Volume 9, 2024

Dismantling of construction – between the public interest and the social need

Visiting Professor Emilia Mădulărescu, Faculty of Law, Bucharest University of Economic Studies

Abstract: In the context of a growing dynamism of social relations and the need for the right to evolve at the same pace as the development of society, one of the acute problems is to solve those situations arising from an initial failure, culpable or not, to comply with a rule of law. This is the case for constructions built on the private domain of natural or legal persons, without a building permit. The current normative provisions establish not only the possibility of their authorisation post factum, but also the right of the authority that finds the violation of the legislation of the construction discipline to request their abolition. However, the internal rules shall be interpreted by reference to the protection conferred by Article 8 of the European Convention on Human Rights (in terms of protecting the right to home/housing), respectively, by Article 1 of Protocol 1 of the same Convention, on the protection of property.

At the same time, we note the evolution of the case-law of the European Court of Human Rights, which recognised the prevalence of elements of environmental protection, from which a wide category of citizens benefit, to the detriment of individual rights, with certain limitations only as regards the very substance of the right to property.

At the internal level, through legislative and judicial amendments, we find a transposition of the elements of European law, including the objective of safeguarding the construction, if it complies with the “fund” requirements, i.e. environmental requirements, quality in construction, etc. The draft urban planning code is clearer in this respect, introducing novelties, such as the regularisation permit (for certain types of construction, small scale) and special regulations in the case of constructions whose authorisation has been annulled.

Keywords: Law 50/1991, construction without authorisation, the Urban Planning Code, environmental law, the right to home.

DOI: 10.24818/RCLR/2024/9.04

I. Introduction

The European Convention on Human Rights applies primarily in national law, as is clear from Articles 11 (2) and 20 of the Romanian Constitution². For that purpose, the national court must refer not only to the provisions of domestic law and EU law, but also to the provisions and case-law of the European Court of Human Rights.

In this article, I propose to analyse the situation of buildings constructed on private property without a building permit. I shall analyse the current legislation, referring to the points of the case-law of the ECHR, and then compare the existing situation with the proposals made by the draft Planning Code (which I advocate in the version adopted by the Senate).

At the legislative level, currently, in accordance with Article 32 (1) of Law No 50/1991 on authorisation to carry out construction³work, if the persons penalised for the infringement have stopped carrying out the works but have not complied within the time-limits with those ordered in the record of the finding of the infringement, in accordance with the provisions of Article 28 (1), the body which imposed the penalty brings the matter before the courts to order, where appropriate: (a) the management of the work in the permit provisions; (b) the dismantling of unlawful constructions. Without going into the detail of the legal nature of the dismantling measure⁴, I consider, like the abovementioned opinion⁵, that it constitutes both an additional penalty for administrative offences and a statutory limit on the exercise of the right to private property. This article should be read in this second dimension of the measure relating to the abolition of buildings.

Furthermore, in the event that the party’s liability for administrative offences can no longer be incurred by reason of the intervention of the limitation period, can the demolition of the illegally constructed buildings still be sought? Or does the fact that the applicant is unable to obtain imprisonment for his right to property and cannot therefore rely on the question of the exercise of all legal attributes constitute the only penalty? The legislature referred that question, with the result that, with effect from 11 January 2020, by means of Article II (14) of Law No 7/2020⁶ amending and supplementing Law No 10/1995 on the quality of the building and amending and supplementing Law No 50/1991 on authorisation to carry out construction works, an additional system of regular entry was introduced into the body of Law No 50/1991 by adding a new thesis to Article 37 (6), not in the form of the issue of a post-factum building permit, but in the form of direct registration of those buildings without authorisation or reception, on the basis of a certificate/certificate relating to the construction of construction, issued on the basis of an expert report and land registry⁷documentation. Thus, "(...) in the case of buildings for which the work has been carried out without a building permit and the expiry of the limitation period provided for in Article 31 no longer allows penalties to be applied, the certificate of attestation/certificate relating to the construction of the building will be issued/issued on the basis of a technical expert’s report on compliance with the basic quality requirements applicable in the buildings, including the framework in the approved town planning regulations, confirming the current situation of the buildings and compliance with the relevant provisions and land registry documentation. If the technical expert’s report finds that not all the basic requirements and requirements relating to classification in the town planning regulations have been met, the certificate/certificate of construction of the building is not issued.

