Illegality, Proportionality and the Right to Home: Ayala Flores v Italy

By Dr Rishika Sahgal

On 23 October 2025, a Chamber of seven judges of the European Court of Human Rights handed down judgment in a case challenging the proportionality of a demolition order imposed on the home of the applicant, under Article 8 of the Convention. The case  raises important issues with regards to the following themes: (1) proportionality analysis, particularly as it is applied in the context of economic and social rights such as the right to home; (2) more narrowly, how proportionality is applied in cases involving ‘unlawful’ homes; and (3) putative clashes between a concern for the environment and rights of the impoverished.

Facts

The applicant in the case was a Peruvian national living in Italy. In the early 1990s, the applicant and her husband built a home on the island of Procida, off the coast of Naples. The home was built without a building permit or authorisation, which was required because it was located in a seismic zone and in an area of ‘specific environmental interest’. In 2002, the applicant and her husband were found guilty of criminal offences proscribing such constructions. The court also ordered the demolition of the home. In 2016, the public prosecutor began proceedings to enforce the demolition order. The applicant lodged an appeal in Italian courts asking for review of the demolition order, and in additional written submissions, submitted that this was her only home where she had been residing for over fifteen years after her conviction. The appeal was dismissed. Before the European Court of Human Rights (the Court), she argued that enforcement of the demolition order disproportionately interfered with her Article 8 right to a home, and that domestic courts had failed to carry out a proportionality assessment.

Illegality and proportionality

The Court accepted that this case entailed an interference with the right to home. The applicant had sufficient and continuous links with the building for it to constitute her home. Moreover, ‘home’ for the purposes of Article 8 is not limited to lawfully established or occupied premises. Even an illegally established or occupied home can be considered a ‘home’ for the purposes of Article 8. This reiterates the Court’s previous findings in cases including Yordanova v Bulgaria (2012); Ivanova and Cherkezov v Bulgaria (2016) and Ghailan v Spain (2021). A demolition order against her home had become final and enforceable, so there was a clear interference with the applicant’s right to respect for home.

The Court was next required to evaluate whether the interference was proportionate within the terms of Article 8(2).

First, it found that the interference had a clear basis in domestic law (para 91).

Second, it checked whether it pursued a legitimate aim. Italy argued that the demolition order pursued several legitimate aims including ‘public safety’, ‘economic well-being’, ‘prevention of disorder or crime’, and ‘protection of the rights and freedoms of others’. The Court agreed. The home was built in a seismic zone, so demolishing the home in accordance with relevant regulations was in pursuance of ‘public safety’. Through enforcement of the demolition order, the state sought to reestablish the rule of law and ensure implementation of its regulatory requirements around buildings. The Court considered this as falling under ‘prevention of disorder’ and as promoting the ‘economic well-being of the country’. Finally, the Court considered that environmental conservation ‘arouses the constant and sustained interest of the public’; and so preserving an area of environmental interest through the demolition order would protect the rights and freedoms of others (para 92-96).

Third, the Court evaluated whether the order was ‘necessary in a democratic society’. Here, the Court allowed a wide margin of appreciation to the competent national authorities. Moreover, the illegality of the home loomed large in the Court’s assessment of necessity (see para 99 and 100). This finding deserves our attention. So, although a home that is established and occupied illegally is offered the protection of Article 8, the protection does not go very far, because any interference with an ‘illegal’ home will quite easily be considered proportionate.

Contrast the decision of the Court in Ayala Flores with its decision in Yordanova v Bulgaria. That case also involved ‘illegally’ established homes in the form of a settlement of residents belonging to the Roma community in Sofia, Bulgaria. The homes were built on municipal land without any authorisation, building permits or planning approval. The mayor had ordered the forcible removal of residents from municipal land. In that case, the ‘illegality’ of the settlement was only one factor considered by the Court when checking the proportionality of the order. The Court also considered, among other things, that a whole community had been residing in the settlement over a long period spanning several decades (para 121); that alternatives to their forcible removal had not been considered; and that there was a risk of residents being rendered homeless as a result of their removal (para 125-6). Also, the Court paid much attention to the social disadvantage faced by the Roma community in the context of Bulgaria and emphasised that the specificity of their housing needs must be factored into a proportionality analysis under Article 8 of the Convention (para 128-9).

