain accrued on the property subsequent to the offence.

The capital gain can no longer be claimed in the following cases:

1 . in the event of repetition of an offence that has been made punishable by this decree ;

2 . in the event of failure to comply with a cessation order ;

3 . where the off ence causes unacceptable planning-related nuisance for neighbours;

4 . where the offence constitutes a serious breach of the essential planning requirements for intended use under a spatial development or land-use plan.

The Flemish G overnment may determine other conditions and procedures in cases in which the capital gain can not be claimed.

Where the action brought by the planning inspector and th at brought by th e municipal council do not coincide , the action brought by the first - mentioned shall take priority.

For execution of the remedial measures, the court shall set a time - limit of a maximum of one year and , upon expiry thereof, at the request of the planning inspector or the municipal council , a fine per day ’ s delay in implementing the remedial measure.

§ 2. A n a ction for remedial measures shall be lodged with the prosecutor ’ s office by ordinary letter, on behalf of the Flemish region or the municipal council , by the planning inspectors and officials of the municipal council .

§ 3. Where the action involves a n application for construction or adaptation works and/or payment of an amount equal to the capital gain, explicit reasons must be given for that action in terms of town and country planning , compatibility with the immediate environment and the seriousness of the offence .

§ 4. The application shall mention at least the relevant requirements and give a description of the situation prior to the offence. A recent extract from the planning register shall a ccompany the application.

The Flemish G overnment may establish additional conditions which must be met by the letter referred to in § 2, first sub-paragraph , and the file accompanying that letter .

§ 5. The c ourt shall determine the amount of the capital gain .

Where the offender is ordered to pay an amount equal to the capital gain, he or she may validly discharge his or her obligations by restoring the site to its original condition or by ceasing the adverse use in the year following the judgment.

The Flemish G overnment shall determine the method for calculati ng the amount to be claimed and payment of the capital gain .

Article 150

Where an action for remedial measures brought by the civil party on the one hand and the planning inspector or the municipal council on the other do not co incide , the court shall determine the necessary remedial measure that it deems appropriate .

Article 151

The planning inspector and the municipal council may also , before the court of first instance , sitting as a civil court, in the jurisdiction in which the works, operations o r modifications referred to in A rticle 146 are wholly or partially carried out, apply for remedial measures as defined in A rticle 149 § 1. The provisions of A rticle 149 § 1, secon d sub- paragraph , §§ 3, 4 and 5 and A rticle 150 shall also apply .

Section 4. – Execution of the judgment

Article 152

The offender shall immediately inform the planning inspector and the municipal council , by registered mail or by delivery against receipt, when the reparation measure imposed has been voluntarily carried out . Following a site inspection , the planning inspector shall immediately draw up a report of his findings.

The planning inspector shall send a copy of the report of his findings to the municipal authority and to the offender.

Unless there is any evi dence to the contrary, the report o f findings alone shall cons titute evidence that the re medial measure has been performed and of the date thereof .

Article 153

Where the site is not rest o red to its original condition , adverse use is not ceased or construction or adaptation works are not carried out within the time - limit set by the court, the decision of the court referred to in A rticles 149 and 151 shall order that the planning in spector, the municipal council and , as the case may be, the civil party may proceed to enforce the judgment themselves .

The authority or individual e nforcing the judgment or order shall be authorised to sell, transport and remove the materials and objects generated by the restoration of the site to its original condition or the cessation of adverse use.

Any offender still in default shall be bound to indemnify all e nforcement costs , less the proceeds from the sale of the mat erials and items , upon presentation of a statement, issued by the authority referred to in sub - paragraph two, or budgeted and declared enforceable by the civil court judge dealing with attachment of property .

...

Article 158

Where the offence referred to in A rticle 146 does not consist of the carrying out of works or the conduct or continuation of operations or modifications that are in contravention of spatial development or land - use plans or execution of the rules laid down by virtue of this decree or the requirements of a permit to divide into plots, and where either planning permission is subsequently obtained with a view t o such works, operations and mod ifications, or the site is restored to its original condition and the adverse use is terminated, the planning inspector may reach a settlement with the offender provided that he has paid the amount agreed in settlement within the time - limit set by the planning inspector .