As a preliminary point, I note that, in practice, we find it applicable and, as a general rule, competing, the public interest, expressed by the need to comply with building standards (qualitative, aesthetic, architectural unitary, etc.) and the private interest of the beneficiary. The emphasis is, in my view, to the substance of the situation, in the sense that the current legislation (Law No. 50/1991) enshrines the mechanism of legal entry, that is to say, protection of economic value, where the quality requirements in construction, lato sensu, are met, and the only element lacking is a document recording that evidence. In that regard, I refer to the provisions of the first sentence of Article 28 (2) of Law No. 50/1991: “The decision to maintain or dismantle buildings carried out without a building permit or in breach of the requirements of that permit shall be taken by the competent public authority, on the basis of urban development plans and related regulations, informed and approved under the conditions laid down by law or, as the case may be, by the court” and Article⁸ 59 of the Implementing Rules for Law No 50/1991.⁹ I consider that the analysis that the national court is required to carry out in the case of applications for demolition of buildings which do not have a building permit must also have regard to the factors arising from the ECHR, taking into account the specific nature of each situation.

In this article, we are directly related to the content of the decisions of the ECHR, taking the view that the nuances intended to facilitate the understanding of the ECHR as regards the balance between the public interest and the private interest in the particular circumstances of this article may therefore be distanced.

The abolition of illegally constructed buildings has been analysed by the ECtHR in the light of several articles of the Convention. If Article 1 of Protocol No. 1 is traditionally invoked, demolition is considered to be a regulation of the use of goods (Ivanova and Cherkezov v. Bulgaria, paragraph 69¹⁰), we find incidents and other rights protected by the Convention. As I shall explain below, in the event that the construction constructed without authorisation represents the ‘family home’, we find the protection of the right to home, governed by Article 8 of the ECHR. In other situations, the measure that dissolves the infringements constitutes a penalty, being analysed in the light of the provisions of Article 6 of the ECHR, including where criminal liability is not applicable (Hamer v. Belgium¹¹, § § 59-60) or Article 7 ECHR (SUD Fondi SRL and Others v. Italy¹²).

I consider that reliance on rights of defence by the party sued as defendant in the claims seeking the demolition of unlawful construction of the provisions of Article 8 of the ECHR or of Article 1 of the Protocol to that convention makes it necessary, in its reasoning, for the national court to analyse the substance of the applicability of those articles, with the result that the dispute is decided accordingly.

II. Abolition of construction and right to home – Article 8 ECHR

In Ivanova and Cherkezov v. Bulgaria, the ECHR held, from a factual point of view, that, although only one of the applicants had legal rights to the house, the two applicants had lived there for a number of years, so that that dwelling is their home (broader concept than the usual meaning of Romanian, the closest concept being ”family home” .

The infringement of the right of residence was provided for by law and pursued a legitimate aim, the restoration of the legal system.

Examining the third condition, whether the measure is necessary in a democratic society, that is to say, the proportionality of the measure, the Court notes that the proportionality between the measure of loss of a person’s housing and the requirement to protect the public interest requires not only an examination of the substance but also of the procedure, that is to say, whether it is in a position also to protect the interests referred to in Article 8 of the ECHR for individuals.

Since the loss of accommodation is an extreme form of allocation of the right to home, any person who risks such a situation, whether or not he is a member of a vulnerable group, must benefit from an examination of the proportionality of the measure by an independent tribunal, in accordance with the principles flowing from Article 8 of the ECHR.