Ayala Flores v Italy also involved some of these considerations – the applicant had been residing in her home for a long period (since the 1990s); she did not have an alternative home and her request for public housing had been denied; she was a widow living alone in a difficult financial situation, unable to afford rent, on an island where all the available apartments were rented to tourists (para 80). Moreover, the Court seemed to question the applicant’s vulnerability (para 118) and stated that she did not ‘elaborate’ on her difficult financial situation. In the determination of proportionality of demolition of her home her circumstances were not considered. Instead, the sole focus was on the illegality of the home.

On this issue, the majority opinion of the Court in Ayala Flores can be contrasted with that of the sole dissenting opinion by Judge Krenc, who noted that the demolition order had been passed by the national courts, ‘essentially, if not exclusively, motivated by the illegality of the construction’ (para 2). He contested the necessity of such an order to pursue the stated aims of protecting the environment and preventing risks to public safety due to construction in a seismic zone. He questioned, ‘[h]ow can the compelling need to prevent the effects of significant seismic risks, invoked by the national authorities, still remain a credible justification after such a long period of time?’ (para 6). Overall, he emphasised that the illegality of the construction ought to be only one factor when considering the proportionality of a demolition order against a home under Article 8 of the Convention.

Overall, there seems to be an inconsistent approach of the Court in cases involving ‘illegal’ homes. While cases like Yordanova emphasise a whole host of factors when determining the proportionality of demolition orders against ‘illegally’ established homes, Ayala Flores seemed to reduce the focus to the illegality of the construction over other factors.

The environment and the impoverished

Perhaps one way of explaining this divergence in approach is to acknowledge the increasing importance being given to environmental concerns within the terms of both Article 2 (see Cannavacciuolo and others v Italy (2025) involving large-scale pollution) and Article 8 of the Convention (see Verein Klimaseniorinnen Schweiz and Others v Switzerland (2024) raising the issue of climate change). In Ayala Flores, the majority paid much attention to the fact that the home of the applicant was built in breach of laws around environmental protection – it was built in an area of ‘specific environmental interest’ where construction was not permitted. This issue played a heightened role in determining that the demolition order against the applicant’s home was proportionate. The Court held that it ‘will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community’ (para 99).

In other jurisdictions, and especially India, courts have permitted and even ordered large scale demolition of homes for environmental reasons. For example, in Almitra Patel (2000) the Indian Supreme Court ordered the demolition of an informal settlement that, it considered, was contributing to generation of solid waste. More recently in Shakeel Ahmed (2024), the Indian Supreme Court permitted the demolition of an informal settlement consisting of 150,000 homes for the purpose of conservation of a river (for a critique of these cases see Bhatia and Sahgal 2025). The informal settlements in both cases, like the home in Ayala Flores, were established in violation of planning norms. These decisions emerging from India have been critiqued as furthering what sociologist Amita Baviskar has termed as bourgeoisie environmentalism (Baviskar 2004; Baviskar 2020). Under a bourgeoisie environmentalism, the rights of the impoverished are not paid sufficient attention when considering the proportionality of demolition of their homes to further environmental interests.

This framing of bourgeoisie environmentalism is relevant when examining cases such as Ayala Flores under the European Convention of Human Rights. It becomes relevant to examine whose environmental rights/interests are being furthered, and who bears the burden of protection of the environment. As Judge Krenc observed in his dissent, given that only a single home had been constructed in the area, and had stood there for several decades, was it truly necessary to order its demolition to protect the environment? Moreover, how do we consider both the environmental rights and the right to a home of impoverished people within a proportionality assessment under Article 8? Because surely impoverished people enjoy both rights within the terms of Article 8. Yet in Ayala Flores, the Court considered the environmental interests of ‘other people in the community’ (para 99), and not of the applicant herself. A proportionality analysis that considers both rights as vesting within impoverished people may lead to a different result, and in any case avoid a ‘bourgeoisie environmentalism’. Such a framing may be even more relevant in cases involving larger community settlements consisting of multiple homes, such as that in Yordanova v Bulgaria.

Conclusion

With rising inequality, a housing crisis, and a climate emergency amongst other environmental concerns, cases such as Ayala Flores are bound to come again before courts in Europe. These cases will be of much interest for those concerned with the rights to home and environment in Europe and beyond.