CASE OF JANE SMITH v. THE UNITED KINGDOM

No violation of Art. 8;No violation of P1-1;No violation of P1-2;No violation of Art. 6-1;No violation of Art. 14

Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza

The applicant is a gypsy by birth . Since her birth she has travelled constantly , mainly in the GPE area , with her family in search of work . After marrying her husband , A , DATE , this nomadic way of life continued . They have CARDINAL children , born in DATE .

The applicant and A are illiterate , as , due to their way of life , they have received little , if any , formal education . They regard travelling as detrimental to both the health of their family and to the education of their children . The applicant suffers from depression , her husband from severe gout and several of her children are asthmatic .

NORP In pursuit of a more stable existence , the applicant and her husband applied repeatedly throughout DATE for places on many of the local private and official sites in GPE including the official sites in ORG . Their applications proved unsuccessful as all the sites were full with long waiting lists . Consequently , the applicant and her husband had no option but to continue travelling . They were required to move on from roadside to roadside on innumerable occasions . For a period of time they stayed at a private site but when it was redeveloped as an official site , they were forced to move on as no space was available for them . In DATE they stayed on a relative ’s site for a period of time but were forced to leave . While the Government have suggested that in fact the applicants owned this land and that it received planning permission , this was denied by the applicant . According to the applicant , the land belonged to her brother . When , following his divorce , the land was ordered to be sold by the court as part of the financial settlement , the applicant had to leave .

In DATE , the applicant bought land known as ORG , ORG . It was a portion of a garden in a LOC area where there was already some residential development . The applicant moved a mobile home onto the land and took up residence with her family . In a declaration dated DATE the applicant ’s uncle , PERSON , a member of ORG and an employee of ORG , stated that he had attempted on numerous occasions prior to DATE to obtain a site on an official site on behalf of the applicant without success .

On DATE , ORG ( “ the ORG ” ) rejected the applicant ’s application to join the waiting list for rented council accommodation on the basis that they had not lived in the borough for a minimum of DATE . The applicant alleged that by this time they had lived for DATE in the Runnymede area , although they had been compelled to move on frequently from place to place .

In DATE , ORG had granted a declaration that ORG was in breach of its duty under section CARDINAL of GPE DATE to provide provision for gypsies ( NORP v. Secretary of ORG ex parte Smith [ DATE ] C.O.D. CARDINAL ) . In DATE , the Secretary of ORG issued a direction under section CARDINAL of the DATE Act directing that CARDINAL caravans should be accommodated . However , on CARDINAL DATE , GPE was declared a designated area pursuant to LAW DATE . The area was designated on the basis that it was not expedient for adequate provision to be made for gypsies residing in or resorting to the borough .

The previous owner of ORG , also a gypsy , had been refused planning permission in DATE to live on the land in a caravan on the basis that it conflicted with local and national planning policies . The ORG considered that the stationing of a caravan would be detrimental to the character of the Green Belt . An enforcement notice had been issued requiring discontinuance of the unauthorised use . The applicant was aware of this situation and the fact that the previous owner had appealed to the Secretary of ORG for the Environment against the refusal of planning permission and the enforcement order . When the applicant purchased the land , she was advised that there was a special concession for granting planning permission to gypsies in GPE areas under Circular CARDINAL/CARDINAL . Accordingly , she took over the appeal from the previous owner .

On DATE , ORG was held . An Inspector appointed by ORG heard evidence and representations from the applicant and ORG . By a letter dated DATE , the ORG dismissed the appeal .

“ CARDINAL . The mobile home is situated on an enclosed plot of land fronting FAC , adjacent to No . CARDINAL . This land is separated from the adjacent house by a screen fence , which continues along the rear boundary of the appeal site . The site is contained on its other side boundary by a row of conifer trees . The land has a frontage of QUANTITY to the road , most of which is formed by a hedge . …

From my inspection of the site and its surroundings and from the representations made I consider that there are CARDINAL main issues … Firstly , whether the use of the land as a residential caravan site for a mobile home and associated operational development is appropriate to this part of ORG ; and , if not , secondly , whether there are very special circumstances that would justify the retention of inappropriate development in LOC .

On the first issue , the use of land as a residential caravan site is not one of the purposes listed as being appropriate to the green belt in Planning Policy Guidance Note CARDINAL ( NORP ) . However , policy CCARDINAL of the approved PERSON DATE and policy PECARDINAL of … the Replacement Structure Plan DATE provide that gypsy caravan sites may be appropriate and necessary in the green belt , but they will not be considered acceptable as of right .

The appeals site lies within the south west sector of ORG . This section is described as containing valuable green wedges which thrust inwards to the GPE west of Molesey . PERSON is a small settlement located within CARDINAL of these wedges . Given its location within a narrow stretch of generally open countryside between FAC and Chertsey I agree with the council that the appeals site lies within a particularly sensitive part of the green belt .

