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THE FACTS

The applicants, Ms Isabelle Brosset - Triboulet and Ms Eliane Brosset ‑ Pospisil , are French nationals who live in Sainte-Croix-Grand-Tonne and Caen respectively . They were represented before the Court by Mr P. Blondel, of the Conseil d ’ Etat and Court of Cassation Bar . The French Government (“the Government ” ) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.

A. The circumstances of the case

T he facts of the case, as submitted by the parties, may be summarised as follows .

On 26 May 1909 A. purchased the I sle of Irus in the Morbihan Bay from R., by contra c t signed before a notary .

By a decision of 25 September 1909, the Prefect of Morbihan authorised A. to build a dyke on a plot of maritime public property situated on land belonging to the municipality of Arradon for the purposes of installing a four - metre by four - metre approach ramp on it from which he could reach the I sl e of Irus , in particular , by boat .

By a decisio n of 25 August 1911, the Prefect of Morbihan authorised A. to enlarge the dyke . The relevant parts of th e decision read as follows :

“ ... From the point of view of conformity with the requirements of the Highways Authority , the dyke – once enlarged as requested – cannot interfere with navigation i n any way , on condition that it is levelled a bove the high and spring tide water mark s , or with maritime coastal traffic on condition that it is accessible to the public at all times .

Regarding the fee to be charged ... the permittee shall pay an annual fee of 30 francs 40 centimes , on the basis of FRF 0 . 10 per surface m e tre.

...

In the event that this authorisation is revoked , the permittee must, if requested , restore the site to its original state. Should he fail to fulfil this obligation, the authorities shall do so of their own motion and at his expense . Any advance payments shall be reimbursed by the permittee on the basis of instruments enforceable at the P refect ’ s request ... ”

On 2 May 1921 a deed of sale concluded before M r Maigre , a notary, was published in the Vannes M ort gage R egistry . By that deed , A. transferred ownership of the Is l e of Irus to S.

The registration of this deed by the M ortgage R egistry , in so far as it relate s to the dyke in particular , reads as follows :

“ ... Entry into possession – The purchaser shall acquire owner ship of the Isl e of Irus hereby conveyed to him from the date hereof and by virtue of this deed and shall take possession th ereof from 1 March nine teen hundred and twenty-one .

Conditions – The pr e sent sale is concluded on the following terms and conditions, which Mr [S.] undertakes to carry out fully and faithfully . 1 o He shall take the property sold to him in its current state without any right of action against the vendors on any ground whatsoever , and without any guar antee as to the area indicated above, any diff e rence – whether more or less – being to his advantage or disadvantage even if it exceeds one twentieth . 2 o He shall bear the burden of any apparent or non-apparent, continued or discontinued, negative easements , whether established by agreemen t or by law , that may encumber the property sold or positive easements , if any , all at his own individual risk without any right of action against the vendors and without anyone acquiring more rights by virtue of the present clause than would ac crue to them under any property title or by law , but on the contrary without the pr e sent clause interfering with the rights in favour of the purchaser resulting from the Act of 23 March eight een hundred and fifty-five . M r [A.] d e clare s that by a decision of the Prefect of Morbihan date d twenty-fifth September nine teen hundred and nine and by another decision d ate d twenty-fifth August nine teen hundred and eleven , he acquired at the place known as Pen-er-men a stretch of land measuring three hundred and thirty-three square metres ninety-eight square d e cim e tres, registered in the land register of the m unicipality of Arradon under section number 137 for the purpose of building a dyke with a steel ramp measuring four metres by four metres . This land was granted to him on the express condition that the dyke be accessible to the public and in consideration of an annual fee of thirty francs and forty centimes subject to review every five years . Accordingly, M r [A.] hereby assigns all his rights relating to this stretch of land to the purchaser together with all structures erected by the vendor thereo n and declares that there is no other positive or negative easement ... ”

The applicants ’ mother acquired from her aunt M., S. ’ s widow , by inter-vivos gift drawn up before a notary and published in the Vannes Mortgage Registry on 12 November 1945, a dwelling house built on the above-mentioned dyke : “ ... hereby donates ... the property belonging to her in the m unicipality of Arradon and called the Isl e of Irus ” .