The planning inspector shall not propose a s ettlement until he has received the prior written agreement of the public prosecut or .

P ay ment of the amount agreed in settlement brings an end to the criminal proceedings and the right of the authorities to claim compensation . ”

39 . By a judgment of 3 June 2005 , the Court of Cassation reiterated in the following terms the scope of the powers of control of the courts and tribunals where an application is brought before them based on A rticle 149 of the decree of 18 May 1999:

“ A rticle 149 § 1 , first sub - paragraph, as amended, of the decree must be read in the context of A rticle 159 of the Constitution, according to which the courts and tribunals do not apply administrative measures which are not in conformity with the law; ... According to that last provision, it is a matter for the court to assess the formal and substantive legality of the application referred to in A rticle 149 as amended and to ascertain whether it is in conformity with the law or whether it is founded on an abuse or misuse of powers ; ... More particularly, the court must ascertain whether the authority ’ s decision to seek a particular remedial measure has been taken for the sole purpose of proper town and country planning; ... If it appears that the application is founded on grounds that are unrelated to town and country planning or a clearly unreasonable v iew of proper town and country planning, the court shall not allow the application ; ... It is not a matter for the court , however , to assess the appropriateness of the measure sought; the court must allow the re medial measure sought if it is in conformity with the law . ”

40 . On 13 S eptembe r 2005 the Court of Cassation held in another judgment that “ the court must order the site to be restored to its original condition whenever that proves necessary for the purposes of eradicating the consequences of the offence ” .

41 . A rticle 12 of the r oyal d ecree of 28 December 1972 concerning the design and implementation of draft regional plans and regional plans define s forest ed area s as follows:

“ Forest ed areas are areas that are wooded or that are to be planted for the purposes of commercial exploitation . They may in corporate buildings that are necessary for such exploitation and for monitoring the timber, as well as hunting and fishing shelters , provided that the latter can not be used as a residence, even on a temporary basis. Reconversion into an agricultural zone shall be allowed in accordance with the provisions of A rticle 35 of th e Rural Code relating to the demarcation of agricultural and forest ed zones . ”

42 . Section 65 of the T own and C ountry P lanning A ct of 2 9 March 1962 provides :

“ 1 . In addition to the penalty, the court shall order, at the request of the d elegated civil servant or the m unicipal council, but with their mutual agreement in the cases referred to in ( b ) and ( c ),

( a) eithe r restoration of the site to its original condition

(b ) or landscaping or development works

( c) or payment of an amount representing the capital gain ac crued on the property subsequent to the offence ;

...”

43 . By a judgment of 26 November 2003 ( n o. 154/2003) , the Administrative Jurisdiction and Procedure Court ( Cour d ’ arbitrage ) considered that , although of a civil nature , a re medial measure is a matter of public policy and is, in certain re spects, an ancillary penalty which cannot be dissociated from the criminal penalty ; in fact, this me a sure is an extension of th e criminal penalty because it is intended – beyond the criminal conviction – to prevent the continuation of a situation perpetuating the offence. The case - law of the Court of Cassation conflicts with that (judgments of 8 September 1998 and 16 January 2003).

44 . The L aw of 17 April 1878 contains the preliminary part of the Code of Criminal Procedure. A new section 21 ter , which came into force on 12 December 2000, is worded as follows:

“ If the length of the criminal proceedings should exceed a reasonable time, the judge may make a simple finding of guilt or impose a penalty l ower than the minimum penalty provided for by law .

If the judge makes a simple finding of guilt, the guilty party shall be ordered to pay costs and, as appropriate, to perform restitution . A s pecial confiscation order shall be made . ”

45 . In relation to the prosecution of town and country planning offences, the Government have produced statistics covering the years 1998-2003. For the Flemish region alone, these statistics establish that , on average, 2 , 580 reports are drawn up every year and that 251 judgments ordering restoration were issued in 1998 ( out of 453 decisions), 141 in 1999 ( out of 329), 183 in 2000 ( out of 328), 105 in 2001 ( out of 193), 76 in 2002 ( out of 129) and 131 in 2003 ( out of 264).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