From my own observations I agree … that FAC comprises CARDINAL distinct parts and that the appeals site lies within the significant gap between LOC and CARDINAL which is predominantly rural in character despite the presence of Nos CARDINAL and CARDINAL . The rustic feel of the locality is enhanced by the woodlands to the rear of < the applicants’ > land and the field on the opposite side … Notwithstanding the previous use of the land as part of the garden of No . CARDINAL , the unauthorised use and works represent an encroachment of additional development into a predominantly rural locality . It also contributes towards the coalescence of the nearby built up frontages on FAC and thereby the merger of nearby settlements . As a result I consider that the development subject to the appeals conflicts with the second and third objectives of government green belt policy listed in PPGCARDINAL . …

Whilst the mobile home is set behind the front of the adjoining house and its range of visibility from the other direction on FAC is limited by conifers on its western boundary , it , and the related operational development is significantly different to the character of the touring caravans that are parked in some of the nearby gardens , which are incidental to the enjoyment of the residential curtilages within which they stand . Notwithstanding the support of some nearby residents , I consider that the discernible presence of the unauthorised development on the appeals site is harmful to the appearance of this mainly rural location . … In light of this and its particular impact on the aims of green belt policy , I conclude … that the use of the land for a residential caravan site for a mobile home and associated operational development is not appropriate to this part of FAC .

Turning to my second issue , ORG CARDINAL states that it may be necessary to accept the establishment of gypsy caravan sites in green belt areas and that there are advantages in gypsies providing their own sites . However , in designating PERSON under LAW DATE on the grounds of expediency the Secretary of ORG gave significant weight to the extent of and characteristics of the green belt within the borough and the number of sites that had already been provided within these areas . …

Circular CARDINAL/CARDINAL advises that after a district or borough has been designated , authorities may have to be prepared to increase the provision they have made if there is a subsequent expansion of the gypsy population in their area and it is DATE since the designation of ORG in DATE . However since then the DATE surveys indicate that the number of vans parked illegally in the borough has tended to decline . Consequently , having regard to the reasons given for designation , there does not appear to be a case at this time for permitting additional gypsy caravan sites , in the green belt in ORG , contrary to policies ORG and HCARDINAL , unless there are very special circumstances .

Having regard to the personal circumstances of < the applicants > none of the family requires regular hospital treatment and I do not consider the ailments of < the applicant and her husband > and CARDINAL of their children are so exceptional or debilitating as to constitute compelling reasons for allowing inappropriate development in the green belt . Whilst I sympathise with < the applicants’ > aim to have the CARDINAL youngest children educated , CARDINAL of these is currently at school and there is no evidence that this locality is preferable to any other in terms of access to educational facilities .

I can appreciate < the applicants’ > current desire to settle in CARDINAL place but there is no specific reason why this has to be in the green belt . With regard to the consequences of < the applicants > having to vacate the site you state that they would have no alternative to reverting to their previous existence of moving from CARDINAL unauthorised site to another , with consequent hardship for the family and inconvenience to the general public . In this respect … the borough and district councils have no record that < the applicants > have sought a place on any of the official sites and < the applicant > stated that she has not enquired whether there was any space on any of the sites occupied by her relatives . Additionally , it would be open to < the applicants > to seek priority housing from the ORG .

NORP … I accept that < the applicant and her husband > have lived and worked in this area for some time and that it might not be possible to accommodate < their > mobile home on any authorised site within the area . However , on the basis of the evidence at the inquiry I am not convinced that all avenues relating to possible alternative accommodation have been fully explored . I am not , therefore , assured that < the applicants > inevitably would have to return to living on unauthorised sites … In any event , I am not persuaded that such a consequence … together with any limited benefits that might arise in terms of the health and education of the family represent very special circumstances that would justify the retention of this inappropriate development in this particularly sensitive part of FAC . … ”

The applicant remained on her land in the caravan as the family had not been offered a place on an official campsite and thus had no alternative legal site to place their caravan .

On DATE , the applicant applied to the ORG for planning permission to build a bungalow , of which there were already CARDINAL on FAC . The ORG refused planning permission . On DATE , the applicant appealed this decision by written statement as she could not afford a public enquiry .

On DATE , an ORG appointed by ORG dismissed the appeal on similar grounds to the earlier appeal , namely that the bungalow was inappropriate within the Green Belt and that there were no special circumstances which would override the strong presumption against such a development , which in this case would contribute to the coalescence of existing developments and further diminish the rural character of the area . As a consequence , the applicant and her husband were in breach of the enforcement notice and liable to receive a summons issued by ORG .

Injunction proceedings were instituted against the applicant and her family by the ORG . On DATE , the ORG obtained an injunction in the High Court requiring the applicant and her family to move off their land immediately . The applicant applied for judicial review of this decision and was granted limited legal aid . However , she received counsel ’s opinion which advised that the application was doomed to failure .

In light of the new Criminal Justice and LAW DATE , which came into force on DATE , the applicant , in fear of being on the roadside , applied to be placed on the local authority homeless list on DATE . The ORG informed the applicant ’s solicitors on DATE that the applicant had been placed on the list .