By a series of decisions issued, inter alia , on 6 June 1951, 29 March 1967, 21 December 1977, 27 August 1984 and 10 July 1986, the Prefect of Morbihan authorised occupation of the dyke in question in consideration of payment of a fee . The decision of 1967 refers to renewal of the decision of 1951 aut horising o ccupation of a dyke ; those of 1984 and 1986 refer to the dyke and house . The prefect ’ s decision of 10 July 1986 did not authorise occupation of the public property beyond 31 December 1990. The decisions stated that “ the authorities reserve the right to modify or withdraw the aut h orisation should they deem it necessary, on any ground whatsoever , without the permittee thereby acquiring any right to claim any compensation or damages 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 . S hould he fail to comply with that obligation , the authorities shall do so of their own motion and at his expense” .

In the meantime, i n 1966, the Department of Revenue from State Lands had written to the director of the State L ands D epartment in V annes in the following terms :

“You have submitted to me for observations and opinion a request for renewal of temporary occup ation of maritime public property made by [the applicants ’ mother] . This request concerns a dyke of a surface area of 333 . 98 sq. m, reduced to a taxable surface area of 304 sq. m, on which a dwelling house has been built . The annu al fee proposed by the Highways Authority is 100 francs. The case gives rise to the following observations: Article R 56 of the Code of State Property provides that any fee payable to the Treasury Department must take into account the advantages of any kind procured to the concessionaire . In the aforementioned case , there is no doubt that the concession of the dyke in question procure s a not inconsiderable a d vantage to the applicant : in particular, it allows her to save on the capital that would otherwise be invested in the purchase of a building plot in the area in question ... In these circumstances I find it fully acceptable to retain a sum corresponding to the amount of interest calculated at the very reduced rate of 5% of the value of the land conceded . ... ”

On 15 March 1993 the applicants ’ mother applied to the Prefect of Morbihan for renewal of the occupancy agreement but, in a letter of 6 September 1993 , the prefect informed her that , following the entry in to force of Law no. 86-2 of 3 January 1986 on the Development, P rotection and Improvement of Coast al Areas , he was no longer able t o renew the said authorisation o n the former terms . However , having regard to the long period of occupa ncy and the applicants ’ and their mother ’ s e motional attachment to the house in question , the prefect said that he was willing to consider, exception ally, granting limited authorisation restricting use of the property to strictly personal use and prohibiting any sale or transfer of the land and house , any work thereon other than maintenance , and reserving an option to the State, on expiry of the authorisation , to have the property restored to its original state or to re use the buildings .

The applicants ’ mother refused the prefect ’ s of fer. By way of counterproposal, s he sought a permit to build a dyke that would be valid as a transfer of ownership under A rticle L. 64 of the Code of State Property .

On 9 March 1994 the Prefect of Morbihan rejected the applicants ’ mother ’ s request but maintained his initial offer of an occupancy agreement subject to conditions.

On 5 May 1994 the applicants ’ mother applied to the Rennes Administrative Court for the prefect ’ s de cision of 9 March 1994 rejecting her request for a permit to build a dyke to be set aside .

On 4 July 1995 the prefect informed the applicants ’ mother that he was considering dr awing up an official report recording the administrative offence of unlawful interference with the public h ighway with a view to formally establishing the unlawful occupancy of public property . That official report was drawn up on 6 September 1995 and served on the applicants ’ mother on 16 November 1995.

On 20 December 1995 the Prefect of Morbihan , on the basis of the finding of illegal occupancy of public property and in accordance with A rticle L. 28 of the Code of State Property , lodged an application with the Rennes A dministrati ve Court for an order against the applicants ’ mother to pay a fine and restore the property to its original state, that is, prior to construction of the house .

In two separate judgments delivered on 20 March 1997 , the Rennes A dministrati ve Court ruled on the application lodged by the a pplicants ’ mother on 5 May 1994 ( case no. 941509) and the application lodged by the Prefect of Morbihan on 20 December 1995 ( case no. 953516).

The mother ’ s application for the prefect ’ s decision rejecting her request for a permit to build a dyke to be set aside ( case no. 941509) was dismissed by the Rennes Admin i strative Court , which found that the de cision of 9 March 1994 had been lawful . It held that the decision did not of itself have any effect on the incorporation of the dyke and the dwelling house into ma ritime public property . I t found that the permit requested was not j ustified in the general public interest .