46 . The applicant co m plain ed that the reasonable time had been exceeded. She point ed out that even though the house had been built in 1967 at the la test , that she had inherited it in 1993 and that the report recording the offence had been drawn up in 1994, she had not been convicted until 200 2 . She consider ed that , once the C ourt of A ppeal had found that the reasonable period had been exceeded in the instant case, it should have concluded that the criminal proceedings were time-barred . She submit ted further that the order to restore the site to its original condition and to pay the costs of the proceedings was inconsistent with a mere finding of g u ilt against her. She relie d on Article 6 § 1 of the Convention, the relevant parts of which read as follows :

“ In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearin g within a reasonable time, by [ a ] ... tribunal ... ”

47 . According to the Government, the restoration of the site to its original conditio n did not constitute a penalty but a measure to re medy the damage done to the environment, since it could be ordered both by the criminal and the civil courts in accordance with A rticle 151 of the decree of 18 May 1999. It did not involve penalising the owner of the site maintained , but rather preventing the continuation of an offence . The measure was fully justified in order to protect the public interest and to re medy environmental damage. The strictly re medial scope of an order to demoli sh an unlawful building had more over been confirmed by the case - law of the Court itself, notably in Saliba v . Malt a ( no. 4521/02, 8 November 2005). I t was a civ i l measure , not a criminal penalty.

48 . The Government contend ed that a mere finding of guilt without any penalty constitute d , having regard to the Court ’ s case-law, an acceptable consequence of the finding that the reasonable time ha d been exceeded . Reparation of loss incurred as a result of the time - limit having been exceeded co u ld not preclude reparation of the loss arising , for the general interest, out of acts constituting an offence.

49 . The Government consider ed that the length of the procee d ings ha d no bearing on the lawfulness of a building under the town and country planning requirements laid down in the general intere s t. The applicant had been prosecuted for maintaining an unlawful building , which constituted a continu ing offence not subject to limitation. For s u c h time as the offence continued without the building being demolished , the re medial measure could not be excluded by way of compensation for loss incurred as a result of the reasonable time having been exceeded . It should also be pointed out that even if the domestic court had, by way of a penalty for exceeding the reasonable time, declared the proceedings inadmissible, there would have been nothing to prevent the planning inspector or the municipal council from applying for demolition in the civil courts .

50 . The applicant challenge d th at argument. She claim ed that the Belgian courts had acknowle dg ed that the reasonable time had been exceeded but that this overrunning had not been sufficiently compensated by th at finding in so far as she had been ordered to demolish her holiday home on pain of a fine. She explain ed that, being in no doubt as to t he lawfulness of the building, she had incurred considerable renovation costs and had been obliged to pay substantial sums of money to ensure that the site was restored to its original condition. Having regard to the criminal nature of the principal offence and to the seriousness of the measure imposed for the offender , the impugned measure did in fact constitute a penalty. The applicant consider ed furthermore that the judgment was contradictory in so far as it made a mere finding of guilt as regards the offence of maintaining an unlawful building , yet also order ed her to restore the site to its original condition. The measure was not a remedial one because in th is particular case no damage had been done to the landscape since the house was not visible and the authorities had tolerated the building for more than thirty years.

51 . The Court considers it necessary in the first place to single out the following facts for particular consideration .

52 . As regards the offence of maintaining a building erected without planning permission , the C ourt of A ppeal, bearing in mind that th e reasonable time under Article 6 of the Convention ha d been exceede d, made a mere finding of g uilt against the applicant under A rticle 21 ter of the C ode of C riminal P rocedure. According to that provision, the court may, if the reasonable time has been exceeded, make a simple finding of guilt or impose a penalty lower than the minimum penalty provided for by law.

53 . In addition, t he C ourt of A ppeal ordered the applicant to restore the site to its former condition and accordingly to demolish the impugned building.

54 . This “ re medial measure ”, consisting of restoring the site to its original condition , is provided for in A rticle 149 of the decree of 18 May 1999 ( see paragraph 38 above), which stipulates that in addition to the “ penalty ” the criminal court shall order the site to be restored to its original condition upon an application by the planning inspector. The court is no t empowered to take the initiative in this regard (it cannot therefore order the measure of its own motion ) ; it ca n review the l awfulness of the measure but not the appropriateness. Furthermore, the measure may only be ordered as a result of a contravention of planning law and is therefore dependent on the outcome of the criminal proceedings .

