A.J.D.A. 2003, 345
Case SCI Stephaur
29 March 2002
Given that SCI Stephaur and the other complainants sought in interlocutory proceedings before the administrative tribunal of Marseilles an order, based on article L. 521-2 of the Code of Administrative Procedure, that the prefect of the Bouches-du-Rhône be required, on pain of monetary penalties (astreintes), to execute the order issued by the president of the tribunal de grande instance of Marseilles that all those presently in occupation of a building in Marseilles without right or title be expelled within ten days, on pain of a daily penalty for failure of €25; that by order of 7 February 2002, now under attack, the judge of the administrative tribunal of Marseilles rejected their request by reference to the first provision of article L. 613-3 of the Code of Building and Residence;
Given that that article provides that “Notwithstanding any definitive decision or the expiry of any period of delay accorded under the preceding articles, any order of expulsion which has not been executed by 1 November of any year shall be stayed until the following 15 March … These provisions are not, however, applicable if the persons whose expulsion has been ordered entered the premises by force…”
Given that it follows from the dossier, and is actually uncontested, that the persons whose expulsion has been ordered did indeed enter the premises by force, from which it follows that they cannot rely on the provisions of article L. 613-3 of the Code of Building and Residence which require the suspension until 15 March of any order of expulsion not executed by 1 November of the previous year; that consequently the judge of the administrative tribunal of Marseilles was guilty of an error of law in holding that “in view of the time of year” the refusal of the public power to intervene was not manifestly unlawful, so that the claimants are entitled to seek the annulment of his judgment;
Given that under article L.821-2 of the Code of Administrative Procedure the Conseil d’État which annuls a decision of an administrative court of final instance may “deal with the substance of the matter if this is in the interests of good administration”, and that in the circumstances of this case it is appropriate to do so;
Given that under article L. 521-2 of the Code of Administrative Procedure “The interlocutory judge who is faced with a request which is urgent in this sense is empowered to issue any orders which are necessary for the protection of a fundamental liberty which has been seriously infringed in an obviously illegal manner by a public body in the exercise of any of its powers…”;
Given that it emerges from the dossier that several persons who had already signed leases were about to move in to the recently refurbished condominium at 37 bis rue Thubaneau in Marseilles when, on 17 December 2001, the premises were occupied by a number of people intent on demonstrating about the shortage of housing in the area; that by order of 21 December 2001, issued on 27 December, the president of the tribunal de grande instance of Marseilles issued an order that six of the occupants and their associates be expelled within ten days thereafter, on pain of a daily penalty, and that though the assistance of the public power was sought on 8 January 2002 such assistance was refused;
Given that the right of ownership with its corollary, the right of the owner to lease out the property as he chooses, is a fundamental liberty in the sense of article L.521-2 of the Code of Administrative Procedure already mentioned, and that in refusing to lend its assistance for the execution of the final order of the president of the tribunal de grande instance of Marseilles the prefect of the Bouches-du-Rhône was guilty of a serious and obviously unlawful invasion of the exercise of the liberty claimed by the claimants, bearing in mind that the those who occupied the premises were primarily making a protest, and there was no risk of serious public disturbance;
Given that the situation is one of urgency in that at present there are no authorised occupants on the premises, the owners are being deprived of the chance of letting the premises for residential purposes, as planned, and the lessees cannot dispose of the property they have leased;
Given that it follows that it is right, under article L. 521-2 of the Code of Administrative Procedure, to order the prefect of the Bouches-du-Rhône now to take all measures needed to implement the execution of the order of the president of the tribunal de grande instance of Marseilles dated 21 December 2001 within a fortnight of his being notified of this decision, subject to a penalty, payable by the state, of €100 for every day thereafter that this order remains unimplemented;
2. That the order of 7 February of the interlocutory judge of the administrative tribunal of Marseilles is annulled;
3. That the prefect of the Bouches-du-Rhône be enjoined to take all measures needed to ensure the execution of the order of 21 December 2001 of the president of the tribunal de grande instance of Marseilles, and to do so within fifteen days of his being notified of this decision;
4. The state must pay a penalty of €100 for every day after the fifteen days allowed that this injunction remains unimplemented.
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