The ECHR lists the criteria to be taken into account in the case of illegally constructed buildings: if residence has been established unlawfully, if the persons concerned have done so in full knowledge of the facts, what is the nature and seriousness of the offence committed, what is the precise nature of the interest to be protected by the demolition of construction, and whether the persons affected by the demolition have another variant where they live (suitable accommodation). Similarly, if there are less drastic variants to regularise the situation. The list of factors to be examined by the national court is non-exhaustive. That is why, if the person challenges the proportionality of the measure, with arguments such as those set out above, the court must examine them carefully and give reasons for them. Infringement of the law cannot normally be regarded as proportionate merely because the situation is based on a provision formulated in general and absolute terms. That is why the mere fact that a court examines the decision (administrative authority in this case) that led to the loss of home is not sufficient. It is necessary that the party can effectively challenge the authority’s decision in the light of its disproportionate nature in relation to the personal situation in question. Naturally, if, in such proceedings, national courts take into account all relevant factors and balance competing interests, taking into account the principles above, the margin of discretion of those courts is a broad margin of discretion to recognise that national courts are better placed towards an international court to assess local needs and conditions, so that the ECHR will be reluctant to cast doubt on their reasoning.

The European Court disagrees with the reasoning of certain Bulgarian courts, in the sense that the balance between the rights of those who are prepared to lose their domicile and the public interest in ensuring effective implementation of the rules on the construction of buildings may, as a general rule, be duly achieved by means of an absolute rule which does not allow exceptions.

The Court notes that such an approach on the part of the State may be justified in the light of Article 1 of Protocol No 1, which confers on the national authorities a broad discretion in the way in which they choose to deal with the situation of illegal constructions. Given, however, that respect for the right to home, protected by Article 8 of the ECHR, is closely linked to elements of central importance for the physical and mental integrity of the person, the maintenance of relations with others, and the maintenance of a seated, stable and safe space in the community, the assessment of proportionality if the interference lies in the loss of a person’s sole dwelling is different, giving particular importance to the analysis of the extent of the intrusion into the sphere of personal life of the persons affected. This usually requires a case-by-case analysis.

The Court notes that there is no evidence that the Bulgarian legislation has actively taken that balance into account; legislation at general level does not include targeted solutions which take account of the protection of the rights provided for in Article 8 of the ECHR.

The Court rejected the Bulgarian State’s defence to the effect that the possibility for those who have made unlawful constructions to rely on the challenge would seriously undermine the system of discipline in respect of construction in Bulgaria; it noted that it is true that exceptions to an absolute rule may create a risk of abuse, uncertainty or arbitrariness, but that public authorities and courts are able to address those risks. On the contrary, as the ECHR argues, it is only in exceptional cases that litigants will succeed in maintaining that the demolition measure is disproportionate in their case¹³.

Applying the criteria established by the case-law above, it appears, in the first place, that, in order for the protection provided for by Article 8 of the ECHR to apply, it is necessary to prove that the property actually represents the (sole) family home, that it resides by its holder and the members of his family. Second, account must be taken of the behaviour of the beneficiary and what are the consequences of maintaining/demolishing the construction. Similarly, taking the view that it is necessary for there to be proportionality between the conduct of the public authority, on the one hand, of the author of the building, on the other, as a condition sine qua non for the maintenance of the construction, I consider that it is imperative that the owner of the building should leave the passivity and that it should actually and actually begin the necessary steps to become lawful¹⁴.

The question arises, however, as to what happens in the event that the request for demolition of the buildings is rejected, having regard also to the fact that the beneficiary submitted documents for the grant of the building permit, but that, subsequently, the building permit is not issued because of the applicant’s failure to comply with his obligations. Can a new request for demolition of buildings be submitted? Can the party’s conduct in relation to the first procedural cycle and the period after the conclusion of the first instance and the submission of the following application for a writ be taken into account?

III. The right to property

Article 1 of Protocol No. 1 to the European Convention on Human Rights provides that:

“(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.