55 . In the instant case, although the C ourt of A ppeal had held that the reasonable time within the meaning of Article 6 of the Convention had been e xceeded, it drew no conclusion from that as regards the re medial measure for which the competent planning inspector had applied to the public prosecutor in June 1995, and ordered the demolition of the house in issue.

56 . The Government allege d that there was no provision in A rticle 21 ter of the C ode of C riminal P rocedure for the “ re medial measure ”, which was of a strictly civil nature and was not dependent upon the outcome of criminal proceedings in the event that the reasonable time was exceeded.

57 . The Court notes that , even assuming that the measure falls under the civil head of Article 6, it is nonetheless subject to the reasonable - time requirement . It notes further that the classification of the re medial measure i n domestic law is the subject of con flicting legal theory and case - law (see , in particular , the judgments of the Court of C assation of 8 September 1998 and 16 January 2003 , according to which it is not a penalty but a civil measure , and the ruling of the Administrative Jurisdiction and Procedure Court of 26 November 2003 , according to which , although civil, the measure cannot be dissociated from the criminal proceedings – para graph 43 above). In the present case the planning inspector ’ s application arose out of criminal proceedings brought against and ha ving very serious consequences for the applicant.

58 . In its decision on admissibility of 11 May 2006, the Court concluded , having regard to the fact that the reasonable time had been exceeded, that the fact that the C ourt of A ppeal had merely pronounced a finding of guilt against the ap plicant did not deprive the applicant of her status as victim because she had simultaneously been ordered to restore the site to its original condition.

59 . The Court reiterates that the concept of a “criminal charge ” within the meaning of Article 6 is an autonomous one. In earlier case-law, the Court has established that there are three criteria to be taken into account when it is being decided whether a person was “charged with a criminal offence” for the purposes of Article 6. These are the classification of the offence under national law, the nature of the offence , and the degree of severity of the penalty that the person concerned risked incurring (see, among other authorities, A.P., M.P. and T.P. v . S witzerland , 29 August 1997, § 39, Re ports of Judgments and Decisions 1997-V).

60 . Having regard to the foregoing considerations, the Court considers that the demolition measure can be regarded as a “ penalty ” for the purposes of the Convention.

61 . Although the length of the proceedings on the merits (a little over three and a half years for three levels of jurisdiction between May 1999 and January 2003) does not in itself appear to be unreasonable, the police report recording the unlawful nature of the buil d in g dates from February 1994. It is on the basis of that finding th at the continuing offence consisting of maintaining a building erected without planning permission was established and the applicant was subject to criminal proceedings and thus charged within the meaning of the case-l a w. Therefore, the reasonable time commence d as of the date of that report ( see Hozee v . t he Netherlands , 22 May 1998, § 43, R eports 1998-III , and W ł och v . Pol and , no. 27785/95, § 144 , ECHR 2000-XI). Consid ered as a whole, the proceedings therefore lasted between eight and nine years for three levels of jurisdiction, including more than five years at the investigation stage, which , however, was not particularly comp l ex.

62 . Furthermore, the Court sees no evidence to show that at any s tage of the proceedings the applicant hindered the smooth running of the investigation. In these circumstances, the Court ca n not deem a period of more than five years merely for the investigation phase to be reasonable.

63 . T here has therefore been a violation of A rticle 6 § 1 of the Convention.

...

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL N o . 1

71 . The applicant complain ed of a violation of her property rights guaranteed by A rticle 1 of P rotocol N o. 1:

“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties . ”