In case no. 953516 the Rennes Administrative Court granted the prefect ’ s application of 20 December 1995, on the following grounds :

“ ... The purpose of prosecuting someone for the administrative offence of interference with the public h ighway is to pr eserve the integrity of public property. As can be seen from the judgment delivered by the court today in case no. 41509 , the land on w hich Mrs Brosset ’ s dwelling house stands is indeed public property .

... Whilst Mrs Brosset has full title to the dwelling house occupied by her ..., the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a permit to build a dyke or another type of permit . The investigation into the facts and, in particular, the absence of any documents evidencing that a permit was granted show that the dwelling house in question was illegally built on maritime public property. Accordingly, the prefect is justified in request ing a n order against Mrs Brosset to pay a fine and restore the seashore to its or iginal state prior to the construction of the house ... This must be done within three months of s ervice of this judgment ... ”

On 11 July 1997 the two applicants, in their capacity as their mother ’ s heir after her death , lodged an appeal against the judgment delivered in case n o. 953516. On 18 July 1997 they appealed agai nst t he judgment delivered in case no. 941509.

By a judgment of 8 December 1999, the Nantes Administrative Court of Appeal decided to join the two sets of proceedings on the ground that they were connected and to dismiss the applicants ’ appeals on the following grounds :

“ ... It is not disputed that the land on which the dyke on which the house was built ... was entirely covered by water , independent of any exceptional meteorological circumstances , prior to dredging the land in order to build the dyke . It has not been established, or even alleged by the applicants moreover , that the undredged portion of this parcel of land had ever been removed from the action of the tide . The investigation shows , moreover, that the dyke is the result of land dredging carried out prior to the entry into force of the aforementioned Act of 28 November 1963 and that, as this was not done in the manner prescribed for permit s for the construction of a dyke , notwithstanding the various authorisations of temporary occupancy granted by the authorities , it has not had the effect of bringing this part of the parcel of land outside the category of maritime public property thus removed from the action of the tide . In accordance with the princip l es of inalienability and imprescriptibility of public property , the submissions by M s Triboulet and Ms Brosset-Pospisil to the effect that the house was built illeg ally but its occupancy accepted by the authorities for a very long time and even tolerated after expiry of the last authoris ation to occup y it do not affect the fact that the land is maritime public property.

... the last decision authorising temporary occupancy of the maritime public property ... expired on 31 December 1990 . In the absence, since that date, of a lawful title of occupancy , the Prefect of Morbihan is justified in requesting an order against the occ upants 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, t he applicants cannot properly rely on the number of years of occupancy of the premises or on the fact that the authorities have tolerated the continuation of that occupancy since 31 De cember 1990 and offer ed draft occupancy agreements to M s Brosset in order to regularise the situation, which, moreover, she has not taken up . ... ”

The Administrative Court of Appeal held that the o bligation to restore the site to its original state within three months of service of its judgment ( failing which the author ities would do so of their own motion , with the costs and risks to be borne by the occupants) did not cons titute a measure prohibited by Art icle 1 of P rotocol No. 1 because the rule enshrined in that provision was that no one could be deprived of their possessions except in the public interest .

On 21 February 2000 the applicants lodged an appeal on points of law against the judgment of 8 Dec emb er 1999. The Government Commissionner made the follow ing submissions :

“ ... the value in today ’ s terms of the purchase price [of the] house is 655 , 530 euros .... However, the acquisition of rights in rem is not permitted under the Act of 25 July 1994 on Natural Public Property belonging to the State ... nor were the se acquired before that Act was passed ... The appellants have not acquired any property right ... given the precarious situation of the buildings , the market value could not be established without taking account of th at essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up ...”

By a judgment delivered on 6 March 2002 the Conseil d ’ Etat d ismissed an appeal lodged by the applicants . It held that they could not rely on any right in rem over the land in question or the buildings that had been erected on it and that the obligation to restore the land to its original state without pr ior compensation was therefore not a measure prohibited by Article 1 of Protocol No. 1. It also held that the applicants could not rely on the fact that the authorities had adopted a tolerant attitude regarding the occupancy of the property in support of their submission that the y should be allowed to restore the site to the state it had been in at the time of acquisition of the house .