The applicant was offered accommodation in CARDINAL flats in a town . However , the rent was excessively high and there was no facility to keep her husband ’s van nor his tarmacadaming and landscape gardening equipment . Moreover , the environment next to a busy , treeless road was contrary to the country existence which she and her family had enjoyed all their lives . They have applied for accommodation in a more natural environment but no offer has yet been made . ORG had previously offered CARDINAL alternative pieces of land which were subsequently withdrawn due to a methane gas leak , boggy ground and vicinity to a rubbish dump respectively .

NORP The local authority has stated that , in the event that the applicant is forced to leave the site , the authority will provide temporary accommodation for her until permanent accommodation becomes available . However , in view of the restrictions on development within LOC , all accommodation offered will be in urban areas .

NORP The DATE Annual Report from ORG planning department revealed that following the coming into force of ORG LAW DATE ORG no longer had an obligation to identify new gypsy caravan sites and that unless very special circumstances were proved it was unlikely that new sites would be allowed in LOC and sensitive areas . The statistics for DATE showed that the official sites in the area catered for CARDINAL caravans while there were another CARDINAL caravans on unauthorised sites .

The applicant stated that in DATE the local authority decided to institute proceedings against her . Though no proceedings were issued , the ORG threatened to do so from time to time and she lived under the threat of committal for contempt . The applicant ’s husband continued to suffer from severe gout and was recently in hospital for treatment . He and the applicant both suffer from depression . Her eldest son , his wife , their son and baby lived with her , as well as CARDINAL other children . The applicant ’s children of school age were attending the local school regularly . The applicant stated that she continued to visit gypsy sites to see whether pitches were available but she has not been offered a pitch on any site and has not received any visits from the local authority .

In the Runnymede area , there were CARDINAL local authority sites accommodating CARDINAL caravans . In addition there were CARDINAL caravans on authorised sites and CARDINAL caravans on unauthorised sites . The applicant submitted that since the DATE direction by the Secretary of ORG CARDINAL additional pitches were provided . Since DATE , there had been no increase in provision in either public or private sites and no decrease in the number of unlawful encampments .

The applicant submitted that all the area of the ORG was in the Metropolitan Green Belt area while the ORG stated that only a large part of it was . The diagram and materials submitted from ORG DATE indicates that PERCENT of the County was GPE , PERCENT urban and PERCENT countryside beyond LOC , which includes some areas designated as areas of outstanding natural beauty ( PERSON ) or designated landscape value ( ORG ) . Parts of the LOC area are also classed as PERSON and ORG . PERSON and ORG areas account for PERCENT of the County . According to the diagram , the NORP area consists entirely of LOC and urban centres .

ORG DATE ( as amended by LAW DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of LAW ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .

An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .

The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG ’s decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .

If a development is carried out without the grant of the required planning permission , the local authority may issue an “ enforcement notice ” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .

There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .

Again there is a further right of appeal “ on a point of law ” to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector ’s decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .

The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document ORG ( DATE ) .

“ CARDINAL . The Government attaches great importance to GPE , which have been an essential element of planning policy for DATE …

The fundamental aim of LOC policy is to prevent urban sprawl by keeping land permanently open ; the most important attribute of ORG is their openness . Green Belts can shape patterns of urban development at sub - regional and regional scale , and help to ensure that development occurs in locations allocated in development plans . They help to protect the countryside , be it in agricultural , forestry or other use . They can assist in moving towards more sustainable patterns of urban development .

There are CARDINAL purposes in GPE :

– to check the unrestricted sprawl of large built - up areas ;

– to prevent neighbouring towns from merging into one another ;

– to assist in safeguarding the countryside from encroachment ;

– to preserve the setting and special character of historic towns ; and

– to assist in urban regeneration by encouraging the recycling of derelict and other urban land . …

NORP The essential characteristic of GPE is their permanence . Their protection must be maintained as far as can be seen ahead . …

The general policies controlling development in the countryside apply with equal force in Green Belts but there is , in addition , a general presumption against inappropriate development within them . Such development should not be approved , except in very special circumstances …

Inappropriate development is , by definition , harmful to LOC . It is for the applicant to show why permission should be granted . Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness , and any other harm , is clearly outweighed by other considerations . In view of the presumption against inappropriate development , the Secretary of ORG will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development . ”

Part II of GPE DATE ( “ the DATE LAW ) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to gypsies as a result of planning and other legislation and social changes in DATE , in particular the closure of commons carried out by local authorities pursuant to section CARDINAL of GPE and ORG DATE . LAW of LAW defined “ gypsies ” as :

“ persons of nomadic habit of life , whatever their race or origin , but does not include members of an organised group of travelling showmen , or of persons engaged in travelling circuses , travelling together as such ” .

Section CARDINAL of the DATE Act provided that it should be the duty of local authorities :

“ to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area ” .