72 . Accordi ng to the Government, the local authorities d o not inspect all inheritance deeds or monitor all tax returns or requests to be connected to the water - s upply s ystem for the purposes of checking whether the buildings in question ha d planning permission . Moreover, to make buildings erected without planning permission immune from taxation would be tantamount to encouraging this kind of offence. The water - supply companies were not empowered to check the lawfulness of the buildings that they connect ed to their network. F u rthermore, the registration information provided by the applicant date d back to 1993-94, the time when the first re cord of offence was drawn up . The building ban covering the applicant ’ s land in no way constitute d expropriation since she retained her full property rights . In addition, the States P arties were able to control the use of property for reasons of town and country planning affect ing the general interest , and equip themselves with effective tools to ensur e the pertinence of any measures thus adopted. Such tools include d demolition and the re s toration to their original condition of sites on which bui l dings ha d been erected in breach of legislation requiring planning permission . It had to be borne in mind that the applicant ’ s house could not be rendered compliant as it had been built in a forest ed area i n which no building was allowed . Admittedly, the applicant had received no compensation in th is particular case but it was in full knowledge of the facts that her father had built the house in an area i n which no building was permitted. Unlike the case of Öneryıldız v . Tur key ([GC], no. 48939/99, ECHR 2004 -XII ), there was no uncertainty in Belgian law as to the legal status of the house in issue. Furthermore, the Belgian State could not be accused of negligence. In the instant case, the applicant ’ s situation had not been the subject of any disclosure that could have led to any assumption of tolerance on the part of the authorities.

73 . The Government indicate d that the aim of the interference arising out of a demolition order made on the basis o f town and country planning legis l a tion was to protect the environment. That was a legitimate aim, in accordance with the general interest for the purposes of the second paragraph of A rticle 1 of Protocol No. 1 , as the Court ha d already affi r med in Pine Valley Developments Ltd and O th e rs v . Ir e land ( 29 N ovembe r 1991 , § 57, S eries A no. 222). The applicant could not claim any legitimate expectation on the basis of the age of the building. She had inherited a property which was in contravention of the law and had immediately carried out acts which themselves requir ed planning perm ission , without making any attempt to apply for that permission or t o ascertain whether or not the building could be made compliant . She could not therefore claim any tolerance on the part of third parties that had prejudiced her own rights. The measure complained of was therefore in no way disproportionate.

74 . According to the applicant, the Belgian authorities had to be deemed to have been aware o f the existence of the building , notably because between 1994 and 2005 she had paid second - residence tax on it in addition to property t ax and because various documents referr ing to the building had been registered. The G overnment, which had taken no action in relation to this house for over thirty years, could not rely on their poor organ i sation. The general interest require d coherent, clear and rapid action on the part of the authorities. The circumstances of the ca s e demonstrate d t hat they had waived their right to take action in the instant case. Accordingly, it must be held that they could not sud denly go back on their decision without breaching the principle of the legitimate expectations of citizens. The en forced demolition had therefore constituted a disproportionate interference with the applicant ’ s property rights .

75 . The Court reiterates i t s case-law according to which the concept of “ possessions” in the first part of Article 1 of Protocol N o. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law. The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantiv e interest protected by Article 1 of P rotocol N o. 1 (see, mutatis mutandis , Zwierzyński v . Pol and , n o. 34049/96, § 63, ECHR 2001-VI). Certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision ( see Iatridis v . Gr eece [GC], no. 31107/96, § 54, ECHR 1999-II, and Beyeler v . Ital y [GC], no. 33202/96, § 100, ECHR 2000-I). “Possessions” can be “existing possessions” or assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment of a property right ( see, for example , Prince Hans-Adam II of Liechtenstein v . Germany [GC], no. 42527/98, § 83, ECHR 2001-VIII, and Gratzinger and Gratzingerova v . t he Czech Republic ( de c .) [GC], no. 39794/98, § 69, ECHR 2002-VII).

76 . In the instant case, the impugned building had been in existence for twenty-seven years before th e domestic authorities recorded the offence . Recording breaches of the town and country planning legislation and allocating the necessary resources to do so is undeniably the responsibility of the authorities . T he authorities could even be considered to have been aware of the existence of the building in issue since the applicant had paid tax es on th e building, just as her father had done before her. In this regard, the Belgian State cannot properly rely on its internal organisation and a distinction between the town and country pl a nning authorities and the tax authorities. It must therefore be considered that the authorities tolerated the situation for twenty-seven years (1967-94) and continued to tolerate it for ten years after the offence had been established (1994-2004, the year in which the house was demolished). After such a long period had elapsed , the applicant ’ s prop rietary interest in the enjoy ment of her holiday home had been sufficiently established and weighty to amount to a substantive interest and therefore a “possession” within the meaning of the rule expressed in Article 1 of Protocol No. 1. Furthermore, the applicant had a “legitimate expectation” of being able to continue to enjoy that possession .