B. Relevant domestic law

1. Code of State Property

Article L. 28

“ Subject to authorisation being issued by the competent authority, no one may occupy any national public property o r make us e thereof over and above the right of user 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 fees in respect of which the Treasury Department has been defrauded , without prejudice to the institution of proceedings for unlawful interference with t he highway.”

Article L. 52

“ P ublic property is in alienable and imprescriptible . ”

Article L. 64

“ The State may concede on conditions it shall determine ... the right to build a dyke ... o n public o r State land ... ”

2. Law no. 63-1178 of 28 November 1963 on Maritime Public Property [codifi ed in 2006, A rticle L 2111-4 et s eq. of the C ode of Property owned by Public Bodies ]

Article 1

“S ubject to the rights of third parties , the following are part of maritime public property :

a) the soil and subsoil of t he t erritorial waters ...

b) land naturally reclaimed from the sea and , subject to any contrary provisions stipulated in a deed of concession , land that is artificially removed from the action of the tide ... ”

Article 5

“ Anyone who ... has undertaken construction work on land reserved for public facilities without lawfully granted authorisation shall be liable to a fine of between FRF 1 , 500 and FRF 1 , 500 , 000.

The court may order the de molition of illegal buildings within a period it shall determine .

On the expiry of that period , de molition may be carr ied out on the authorities ’ own motion at the expense of the wrongdoer. ”

3. L aw no. 86-2 of 3 January 1986 on the Development, P rotection and Improvement of Coast al Areas

Section 25

“ Dec isions 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 re sources . Accordingly, they shall be coordinated with , inter alia , decisions concerning neighbouring public land ... ”

Section 27

“ ... there shall be no interference with the natural state of the seashore , such as by dyk e construction ... other than for structures ... related to providing a public service or carrying out public works ... and that have been declared of pub lic interest .

However , land dredging carried out prior to the present Law shall continue to be governed by the previous legislation . ”

COMPLAINT

Relying on A rticle 6 of the Convention, the applicants complained of the disproportion ate nature of the penalty ordering them to de molish “their” house . This complaint was also the subject of questions put by the Cour t relat ing to A rticle 1 of Protocol No. 1 and A rticle 8 of the Convention.

THE LAW

A. The penalty imposed on the applicants ’ mother for unlawful interference with the h ighway and the order issued by the authorities requiring the applicants to demol ish the house, examined under A rticle 6 § 1 of the Convention and Article 1 of Protocol No. 1

1. The Government

a) Article 6

According to the Government , a penalty for unlawful interference with the h ighway could not b e regarded as a “criminal sanction ” for the purposes of Article 6 of the Convention.

The statutory basis for the rules governing the offences in question lay in the Ord inance of the Marine of 3 August 1681 read in conjunction with the provisions of the Law of 29 Floréal A n X , and not in the Criminal Code . The penalties had to be regarded as administrative , and not criminal, ones as was clear from domestic law , the case -law of the Conseil d ’ Etat (CE, 6 April 2001 SA Singer) and the case-law of the Constitutional Council (d e cision of 23 September 1987). Furthermore , over and above a prosecution intended to result in the imposition of a fine for interferen c e with the integrity of public property , which was statute-barred in the present case , the purpose of establishing an offence of unlawful interference with the h ighway was to secure the restoration of the public property in question to its former state . Accordingly , State property proceedings were aimed exclusively at repairing damage caused to public property . They did not therefore fall within the purview of the principles governing criminal law ( no negligence or criminal in tention; no deferment of sentence ; no limitation period ; no benefit of an amnesty ; no principle of discretionary prosecution ; and exemption from the non bis in idem principle ). With regard to the degree of severity of the penalty , the fact that it was a mixed one did not mean that a penalty for interference with the h ighway was a criminal sanction. The criminal aspect was limited to the prosecution and the fine of 500 French francs (FRF) in the present case, which was moreover statute-barred . Above all , the obligation to restore public property to its original state was designed to ensure that damage was repaired rather than to deter or puni sh .