(2) 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.’ In examining the applicability of Article 1 of Protocol No. 1 to the situation under consideration, namely the existence of an unlawful (unauthorised) construction, I consider that the first is not whether the applicant possesses ‘property’, which is an autonomous concept developed by case-law. The concept of ‘property’ within the meaning of Article 1 of Protocol No. 1 includes both ‘existing assets’ and assets, including claims, which the applicant may claim to have, at the very least, a ‘legitimate expectation’ that they will be established. The above clarification is relevant since the inclusion in this category of “legitimate expectations” was made by Pine Valley Developments Ltd and Others v. Ireland¹⁵. In that case, the applicant company had acquired land (in order to build there), for which planning permission had been granted, on behalf of the former owner (the vendor). Given that, at the time of acquisition of the land, the planning permission was entered in the public authority’s pleadings and could no longer be revoked, the Court held that, when Pine Valley had acquired the land, it had done so on the basis of the planning permission which had been duly entered in a public register maintained for that purpose and that it was perfectly entitled to regard it as valid. That planning permission amounted to a favourable decision on the proposed development principle, which could not be revoked by the planning authority. In these circumstances, the ECHR considers that it would be unjustified to consider that the decision of the Irish Supreme Court (which annulled that planning permission, my note) did not constitute an interference with the applicant’s right to property. Pending a ruling, the applicant had, at the very least, a legitimate expectation of being able to complete the proposed development and must be regarded, within the meaning of Article 1 of Protocol No 1, as part of the part of the property (of the right of ownership of the property) concerned (see, mutatis mutandis, the judgment in Fredin of 18 February 1991, Seria A No 192, p. 14, paragraph40¹⁶).

Similarly, in Hamer v. Belgium, we find the case of a construction carried out without authorisation, which was used by the beneficiary for 27 years before the State authorities found the illegality, which had been mentioned in the tax registers and for which the tax was paid, and then a further 10 years during which the authorities remained passive. The Court found that the applicant’s financial interest in the use of the dwelling (holiday home) in question, for which she and her father (father) had paid the tax, had been sufficiently clear to constitute a substantive right and, therefore, a ‘property’.

Similarly, in Keriman Tekin and Others v. Türkiye¹⁷, the applicants have a ‘property’, consisting of an edified building without any building permit, which they used for a long period of time (7 years). In this case, we find the situation in which the applicants constructed a construction, without authorisation, in 1997, on land belonging to the applicants, a construction registered in the land register and referred to in the title of ownership of the appellants’ land. At no time did the State question the legality of the construction. The Court also held that there was no building permit in that area¹⁸.

What is penalised is the passivity of the authority and even of the other natural or legal persons affected by the situation of unlawful development, conduct which gives rise to a right on the part of the applicant, in the light of the provisions of Article 1 of Protocol No 1 to the ECHR.

The existence of a ‘good/legitimate expectation’ in the applicant’s assets renders the provisions of Article 1 of Protocol No 1 to the ECHR applicable, but does not necessarily confer on him the right to maintain unauthorised constructions.

As a general rule, the case of irregular construction has been analysed in the light of the provisions of Article 1 (2) of Protocol No 1, which has been interpreted by the case-law of the European Court of Human Rights as meaning that the Member States have a wide margin of discretion in deciding both on the definition of the public interest and on the choice of the specific arrangements for its implementation. The Commission considered that, in urban development matters, the restrictions imposed on an owner to use land situated in a residential area for the installation of a mechanical repair workshop (Case No 11723/1985, Chater v. Great Britain, 7.5.1987) or the adoption of an area development plan limiting the right to build types of buildings other than those provided for in that plan (Case No. 11309/1984 Jacobsson v. Sweden, 8.3.1988) constituted the use of property in the public interest.

Just like the algorithm, after establishing the applicability of the ECHR rule (in the present case, there was a good, as I have explained above, and an interference with that property), the conditions for the interference to be provided for by law, for it to pursue a legitimate aim and to be proportionate, are examined in turn.

Returning to the provisions of Article 32 ((1)) of Law No 50/1991 on authorisation to carry out construction work, I consider that the requirements of statutory provision and the pursuit of a legitimate aim are met, while remaining to assess whether there is a fair balance between the requirements of the general interest of the community and the need to protect the fundamental rights of the individual¹⁹.

That analysis must be carried out on a case-by-case basis, specifically identifying both the general interest of the community and the impact on the individual’s rights, in the present case, on his right to property. I shall therefore present some examples of the case-law of the ECtHR:

The infringement of the applicants’ right to property by the demolition decision without compensation of a building constructed without authorisation in a non-constructable forest area is proportionate to the legitimate objective of environmental protection (Hamer v. Belgium).

Similarly, the decision to demolish residential accommodation without authorisation which has been found to be unlawful and which has been challenged from the start of the works complies with the requirements of a fair balance required by Article 1 of Protocol No 1 (Tiryakioğlu v. Türkiye²⁰, inadmissibility decision, 13 May 2008).