77 . The Court observes that the applicant ’ s house was demolished on the orders of the domestic authorities. This was undeniably an interference with the applicant ’ s “possession”. Th at interference was in accordance with the law (the decree of 18 May 1999). It was also intended to control the use of property in accordance with the general interest since it involved bringing the property in to conformity with a land-use plan establishing a forest ed zone i n which no building was permitted. The debate therefore centres on the proportionality of this interference. In this regard, the Court must ascertain whether a fair balance was struck between the demands of the general interest and the requirements of the protection of the individual ’ s fundamental rights. The search for this balance is reflec ted in the structure of Article 1 as a whole, and therefore also in the second paragr aph thereof: there must be a rea sonable relationship of proportionality between the means employed and the aim pursued ( see Chassagnou and O thers v . France [GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR 1999 ‑ III). The requisite balance will be upset if the person concerned has had to bear “an individual and excessive burden” ( see, in particular, James and O thers v . t he United Kingdom , 21 February 1986, § 50, S eries A no. 98).

78 . The Court notes that this case concerns rules applicable to town and country planning and environmental protection, areas in which the States enjoy a wide margin of appreciation .

79 . It reiterates that while none of the A rticles of the Convention is sp ecifically designed to provide genera l protection of the environment as such ( see Kyrtatos v . Greece , no. 41666/98, § 52, ECHR 2003 -VI ), in today ’ s society the protection of the environment is an increasingly important consideration ( see Fredin v . S weden ( no. 1) , 18 February 1991, § 48, S eries A no. 192). The environment is a cause whose defence arouses the constant and sustained interest of the public , and consequently the public authorities . Financial imperatives and even certain fundamental rights, such as ownership , should not be afforded priority over environmental protection considerations , in particular when the State has legislated in this regard. The public authorities therefore assume a responsibility which should in practice result in their intervention at the appropriate time in order to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffective .

80 . Thus, restrictions on property rights may be allowed on condition, naturally, that a fair balance is maintained between the individual and collective interests concerned ( see , mutatis mutandis , Fotopoulou v . Gr eece , no. 66725/01, 18 November 2004).

81 . The Court therefore has no doubt as to the legitimacy of the aim pursued by the impugned measure : the protect ion of a forest ed area i n which no b u ilding is permitted.

82 . It remains to be determined whether the benefit for proper town and country p lanning and protection of the forest ed area in which the applicant ’ s house was located can be considered proportionate to the inconvenience caused to her. In this regard, various factors must be taken into consideration .

83 . Firstly, the Court notes that a great deal of time had el a psed since the offence occurred. The applicant , and her father before her , had had peaceful and uninterrupted enjoyment of the holiday home for a total of thirty-seven years. The deed of partition drawn up on 6 J anuary 1986 between the applicant and her father had been registered with the Mortgage Registrar at the Ministry of Finance and a registration fee had been paid ( see paragraph 8 above). On the death of the applicant ’ s father in 1993, the notarised deed of distribution specifically referred to the house as a holiday home and the applicant paid the inheritance tax. Since then, the applicant had been paying an annual property tax and second - residence t ax on th e house ( see paragraph 9 ab ove). The water - supply company carried out works to connect the house t o the water and drainage system with no reaction from the authorities ( see paragraph 11 above). Furthermore, when the offence was established , after twenty-seven years, the authorities then allowed a further five years to elapse before instituting criminal proceedings, th us treating the matter with no particular urgency . It is therefore clear that the author ities knew or should have known of the existence of the applicant ’ s house for a long time . However, notwithstanding the provisions of the relevant legislation, they failed to take the appropriate action to ensure compliance. T hey thus contributed to the continuation of a situation which could only be detrimental to the protection of the forest ed area which that legislation sought to protect.

84 . The Court observes , secondly , that A rticles 107 and 158 of the decree of 18 M ay 1999 , taken together, make general provision for an application to be made to render compliant a building without planning permi ssion . However, the provisions of A rticle 158 clearly indicate that a building erected in contravention of a land- use plan ( see paragraph 38 above) cannot be rendered compliant. The applicant ’ s house was located in a forest ed area and, under A rticle 12 of the r oyal decree of 28 December 1972, that area could incorporate only buildings necessary for the exploitation and monitoring of the timber, as well as hunting and fishing shelters, provided that the latter could not be used as a residence, even on a temporary basis ( see paragraph 41 above).