The Secretary of ORG could direct local authorities to provide caravan sites where it appeared to him to be necessary ( section CARDINAL ) .

Where the Secretary of ORG was satisfied either that a local authority had made adequate provision for the accommodation of GPE , or that it was not necessary or expedient to make such provision , he could “ designate ” that district or county ( section CARDINAL of the DATE Act ) .

NORP The effect of designation was to make it an offence for any gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway , on any other unoccupied land or on any occupied land without the consent of the occupier ( section CARDINAL ) .

In addition , LAW gave to local authorities within designated areas power to apply to a GPE court for an order authorising them to remove caravans parked in contravention of section CARDINAL .

By DATE it had become apparent that the rate of site provision under section CARDINAL of the CARDINAL Act was inadequate , and that unauthorised encampments were leading to a number of social problems . In DATE , therefore , the Government asked Sir PERSON to carry out a study into the operation of LAW . He reported in DATE ( Accommodation for Gypsies : A report on the working of GPE DATE , “ the Cripps Report ” ) .

Sir PERSON estimated that there were CARDINAL NORP living in GPE and GPE . He found that :

“ CARDINAL - and - a - half years after the coming into operation of Part II of LAW , provision exists for CARDINAL of the estimated total number of gypsy families with no sites of their own . DATE of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law : when they stop for TIME they have no alternative but to break the law . ”

The report made numerous recommendations for improving this situation .

Circular CARDINAL/CARDINAL was issued by ORG . Its stated purpose was to provide local authorities with guidance on “ statutory procedures , alternative forms of gypsy accommodation and practical points about site provision and management ” . It was intended to apply until such time as more final action could be taken on the recommendations of ORG .

Among other advice , it encouraged local authorities to enable self - help by gypsies through the adoption of a “ sympathetic and flexible approach to [ Gypsies’ ] applications for planning permission and site licences ” . Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming , it recommended that in such cases enforcement action not be taken until alternative sites were available in the area .

Circular CARDINAL/CARDINAL , which was issued on DATE , stated , inter alia , that “ it would be to everyone ’s advantage if as many gypsies as possible were enabled to find their own accommodation ” , and thus advised local authorities that “ the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions ” .

In addition , MONEY was spent under a scheme by which MONEY grants were made available to local authorities to cover the costs of creating gypsy sites .

Section CARDINAL of ORG LAW DATE ( “ the DATE LAW ) , which came into force on DATE , repealed sections CARDINAL of the DATE Act and the grant scheme referred to above .

Section CARDINAL of the DATE Act gives to a local authority power to direct an unauthorised camper to move . An unauthorised camper is defined as

“ a person for the time being residing in a vehicle on any land forming part of the highway , any other unoccupied land or any occupied land without the owner ’s consent ” .

Failure to comply with such a direction as soon as practicable , or re - entry upon the land within DATE , is a criminal offence . Local authorities are able to apply to a GPE court for an order authorising them to remove caravans parked in contravention of such a direction ( section CARDINAL of the DATE Act ) .

In the case of NORP v. ORG , ex parte Atkinson ( DATE ) , PERSON referred to the DATE Act as “ Draconic ” legislation . He commented that :

“ For DATE the commons of GPE provided lawful stopping places for people whose way of life was or had become nomadic . Enough common land had survived DATE of enclosure to make this way of life still sustainable , but by s.CARDINAL of ORG and ORG DATE local authorities were given the power to close the commons to travellers . This they proceeded to do with great energy , but made no use of the concomitant powers given them by s.CARDINAL of the same Act to open caravan sites to compensate for the closure of the commons . By DATE , therefore ORG legislated to make the s.CARDINAL power a duty , resting in rural areas upon county councils rather than district councils … For DATE there followed a history of non - compliance with the duties imposed by the Act of DATE , marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty , to apparently little practical effect . The default powers vested in central government to which the court was required to defer , were rarely , if ever used .

The culmination of the tensions underlying the history of non - compliance was the enactment of … the Act of DATE … ”

New guidance on gypsy sites and planning , in the light of LAW , was issued to local authorities by the Government in Circular CARDINAL/CARDINAL ( DATE ) , which cancelled ORG CARDINAL/CARDINAL ( see above ) .

Councils were told that :

“ In order to encourage private site provision , local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development . ... The aim should be as far as possible to help gypsies to help themselves , to allow them to secure the kind of sites they require and thus help avoid breaches of planning control . ” ( para . CARDINAL )

However :

“ As with other planning applications , proposals for gypsy sites should continue to be determined solely in relation to land - use factors . Whilst gypsy sites might be acceptable in some rural locations , the granting of permission must be consistent with agricultural , archaeological , countryside , environmental , and LOC policies ... ” ( para . CARDINAL ) .

It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted , for example Areas of Outstanding Natural Beauty , Sites of Special Scientific Interest . Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt ( paragraph CARDINAL ) .