Should the Court conclude that the penalty imposed in the State property proceedings was a criminal sanction , the Go vern ment considered it to be proportionate in that it was necessary for the restoration and protection of natural public property . In the alternative , the Government submitted that the proportionality of a penalty was not among the procedural guarantees afforded by A rticle 6 of the Convention.

b) Article 1 of Protocol No. 1

According to the Government , occupants of maritime public property could not lay claim to any property rights . In the present case, at the outset , the two decisions of 1909 and 1911 had not confer red a property right over the land in question, but merely revocable authorisation of temporary occupancy in consideration of a fee . Subsequently , the deed drawn up on 7 March 1921 by Mr Maigre , a notary, specified tha t “ the dyke must be a ccessible to the pu blic at all times ” and that the purchaser assigned “ all his rights relating to this concession to the purchaser together with all structures erected by the vendor thereon” . He had accordingly transferred only a temporary right of occupancy of the property conceded by the State, thus excluding any right in rem , such as a property right . Then in 1945 the inter-vivos donation of the Isle of Irus to the applicants ’ mother did not mention the existence of a building on the dyke , so could not be relied on as a property title . According to the Government, it was not until 1967 tha t the authorities discovered that a house had been illegally built there . Lastly, a series of auth o risation s to occupy the site, including the house, had been granted until 31 December 1990 . The foregoing factors showed that whilst the decisions authorising occup ancy issued in favour of the applicants ’ mother and her predecessors referred to the occupation of a dyke and later a house, they did not have the effect of recognising that any property right had vested in the successi ve occupants of the public pr operty belonging to the State . Moreover, the establishment of rights in rem over public property, which had been possible only since the Act of 25 July 1994 (A rticle L. 34-1 of the Code of State Property ), did not include natural pu blic property, but was limited to the exercise of an activity authorised by an occupa ncy title , which the applicants did not have . Lastly , the Government stated that the applicants had been fully aware of the precarious a nd re vocable nature of the decisions authorising their occupancy of maritime public property and thus of the unusual nature of their situation .

With regard to the effect of the length of time during which the applicants had occupied the site , the Government reiterated that the State was also entitled to the protection of its property . I t was therefore entitled to authorise the occupation of public property by conferring mere rights of use and enjoyment , in the same way as a landlord could grant a lease or other interest in property . Accordingly , allowing the applicants to keep a dwelling hous e on maritime public property could not amount to recognition of a right of property . The applicants could not rely on A rticle 1 of Protocol No. 1 b ecause public property was inali ena ble and imprescriptible . The fact that the authorities had accepted the occupation of the house for a long time and tolerated it even after the last decision authorising occupancy had expired did not affect the fact that the site fell within the category of public property in accordance with the principle that public property was imprescriptible . The issue as to whether the site on which the house stood was public or private property had been settled i n favour of the former solution by the domestic courts , which were well placed to assess questions of fa ct . Even supposing that the land wer e part of private S tate property and accordingly did not benefit from the pro tection of A rticle L. 52 of the C ode of State Property , the applicants could not have acquired the dyke and the house by adverse possession because the occupancy in question had not been that of an owner , but of a precarious occupant of land conceded by the State . The Gove r nment pointed out in that connection that in order to rely on a dverse possession the occupants had to have unequivocal possession , which was not the case here . In conclusion, the Government submitted that the lack of a property title precluded any claim for compensation .

In the alternative , the Government submitted that the rules governing State -owned property satisfied the condition s set forth in paragraph 2 of A rticle 1 of Protocol No. 1 in that they were part of the State ’ s right to control the use of property in accordance with the general interest . The inalienability and imprescriptibility of public property were dictated by the concern to ensure that it was direct ly and per manent ly managed for use by all citizens . The State accordingly had a duty to safeguard public property against illegal occupants by taking legal action against offenders , contesting any private use that no longer conformed to the purpose for which the land was designated or not renew ing an occupancy title . In the present case aut h orisations had been granted as long as they were compatible with the designated use of the public property : the decision of 1909 specified that the occupation requested ( to allow access to a neighbouring island belonging to the o ccupant) was granted on condition that the dyke be accessible to the public at all time s . If the presence of the house – the existence of which was discovered by the authorit i es – had been tolerated by the State from 1967, this was precisely because at that date the house had be en regarded as compatible with the designated use of the land .