Furthermore, in Oneryildiz v. Türkiye²¹, which concerned the destruction, following the explosion of a public industrial site, of mahala built without authorisation and occupied without title by the applicant, the Court concluded that there had been a breach (lack of proportionality) of the right to respect for property, in view of the authorities’ tolerance of illegal construction and the fact that the uncertainty created by those authorities within the Turkish company as to the application of laws reinstating illegal agglomerations was not such as to lead the applicant to believe that the situation relating to his accommodation was liable to change from one day to another²².

IV. Property and protection of the environment

The European Convention on Human Rights does not contain any actual provision relating to the protection of the environment, but it is analysed, indirectly, in relation to other rights enshrined in the Convention, such as the right to life (Article 2), the right to respect for private and family life and home (Article 8), the right to property (Article 1 of Protocol No. 1). What is of interest to us, but, faced with the issue of the present article, it is that the protection of the quality of the environment is equated by the ECtHR with the safeguarding of a general interest.

In this regard, it is stated in the case-law of the Court that ‘no one may challenge the legitimacy of State policies intended to protect the environment, since they are also guaranteed and defended in respect of human well-being and health (GIEM and Others divide Italy²³, Application nr.1828/06 and 2 other requests, 28 June 2018, paragraph 95²⁴).

In other cases, the priority of environmental protection is affirmed much more clearly and categorically by the European court. In general, in Hamer v. Belgium, it seems 79 that the European Court, while recalling that none of the articles of the Convention contains a right relating to environmental protection as such²⁵, states that “in current society, environmental protection is an increasingly important issue. The environment is a cause of which the defence gives rise to the constant and supported public interest and, consequently, public authorities. Financial imperatives, or even certain fundamental rights, such as the right to property, should not take precedence over environmental considerations, in particular where the State has legislated in that regard. Consequently, public authorities assume a responsibility which should, in practice, lead to their intervention at the appropriate time in order to ensure that the statutory provisions adopted for the protection of the environment are not entirely ineffective”.

The Court reiterates that restrictions on the right to property with regard to the protection of the environment are permissible, provided, however, that a fair balance is maintained between the collective and individual interests involved.²⁶ In the case above, Hamer v. Belgium, the Court considers that the demolition of construction carried out in a forest area with a prohibition on construction complies with the requirement of proportionality. Elements such as the use of the dwelling by the applicant and her parents for 37 years, the fact that they paid taxes on it, were connected to the water supply network, which means that the authorities were in a position to know the facts, but also the fact that the land did not have the status of owner of the land at the time of construction, that liability was not subject to any limitation period, and that the national legislation did not allow the construction built in the wooded area to be preserved. In that case, although the Court finds that the State authorities have contributed to perpetuating a situation detrimental to the protection of the wooded area, the fact remains that, in the present case, there is only ‘implied consent’ on the part of the authorities [rather assumed, my note], since the house concerned was lifted without authorisation by the applicant’s parents, the requirement of proportionality is complied with.

Irrespective of the objective pursued, the conduct of the public authorities plays an essential role in the assessment of proportionality. In N.A. and Others v. Türkiye,²⁷ where it was found that there had been an infringement of Article 1 of Protocol No 1, noted that the property of the applicants had been registered in the land register, the interested parties had obtained from the Ministry of Culture and Tourism a tourist investment certificate for the construction of a hotel, and the Planning Agency had granted them an investment incentive for the construction of a hotel²⁸.

In national law, the case-law²⁹ of the HCCJ has used the reference to the provisions of Article 1 of Protocol No 1, stating, for example, that: ‘97. The analysis carried out by the competent authority must operate by way of exclusion; that is to say, it should be able to refuse to grant planning permission for legal purposes only where the framework for construction carried out within the pre-existing urban development framework is absolutely impossible and the authority indicates on an ad hoc basis on which aspects the works are not covered by the approved urban development plans, so as to safeguard the principle of the protection of the right to property in accordance with the case-law of the European Court of Human Rights and Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which then results in the priority of the objective of protecting the building over the counterproductive measure... Provided that the works satisfy the planning, environmental, quality and safety requirements under construction laid down by the standards in force, the public interest not being affected, the definitive blocking of legality is not a constructive solution’.