Further guidance issued by the Secretary of ORG dated DATE concerned the unauthorised camping by gypsies and the power to give a direction to leave the land ( LOC above ) . Paragraphs CARDINAL - CARDINAL required local authorities to adopt “ a policy of toleration towards unauthorised gypsy encampments :

“ CARDINAL . ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which can not be effectively controlled , an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance . Accordingly , authorities should consider tolerating PERSON presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites , for example by providing basic services for gypsies e.g. toilets , a skip for refuse and a supply of drinking water .

Where gypsies are unlawfully camped on Government - owned land , it is for the local authority , with the agreement of the land - owning ORG , to take any necessary steps to ensure that the encampment does not constitute a hazard to public health . It will continue to be the policy of the Secretaries of ORG that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance .

The Secretaries of ORG continue to consider that local authorities should not use their powers to evict gypsies needlessly . They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land . ”

Paragraphs CARDINAL further require local authorities to consider their obligations under other legislation before taking any decisions under LAW . These obligations include their duties concerning pregnant women and newly - born children , the welfare and education of children and the housing of homeless persons . In a judgment of CARDINAL DATE ( NORP v. ORG , ex parte Atkinson , NORP v. ORG , ex parte GPE and NORP v. ORG , ex parte GPE , unreported ) , ORG held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages .

In a letter dated CARDINAL DATE , ORG drew to the attention of all local planning authorities in GPE that Circular CARDINAL/CARDINAL required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications . The Government was concerned that this guidance had not been taken up . ORG research ( see below ) had showed that PERCENT of local authorities ( CARDINAL ) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision . It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and the detailed policies should be provided . Compliance with this guidance was essential in fulfilling the ORG ’s objective that gypsies should seek to provide their own accommodation , applying for planning permission like everyone else . It was necessary , therefore , that adequate gypsy site provision be made in development plans to facilitate this process .

The Advisory Council for ORG and Other Travellers ( ACERT ) which carried out research sponsored by ORG , noted in its report that since DATE private site provision had increased by CARDINAL caravans per year while the pace of public site provision had declined by CARDINAL caravans , disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision . Noting the increase of gypsies in housing and the increased enforcement powers under LAW , it questioned , if these trends continued , the extent to which the ethnic , cultural and linguistic identity of ORG people would be protected .

NORP The research looked , inter alia , at CARDINAL refused private site applications , which showed that PERCENT related to land within the countryside and that PERCENT were refused on grounds relating to the amenity value ( e.g. Green Belt , conservation area locations ) . Of the CARDINAL gypsy site applicants interviewed , for most acquiring permission for their own land was an important factor in improving the quality of life , gaining independence and providing security . For many , the education of their children was another important reason for private site application . All save CARDINAL had applied for permission retrospectively .

NORP The report stated that the figures for success rates in CARDINAL planning appeals showed that before DATE the success rate had averaged PERCENT but had decreased since . Having regard however to the way in which data was recorded , the actual success rate was probably PERCENT as given as the figures in DATE and DATE by the gypsy groups and ORG respectively . Notwithstanding the objectives of planning policy that local authorities make provision for gypsies , most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land - use criteria in the particular case . It was therefore not surprising that ORG most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development . Granting of permission for private sites remained haphazard and unpredictable .

NORP In DATE , ORG survey on caravans GPE disclosed that of CARDINAL caravans counted , CARDINAL were accommodated on local authority pitches , CARDINAL on privately owned sites and CARDINAL on unauthorised sites . Of the latter , CARDINAL gypsy caravans were being tolerated on land owned by non - gypsies ( mainly local authority land ) and CARDINAL gypsy caravans tolerated on land owned by gypsies themselves . On these figures , CARDINAL caravans were therefore on unauthorised and untolerated sites while over PERCENT of caravans were stationed on authorised sites .

Local authority duties to the homeless were contained in Part VII of LAW , which came fully into force on DATE . Where the local housing authority was satisfied that an applicant was homeless , eligible for assistance , had a priority need ( e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age , physical disability etc ) , and did not become homeless intentionally , the authority was required , if it did not refer the application to another housing authority , to secure that accommodation was available for occupation by the applicant for a minimum period of DATE . Where an applicant was homeless , eligible for assistance and not homeless intentionally , but was not a priority case , the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation .

This Convention , opened for signature on DATE , provides inter alia :

“ LAW

The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights , and as such falls within the scope of international co - operation .

Article CARDINAL

The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law . In this respect , any discrimination based on belonging to a national minority shall be prohibited .

NORP The parties undertake to adopt , where necessary , adequate measures in order to promote , in all areas of economic , social , political and cultural life , full and effective equality between persons belonging to a national minority and those belonging to the majority ; In this respect , they shall take due account of the specific conditions of the persons belonging to national minorities .

The measures adopted in accordance with paragraph CARDINAL shall not be considered to be an act of discrimination .

Article CARDINAL

The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture , and to preserve the essential elements of their identity , namely their religion , language , traditions and cultural heritage .