The legal context ha d evolved over the pas t years with th e enactment of the “Coast al Areas ” Act of 1986 and the drive to implement an active policy of environ ment al protection . Section 27 of that Act prohibited any interference with the natural state of the seashore . The authorities had merely complied with that principle when they refused to r enew the authorisation to occupy a dwelling house for purely private use . It was the State ’ s right to implement laws that it deemed necessary to regulate the use of property in accordance with the general interest within the meaning of the seco nd paragraph of A rticle 1 of Protocol No. 1. The Govern ment considered that interference by the State to be proportionate: the house in question had been built illegally and an offer of limited authorisation to occupy it subject to conditions had been rejected .

2. The applicant s

a) Article 6

The applicants argued that the penalty imposed on them fell within the scope of A rticle 6 of the Convention and was disproportion at e . In their submission, the “ clear lack of proportion between the right brandished by the State and the respect due to private property lent itself to a finding by the Court of a violation by the State ... ” .

b) Article 1 of Protocol No. 1

The applicants stated t ha t the house had been built in 1907, a fact well known to the authorities . The villa necessarily had a status: it was immovable property that had a value, could be mortgaged etc. and the Government could not argue that it was a sort of res nullius (property of nobody) that did not fit into any legal category . The property in question was indeed private , and not State , property – with the consequences that derived from that – and amounted to a “possession” within the meaning of A rticle 1 of Protocol No. 1.

The various owners of the house had obtained a precarious occupancy agreement because it was situated on a dyke , which was no w above the highest equinoctial tide mark . The villa had been a dwelling for the applicants, just as it had been for all the previous owne rs for gene rations , and was part of their heritage . If the building was not theirs, they failed to see why they should be ordered to demolish it at their expense .

According to the applicant s, the imprescriptibility of property falling w ithin the category of pu blic property did not preclude the applicability of Protocol No. 1 . The point at issue was whether the State could properly establish an administrative offence of unlawful interference with the h ighway and compe l the owner of a lawfully acquired house that had been built a hundred years ago to demolish it at the owner ’ s expense without any compensation whatsoever . The superposition of property ( the soil belonging to the State and th e house itself belonging to them ) did not justify a de molition order with no compensation ; nor did the o ther principles governing State property . State assets were often sold , such as, for example, movable property belonging to the State , and the concept of inalienability appeared to appl y when it s u ited the State . In any event , a situation could not be allowed to develop over decades and land on which property not belong ing to the authorities had been built could not simply be conceded and then , from one day to the next, with out lawful reason , result in the institut ion of proceedings for unlawful interference with the h ighway .

The applicants added that if the State were to appropriat e the house , i t would have to compensate the owners for all the loss incurred as a result . To m aintain that a right of property granted between private parties could not be asserted against the State was tant amount to denying civil law and creating virtual ownership , which was not covered by law or any principle . Any rea son able person could see that o rdering de molition at the owner ’ s cost amounted to a straightforward expropri ati on .

The applicants denied that the State had an overriding interest in d emolishing a house that deserved to be classified as a listed building . They alleged that the State intended to recover the house for a person of its choice . In their submission, t he “ Coast al Areas ” Act did not affect the ir position because it had come into force long after the buildin gs in question had been erected and, moreover, it had never been alleged that the house failed to meet a landscape or aesthetic requirement .

3. The Cour t

The Cour t reiterate s that it ha s already found that a de molition order in respect of an illegally built house can be regarded as a “penalty” for the purposes of the Convention ( see Hamer v. Belgi um , no. 21861/03, 27 November 2007, § 60). It has thus brought such orders within the criminal head of A rticle 6 of the Convention having regard to the classification and nature of the offence under Belgian law . In the Belgian case, however, the applicant ’ s comp la int concerned a reasonable time . In the present case the applicants are complaining about the conse quences of the penalty for unlawful interference with the highway on the house of which the y claim to be the owners , and they question the “proportionality” of the “ penalty ” in question . The Cour t does not consider it necessary to de termine whether A rticle 6 of the Convention is applicable to the proceedings in question under its civil o r criminal head because it considers it more appropriate to consider the question of the proportionality of the measure under A rticle 1 of Protocol No. 1. Accordingly , the Cour t will reclassify the complaint formulated by the applicants , the question of the cons e quences of tolerance on the part of the authorities on possible pecuniary interests having given rise to a discussion before it under A rticle 1 of Protocol N o. 1 ( see Hamer , cited above , and Öneryildiz v. Tur key [GC], no. 48939/99, ECHR 2004).