85 . In addition, the fact that the applicant had not been the owner of the property when the house was built and that the authorities had failed to react for a protracted period of time could not give the applicant the impression that proceedings could not be brought against her , since under Belgian law the offence was not subject to limitation and the public prosecutor could decide to apply the law at any time.

86 . Lastly , the Court cannot see wh at measure other than restoration of the site could have been sought by the planning inspector in this particular case , particularly as none of the measures set out in A rticle 149 § 1 of the decree of 18 M ay 1999 (order to cease all adverse use, order to carry out building works, payment of the capital gain acqu ired by the property subsequent to t he contravention – see paragraph 38 above) appear ed appropriate in the particular circumstances of the case, which concerned an undeniable interference with the integrity of a forest ed area i n which no building was permitted.

87 . As a secondary consideration , the Court distinguishes this case from the “Turkish coast” cases (see, among many others, N.A. and O thers v . Tur key , no. 37451/97, ECHR 20 05-X). In those cases, the applicants ’ property had been register e d in the land register and the parties concerned had obtained from the Ministry of Culture and Tourism a tourist- investment certificate with a view to building a hotel on the land , a nd the State Planning Agency had awarded them an investment- incentive certificate with a view to building the h otel. Th o se cases did not therefore involve the mere ly implicit consent of the authorities, as in the instant case, where the house in issue had been erected without permission by the applicant ’ s parents.

88 . All the above lea d s the Court to conclude that the applicant has not suffered disproportionate interference with her property rights.

89 . Accordingly, there has been no violation of A rticle 1 of Protocol N o. 1.

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V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

94 . Under Article 41 of the Convention ,

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party .”

A. D amage

95 . The applicant submitted that she ha d incurred considerable pecuniary damage. Since the property in issue had been in existence for twenty-seven years without having been subject to any measures, she had undertaken restoration of the land and house in good faith and invested considerably in it. When she had inherited the house from her father, it had been in poor condition; she had decided to renovate it, being in no doubt as to its lawful ness . She had thus incurred damage of 62 , 635 euros (EUR) for the loss of the house, EUR 43 , 865.46 for the investments made and EUR 3 , 025 for the demolition costs .

96 . The applicant consider ed that she ha d also suffered non-pecuniary damage , which she quantifie d ex aequo et bono at EUR 25 , 000. Firstly, she ha d been deprived of the holidays and periods of rest that she used to take at her second home. Furthermore, since it was the only thing that she had inherited from her father, in her view the house had been of particular value.

97 . The Government consider ed that the amount indicated by the applicant as representing the market value of her property was unrealistic. In their view, the house was worthless on the property market. Articles 1 41 and 142 of the decree of 1 8 M ay 1999 imposed an obligation, upon the sale of any immovable property, to inform the buyer of the existence of planning permi ssion . Since she would have been unable to produce evidence of such permi ssion , the applicant would not have been able to find a buyer. Her house had not thus added any value to the land, of which , moreover , she had not been dispossessed. Her clai m in respect of pecuniary damage should therefore be dismissed.

98 . The Government left the matter of non-pecuniary damage to the Court ’ s discretion.

99 . The Court points out that the violation found relates to the fact that the reasonable time was exceeded. It does not however see any causal link between that violation and the alleged pecuniary damage. It therefore dismisses this head of the claim.

100 . As to non-pecu niary damage, the Court considers that the unreasonable length of the investigation in issue caused prolonged uncertainty as to the fate of the house. This situation o f uncertainty justifies an award of compensation. Ruling on an equitabl e basis, as required by Article 41, the Court awards the applicant EUR 5 , 000 for the non-pecuniary damage thus incurred.

...

C. Default interest

105 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points .

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of A rticle 6 § 1 of the Convention;

...

3. Holds that there has been no violation of A rticle 1 of Protocol No. 1;

...

5. Holds

( a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts :

( i ) EUR 5 , 000 ( five thousand euro s ) in respect of non-pecuniary damage ;

...

6. Dismisses the remainder of the applicant ’ s claim for just satisfaction .

Done in French , and notified in writing on 27 November 2007 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Sally Dollé András Baka Regi s trar Pr e sident