Without prejudice to measures taken in pursuance of their general integration policy , the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation . ”

The Convention entered into force on DATE . GPE signed LAW it opened for signature and ratified it on DATE . It entered into force for GPE on DATE . By DATE , it had been signed by CARDINAL of ORG ’s CARDINAL member states and ratified by CARDINAL .

The Convention did not contain any definition of “ national minority ” . However GPE in its Report of DATE to ORG concerned with the ORG accepted that gypsies are within the definition .

Recommendation CARDINAL(CARDINAL ) of ORG on NORP in LOC included the recognition that gypsies , as one of the very few non - territorial minorities in LOC , “ need special protection ” . In its general observations , the ORG stated inter alia :

“ CARDINAL . Respect for the rights of NORP , individual , fundamental and human rights and their rights as a minority , is essential to improve their situation .

Guarantees for equal rights , equal chances , equal treatment and measures to improve their situation will make a revival of PERSON language and culture possible , thus enriching the NORP cultural diversity . ”

Its recommendations included :

“ xiv . NORP member states should alter national legislation and regulations which discriminate directly or indirectly against NORP ; …

xviii . further programmes should be set up in the member states to improve the housing situation , education … of those NORP who are living in less favourable circumstances . … ”

In DATE , ORG against Racism and Intolerance issued General Policy Recommendation No . CARDINAL : Combating Racism and Intolerance against ORG . Its recommendations included :

“ … to ensure that discrimination as such , as well as discriminatory practices , are combated through adequate legislation and to introduce into civil law specific provisions to this end , particularly in the fields of … housing and education . …

… to ensure that the questions relating to ‘ ORG within a country , in particular , regulations concerning residence and town planning , are solved in a way which does not hinder the life of the persons concerned ; … ”

On DATE , ORG passed a ORG on the situation of NORP in the Community , calling on the governments of member states “ to introduce legal , administrative and social measures to improve the social situation of NORP and Travelling People in LOC ” ; and recommending that “ the ORG , the ORG and the governments ORG should do everything in their power to assist in the economic , social and political integration of NORP , with the objective of eliminating the deprivation and poverty in which the great majority of LOC ’s Gypsy population still lives at the present time ” .

DATE . Protection of minorities has become one of the preconditions for accession to ORG . In DATE , ORG adopted “ Guiding Principles ” for improving the situation of GPE in candidate countries , based expressly on the recommendations of ORG of Roma / Gypsies and the OSCE High Commissioner on ORG recommendations .

The situation of GPE and PERSON has become a standard item on FAC the agenda of ORG . CARDINAL structural developments – ORG ( ORG ) and the appointment of a High Commissioner for ORG also concerned protection of GPE and PERSON as minorities .

On DATE , the High Commissioner ’s Report on ORG and PERSON in LOC was published . Part PERSON of the Report dealt with the living conditions of GPE , noting that while nomadism had been central to NORP history and culture a majority of GPE were now sedentary ( CARDINAL estimation gave PERCENT as nomadic , PERCENT as semi - nomadic , moving DATE , while PERCENT were sedentary ) . This was particularly true of LOC , where there had been in the past policies of forced sedentarization :

“ It must be emphasised that whether an individual is nomadic , semi - nomadic or sedentary should , like other aspects of his or her ethnic identity , be solely a matter of personal choice . The policies of some LOC participating GPE have at times breached this principle , either by making a determination of a group ’s fundamental lifestyle that is inconsistent with its ORG choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity . ” ( pp . CARDINAL - CARDINAL )

The ORG stated that for those GPE who maintained a nomadic or semi - nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity . It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites , the number and size of available sites was insufficient in light of the need :

“ … The effect is to place nomadic GPE in the position of breaking the law – in some countries , committing a crime – if they park in an unauthorized location , even though authorized sites may not be available . ” ( pp . CARDINAL - CARDINAL )

The Report dealt specifically with the situation of NORP in GPE ( pp . CARDINAL ) . It found :

“ Under current law , NORP have CARDINAL options for lawful camping : parking on public caravan sites – which the ORG acknowledges to be insufficient ; parking on occupied land with the consent of the occupier ; and parking on property owned by the campers themselves . ORG has issued guidance to local authorities aimed at encouraging the last approach . In practice , however , and notwithstanding official recognition of their special situation and needs , many NORP have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property … ” ( pp . CARDINAL - CARDINAL ) .

Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans , it stated :

“ … This scheme allows wide play for the exercise of discretion DATE and that discretion has repeatedly been exercised to the detriment of NORP . A DATE report by ORG described the prospects of applying for planning permission for a Gypsy site as ‘ a daunting one laced with many opportunities for failure’ . In DATE , DATE in which the success of application rates was evaluated , it was ascertained that MONEY of applications for planning permission by NORP were denied . In contrast , MONEY of all planning applications were granted during DATE . It is to be noted that , as a category , Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities . As such , virtually all Gypsy planning applications are highly contentious . Nonetheless , the fact remains that there is inadequate provision or availability of authorized halting sites ( private or public ) , which the high rate of denial of planning permission only exacerbates . Moreover , there are indications that the situation has deteriorated since DATE . … In face of these difficulties , the itinerant lifestyle which has typified the GPE is under threat . ” ( pp . CARDINAL )

NORP The report ’s recommendations included the following :

“ … in view of the extreme insecurity many GPE now experience in respect of housing , governments should endeavour to regularize the legal status of GPE who now live in circumstances of unsettled legality . ” ( pp . CARDINAL and CARDINAL )


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE . He lives in ORG .