I consider that the current legislation meets the requirements of the ECHR, subject to its interpretation in the light of the ECHR.

In line with the objectives pursued by the European Court of ensuring a fair balance between the public interest and individual needs, the High Court of Cassation and Justice ruled, for example, by judgment No 16 of 20 July 2020³⁰ (The action in the interests of the law), establishing that the limitation period for administrative offences laid down in Article 26 (1) (a), law No 50/1991, republished, consisting of the execution, without a building permit, of a construction including all the structural elements necessary to be regarded as completed on the date on which the administrative infringement was found to have been committed, runs from the actual end of construction. The restrictive interpretation of Article 26 (1) (a) reflects the requirement of active conduct on the part of the authorities, since they can no longer rely on the refusal to participate for the purpose of accepting construction works in order to perpetuate their right to find and penalise an administrative offence of construction, with all the consequences flowing therefrom.

The High Court was particularly explicit in the recitals of Decision No. 10 of 28 June 2021, to which I have previously referred. Similarly, the solution adopted, to the effect that ‘In the uniform interpretation and application of the provisions of Article 28 of Law No 50/1991 authorising the execution of construction works, republished, as subsequently amended and supplemented, where the party has not commenced or has not completed, within the prescribed period, the legal commencement procedure and the authority has not obtained a demolition order in respect of the construction, the time-limit set in the record of the finding of the infringement is a concern for recommendation’ reflects the same concern to safeguard the buildings carried out, having regard to the conduct of the parties concerned and the factual reality of the failure to comply with the time limits laid down by law for examining building permit applications.

The decision of the ICCJ – examined to hear the appeal in the legitimate interest – No 13 of 8 April 2019³¹, according to which the absence of a building permit or the failure to comply with its provisions, as well as the absence of minutes of acceptance at the end of the works, constitute obstacles to the judicial recognition, in the context of the action for a declaration, of ownership of a construction carried out by the owner of the land using his own materials.” In its preamble, it provided a number of clarifications as to the fate of the buildings constructed without authorisation in the light of temporal criteria. That decision was followed by the intervention of the legislature, by Law No 7/2020³², which I analysed in the initial part of this article. ³³

V. Draft of the Planning Code

In view of the multiplicity of normative acts governing urban development, it is now being tempted to adopt an urban planning code, the project being through the Senate and to be discussed by the Chamber of Deputies. In the draft Planning Code, as adopted by the Senate³⁴, we find a number of provisions which are permanent but also new. Thus, Article 369 provides:

1.A supervisory body which has sanctioned an offence for carrying out construction work without authorisation or in breach of its provisions, in addition to stopping the works, is under an obligation to order that the measures necessary to:

(a) management of the works in the provisions of the building permit;

(b) obtaining a regularisation authorisation for works carried out without a building permit only if they fall within the scope of the approved planning regulations and if they meet the basic quality requirements of the buildings referred to in Article 398.³⁵ (c) the discontinuance of works carried out without a building permit where they are not covered by the approved planning regulations and/or does not comply with the basic quality requirements of the building referred to in Article 398.

(2) for the purposes of complying with the requirements of subsection (1), it is for the regulatory body at the level of the local public authorities, which is competent to issue a building/cancellation permit, to examine how the construction corresponds to the requirements of the approved town planning documents for the site area, ordering, where appropriate, the maintenance or removal of buildings constructed without authorisation or in breach of the requirements of that permit.

3.If the persons subject to administrative penalties have not complied with those ordered by the record of the finding of an administrative offence, the adoption of measures classifying the works in the requirements of the permit or termination of work carried out without authorisation, or in breach of the requirements thereof, the body which imposed the penalty shall, within the period laid down in the record of the finding of an administrative infringement, refer the matter to the courts for an order, where appropriate:

(a) the management of the work in the permit provisions;

(b) the dismantling of the buildings carried out unlawfully.

(4) if the application is granted, the court shall prescribe the time-limits for the implementation of the measures referred to in paragraph (3).