In that connection the Court notes that the parties have diverging views regarding the question whether th e applicants have a “possession” within the meaning of Articl e 1 of Protocol No. 1 and thus whether that provision applies in the instant case . However, i t considers that this question, particularly whether the imprescriptibility and inalienability of maritime public property preclude the applicabilit y of A rticle 1 of Protocol No. 1, lends itself rather to an examination of the merits of the complaint under the latter provision .

As to the rest , the Cour t considers, in the light of all the arguments put forward by the parties, that the complaint raises serious issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits . It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application in admissible has been established .

B. The administrative offence of unlawful interference with the highway established against the applicants ’ mother , and the order to demolish the house issued against the applicants by the authorities , examined under A rticle 8 of the Convention

1. The Government

The Government raised an objection of inadmissib i lity on the ground that the complaint based on an alleged violation of A rticle 8 had never been raised by t he applicants before the domestic court s and did not appear in their application form . In the alternative , they argued that M s Brosset ’ s heirs could not rely on her rights under A rticle 8. They explained that under French law the right to res pect for private life should be considered as being extinguished on the death of the holder of that right .

The Government also submitted that it had not been establishe d that the applicants had elected the house in question as their home . The materials in the case file showed that they were not domicil ed in Arradon. Furthermore, they had not provided proof of strong ties with the house such that it co uld be regarded as their “home” within the meaning of A rticle 8 of the Convention.

In the alternative , the interference was in accordance with the law and pursued a legitimate aim , namely, guaranteeing everyone access to maritime public property and reinforcing this by protecti ng the natural state of the seashore with the “Coastal Areas ” Act . With regard to the necessity of the interference in a democratic society , the Government pointed out that the house had been built i llegally , albeit unbeknown to the applicants , and that they had “alternative accommodation” ( Chapman v . the United Kingdom [GC], no. 27238/95, ECHR 2001 ‑ I) as d eclared by them under “ domicile ” in the ir application form . Moreover , the Prefect of Morbihan had attempted to reconcile the social need to protect maritime public property and the coastline from illegal construction w ith Ms Brosset ’ s legitimate attachment to the house of Pen ar Men by offering to allow her to use the parcel of land in question for a purpose other than that for which it had been designated; s he had refused , however. The conduct of the authorities had therefore been proportionate to the aim pursued .

2. The applicant s

The applicants disputed the de finition of home give n by the Government . They stated that the house in question, although not the ir only reside nce , was occupied several months per year by their families, who were very attached to the place . The house was perfectly and regularly maintained , full of objects and possessions that were a daily testimony to its historical and family past and could be regarded as their “home” within the meaning of A rticle 8 of the Convention.

The applicants also submitted that th e interference was not justified . The “C oast al Areas ” Act was not infringed as long as the toll path was maintained and freely passable . The requirement to restore the land was not binding since the house had never been destroyed by the authorities . It was part of the national cultural heritage and was perfectly i ntegrated into the landscape .

3. The Cour t

The Cour t reiterates that the proceedings instituted by their mother and then by the applicants before the domestic courts concerned the court judgment ordering them to restore the seashore to the state it had been in prior to the erection of t he house occupied by them and the Prefect ’ s refusal to grant a permit to build a dyke on the parcel of land on which the house stands . These factors are sufficient to consid er that the case concerned the right to respect for one ’ s “ home ” , a t least in substance, in the proceedings before the domestic courts .

T he Court reiterates that it is master of the characterisation to be given in law to the facts of the case and that it does not consider itself bound by the characterisation given by an applicant or a government . By virtue of the jura novit curia principle, it has considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it. In other words, a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on ( see Guerra and Others v . Ital y , judgment of 19 February 1998, Re ports of Judgments and De cisions 1998-I, p. 223, § 44, and Berktay v . Tur key , no. 22493/93, § 168, 1 March 2001).

Consequently , the Government ’ s plea of inadmissibility must be dismissed .

As to the rest, the Cour t considers , in the light of all the arguments submitted by the parties, that the complaint raises serious questions of fact and law that cannot be resolved at this stage of the examination of the application but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of A rticle 35 § 3 of the Convention. No other ground for declaring the application in admissible has been established.

For these reasons, the Court unanimously

Declares the application admissible under Article 1 of Protocol No. 1 and Article 8 of the Convention , without prejudging the merits of the case .