The applicant , a former police investigator , was suspected of abuse of office and bribery . His detention on remand was ordered by ORG on DATE on the fear of his absconding and influencing witnesses . His remand in custody was thereafter prolonged .

On DATE the ORG convicted the applicant of abuse of office and bribery , sentencing him to DATE imprisonment . On DATE ORG upheld the lower judgment . On DATE ORG rejected the applicant ’s cassation appeal in the case . The sentence was subsequently reduced in view of an amnesty law . The applicant was released from prison after having completed the sentence on DATE .

According to the applicant , all his letters to and from the ORG authorities , non - governmental organisations as well private persons - namely his family , relatives , friends and legal counsel - were opened up and read in his absence while he was in the ORG remand prison during the period from CARDINAL DATE until DATE . The applicant states that a total of CARDINAL of his letters had been opened and read . The applicant has submitted a letter addressed to his lawyer by the ORG remand prison administration on DATE , attesting that during the period from DATE to DATE the applicant had sent letters to CARDINAL addressees , including the ORG authorities , NGOs , ORG , and various third persons . All of these letters were listed in detail by the prison administration , with reference to their date , addressee , and their number in the applicant ’s file .

Article CARDINAL of the LAW guarantees the right to respect for one ’s private life , family life and correspondence .

According to LAW , which were applicable at the material time , remanded ORG letters could be subject to censorship .

Rule CARDINAL of the Remand Prisons Internal Rules provides that the remand centre administration can not open letters of detainees addressed to ORG if those letters were given to the administration to be sent in a closed envelope .

Rule CARDINAL provides that the remand prison administration shall familiarise the detainee with a reply to his correspondence within DATE following receipt of the letter addressed to the detainee . Therefore , all letters received by the detainees are not given to them and are kept in their files by the remand centre administration .


Remainder inadmissible;No violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was a security guard who was born in DATE and lived in GPE .

The applicant , together with PERSON and GPE ORG who have also lodged applications with the ORG , was involved in a series of complex commercial arrangements concerning the building of CARDINAL blocks of flats in GPE by a construction company ( “ the company ” ) .

On DATE GPE and GPE created the above - mentioned company with a capital of CARDINAL NORP lei ( MDL ) . Each of the parties was the holder of PERCENT of the company 's shares . On DATE PERSON sold PERCENT of her shares to GPE and on DATE PERCENT of her shares were sold to PERSON , a NORP national . The relevant documents were registered by ORG .

On DATE Mr PERSON , on behalf of GPE , brought an action against MONEY , seeking the exclusion of the latter from the company on the ground that FAC had not paid his part of the shares since DATE .

On DATE ORG upheld PERSON 's action and ordered the exclusion of GPE from the company . PERSON thus became the sole shareholder . On DATE the judgment became final and enforceable . The court issued an enforcement warrant and on the same date ORG registered the changes in the company 's statutory documents .

On DATE PERSON sold PERCENT of his shares to the applicant and PERCENT of his shares to ORG , who in turn sold them to CARDINAL other persons , who were represented by the applicant in these transactions .

On DATE ORG of ORG added MONEY ( ORG ) to the company 's capital . This corresponded to the value of the project documentation for the construction site which had been estimated at ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL in an audit report dated DATE .

DATE , on an unspecified date , GPE appealed against the judgment of DATE . He asked ORG to strike the case out of its list on the grounds that Mr PERSON did not have the powers to bring an action on behalf on GPE ORG examined the appeal despite the fact that the appealed decision was final , since it found that the merits of the case had been examined by ORG in GPE ' absence , who had not been legally summoned to that hearing . On CARDINAL DATE ORG dismissed the appeal and rejected the request to strike the case out of its list of cases . PERSON lodged an appeal on points of law .

On DATE ORG upheld the appeal on points of law . It quashed the judgment of ORG of DATE and ORG decision of CARDINAL DATE and ordered that the case be remitted to the first - instance court .

On DATE ORG joined PERSON 's action to a counter action filed by ORG and ORG , seeking the annulment of all documents which had led to his exclusion from the founding members of the company and for an acknowledgement of his sole ownership of the company 's shares .