(5) in the event of failure to comply with the time limits laid down, the measures ordered by the court in accordance with the provisions of subsection (3) shall be brought to an end by the mayor or President of the Departmental Council, with the costs to be borne by the guilty persons.

(6) where infringements of the authorisation scheme in accordance with Article 366 have been committed, the supervisory bodies may request the judicial authorities to order the measures referred to in paragraph (1).

(7) the competent supervisory authorities, according to the law, ask the authorities responsible for the criminal prosecution and, where appropriate, the court, to order the temporary cessation of the work throughout the criminal proceedings.

(8) persons who received the housing subsidy and for whom the measure referred to in paragraph (1) (b) has been ordered shall repay the subsidies received, in return for payment of statutory interest for the period during which they used them.

(9) the provisions of this Article shall not apply to transport infrastructure works.

The legislature regulates separately, in Article 375, the situation of buildings carried out under an annulled building permit, a situation regarded as charitable in legal literature³⁶:

1.In the case of buildings carried out in the context of a building permit which has been annulled by the court, the court may, at the request of the holder of the annulled building permit, order the continuation of the buildings carried out if they have been constructed in accordance with the applicable legal provisions and town-planning regulations and meet the basic quality requirements of the building.

(2) with a view to maintaining the buildings constructed under subsection (1), the court shall, of its own motion or at the request of the party concerned, order that a specialised technical expert’s report be carried out, in accordance with the conditions laid down by law, for the purposes of determining compliance with the applicable laws and regulations.

I note that the provisions of the draft Planning Code go to the same idea of safeguarding buildings. In addition, they take account of the criteria listed by the ECtHR in its case-law on the requirement of a fair balance, an example to that effect being the introduction of authorisation for regularisation. This act is governed by Article 311 of the draft. The starting point is that of carrying out works in breach of the building permit or without such authorisation (as is apparent from a combined reading of Article 311 and Article 369). The regularisation authorisation may be issued only in respect of buildings operating on single-family dwellings whose height P or P + floor regime, with a maximum surface area of 150 m², which are not historic monuments and which are situated outside the protection zones for historical monuments or protected areas, in the case of annexes, to housing, household annexes or annexes to farms with a maximum area of 150 m² and for pace closing works without extension in the public domain.

The special protection granted to the environment is apparent from the provision that regularisation permission is to be issued by the public authority responsible for also issuing a building permit only if the conditions imposed by the special legislation on environmental protection are met cumulatively, the basic requirements applicable to construction works, the specific requirements of the institutions of the National Defence System, public order and national security, and the applicable town-planning rules have been complied with.

Conclusions

The State’s margin of discretion is different from the rights safeguarded by the ECHR: although, in the case of the right to property, protected by Article 1 of Protocol No. 1, the State enjoys a wide margin of appreciation as to how to regulate construction situations without authorisation, in the case of Article 8 ECHR, in the component of the right to home, that margin is less, since the Court requires that the party must actually have access to the examination of its particular situation, including in the light of the criteria mentioned in Ivanova and Cherkezov v. Bulgaria, by an independent tribunal.

I note the paramount importance attached to the elements relating to environmental protection and sustainable development, also highlighted in the draft Planning Code.

At the same time, the activity of the High Court reflects, in my view, the concern to ensure the stability of civil law, to eliminate, as far as possible, the state of uncertainty and the indefinite carry-over, with the result that the legal position of buildings is clarified. In essence, the supreme court, beyond the application of the requirements of European case-law, manifests, in a welcome manner, the concern to establish the law in social reality, with the actual purpose of resolving specific problems.

References

• Hamer v. Belgium, paragraph 80, Fotopoulou v. Greece, Application No 66725/01, 18 November 2004, https://hudoc.exec.coe.int/eng#{%22execdocumenttype collection%22:[%22CEC%22],%22execappno%22:[%2266725/01%22)
• Băișanu Florin Ioan – Dual legal nature of the measures provided for in Article 28 of Law No 50/1991 on authorising the execution of construction works (Dubla natură juridică a măsurilor prevăzute de art. 28 din legea nr. 50/1991 privind autorizarea executării lucrărilor de construcții), in Curierul judiciar No 9/2023
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