Eviction of an occupier
Assisting with the eviction of an unauthorised occupier is a complex process.
Maître Zakine's office can help you in the Alpes Maritimes department. Maître Zakine knows perfectly well human rights and defends them with pugnacity and determination.
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Article on the subject
The eviction of an occupier without right or title validated by the Court of Cassation in the light of Article 8 of the European Convention on Human Rights
About the decision of the 3rd Civil Chamber of the Court of Cassation of 04 July 2019
As a reminder, Article 8 of the European Convention on Human Rights protects the right to privacy. right to privacy and family, which includes the right to respect for one's home (and even the professional home such as the office or chambers of a member of a liberal profession (ECHR, Buck v. Germany, § 31; ECHR, Niemietz v. Germany, §§ 29-31).
Article 8 seeks to protect the individual from arbitrary interference with the exercise of his or her right to respect for private and family life, home and correspondence.
While this provision protects individuals against interference by the public authorities, it also implies, under Article 8(2) of the Convention, the adoption of measures by the State to guarantee the right to freedom of expression. right to respect of "domicile" (ECHR, Novosseletski v. Ukraine, § 68).
Public authorities must respect and enforce the rights of owners.
For example, the failure of the national authorities to enforce an eviction order from a flat for the benefit of the owner has been held to constitute a breach of the State's positive obligations under Article 8 (ECHR, Pibernik v. Croatia, § 70).
In this sense, the European Court of rights The European Court of Human Rights has already ruled that continuing to occupy a private individual's property in disregard of an enforceable eviction order issued by a court that has found the occupation in question to be unlawful breaches Article 8 (ECHR, Khamidov v. Russia, § 145).
In this case, the owners sued for eviction of several people who were illegally occupying their land. The trial judges granted their request but the occupants decided to appeal to the Supreme Court.
The Court of Cassation confirmed the decision of the Montpellier Court of Appeal of 19 October 2017 in the following terms:
"But whereas, since eviction is the only measure likely to enable the owner to recover the full extent of his right to the unlawfully occupied property, the resulting interference with the occupant's right to respect for his home, protected by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, cannot be disproportionate to the seriousness of the infringement of the right of ownership; having rightly held that, since the right of ownership is absolute, any occupation without right or title of another's property constitutes a manifestly unlawful disturbance allowing the owners to obtain in summary proceedings the eviction of the occupants.
The Court thus ruled in favour of the owners so that they could recover their full rights over their property, without this being disproportionate with regard to the right to respect for private property. privacy.
Invalidating an eviction procedure initiated against persons who were illegitimately occupying a property, when this procedure had been strictly respected, would have constituted a violation of Article 8 of the European Court of Human Rights requiring Member States to enforce an owner's right to his property.
The provisions of Article 8 of the European Court of Human Rights lead the judges to balance divergent interests: the right to housing of the most deprived people, even when they are occupants without right or title, against the right of ownership, and the right to respect for private and family life against the right of ownership.
In this case, the Court of Cassation, following the example of the European Court of Human Rights, made a decision by taking care not to infringe in a disproportionate way the rights to respect for the private life of the occupants without right or title, but at the same time by showing itself to be the guarantor of the property rights of the legitimate owners.
Moreover, as soon as fundamental rights and freedoms are at stake, the Judges start a balancing act like tightrope walkers.
It is crucial that the lawyer incorporates the provisions of the European Convention on Human Rights into his or her writing and makes use of the judgments of the European Court of Human Rights which are particularly instructive.
I have a postgraduate degree in European and international law and I do not hesitate to enrich my writing with European and international law.