By a final judgment of DATE ORG dismissed PERSON 's action and upheld in full the action lodged by ORG

Meanwhile , on DATE , ORG ordered the opening of a criminal investigation into the alleged forgery of the power of attorney whereby the applicant had represented the above - mentioned CARDINAL individuals ( see paragraph CARDINAL above ) . A criminal investigation was also opened in relation to the alleged smuggling of the project documentation for the construction site , since it had not been drafted in GPE and had to be registered with the customs when introduced into GPE . The investigation revealed that the project documentation had been brought into GPE by the applicant on DATE . It further appeared that the applicant had declared the value of the project documentation as being MDL CARDINAL whereas it had been estimated at ORG MONEY ( see paragraph CARDINAL above ) .

On DATE CARDINAL filed a criminal complaint with ORG about having been excluded from the founders of the company and about being illegally dispossessed of his shares .

On DATE , the GPE police office opened a criminal investigation against Mr PERSON into the alleged misappropriation of ORG 's assets .

On DATE an officer of ORG ( “ NORP ” ) ordered the opening of a criminal investigation into the allegations made by GPE The CFECC only relied on GPE 's allegations that following the judgment of ORG of DATE S.F. had been excluded from the founders of the company and that PERSON had subsequently sold the company 's shares to third parties , including the applicant .

On DATE both criminal investigations instituted against Mr PERSON were joined .

On DATE the criminal investigation started by ORG office on DATE into the acts of smuggling and forgery was joined to the criminal investigation started by the ORG on DATE .

On DATE all the above - mentioned criminal investigations were joined in a single criminal investigation .

On DATE an expert report commissioned by the ORG concluded that it could not firmly establish whether the power of attorney whereby the applicant had represented the above - mentioned CARDINAL individuals ( see paragraph CARDINAL above ) had properly been signed by the director of the company or whether the signature had been forged .

On DATE an investigating judge of ORG granted the ORG 's application for a search warrant to search the applicant 's domicile in GPE . The search was conducted on DATE .

On DATE , at TIME , the applicant was arrested and placed in the remand centre of the ORG .

On DATE , at TIME , the prosecutor applied to ORG for an arrest warrant for the applicant . The application recorded that the applicant lived in PERSON . It further noted that on DATE PERSON had asked ORG urgently to enforce the judgment of DATE , i.e. as soon as it had become final and enforceable . This request had been made without notice to QUANTITY and , in the prosecutor 's view , in order to erase all evidence of an offence . Relying on “ investigative information ” ( măsuri operativ - investigative ) that the applicant , together with PERSON and Mr PERSON , had executed the orders of Mr GPE against GPE , the prosecutor alleged that the applicant had committed the offence of misappropriation of another 's property . The prosecutor 's application did not refer to any other evidence in support of a reasonable suspicion that the applicant had committed the offence . Nor did it refer to any reasons for his detention or that he might abscond or put pressure on witnesses .

Later on DATE , at TIME , the applicant 's lawyer lodged an application for the applicant 's release on the ground that the period of his detention had ended at TIME that day .

At TIME , however , an investigating judge of ORG ordered the applicant 's remand for DATE . The judge gave the following reasons for the applicant 's detention :

“ [ the court ] takes into consideration the character and the degree of the alleged offence ... its seriousness , the necessity to protect public order , the sense of shock which may be caused to society by the applicant 's release , ... the existence of a danger of absconding from law enforcement authorities , the risk of influencing the outcome of the investigation and collusion between the accused and the creation of exculpatory evidence , which result from the nature of the offence ... and the personality of the accused and his conduct during the criminal proceedings .

... the court dismisses the argument that the applicant had to be released after TIME ... because the delay in the opening of the hearing was due to the examination of other remand warrants and the delay in examining the prosecutor 's request was due to the courts ' efforts to observe the procedural rights of the defence party .

... at this stage , the court considers that the relevance of the prosecution 's reasoning has priority and will contribute to the normal conduct of the criminal proceedings .

The court orders the prosecutor to ensure ... the applicant 's proper medical care . ”

The applicant appealed on DATE . The applicant did not , however , complain in his written submissions about the delay in releasing him on DATE .

On DATE the police informed the ORG that the applicant had not been living at his given address in GPE for DATE .

On DATE , at TIME , the applicant was officially indicted on charges of misappropriation of another 's property and forgery . The indictment stated that ORG 's PERCENT shares in the company were worth MDL CARDINAL ( EUR CARDINAL ) on DATE .

On DATE , at TIME , ORG examined the appeal against the decision of CARDINAL DATE and dismissed the applicant 's appeal . It did not consider the applicant 's arguments about the lack of a reasonable suspicion against him or deal with other submissions in favour of release . However , the court endorsed the reasons given by the investigating judge of ORG for remanding the applicant in custody and stated that he could abscond through the uncontrolled territory of GPE .

Still on DATE , at TIME , the prosecutor applied to ORG for an extension of the applicant 's detention for DATE . The grounds for the extension were similar to those relied upon in the initial application for a remand warrant . It further stated that the identity of all the persons who could have been aware of the offence were unknown . An investigating judge of ORG ordered the extension of the applicant 's detention for DATE for the reasons given by the prosecution later on DATE . Relying on LAW of LAW ( “ the ORG ” ) the judge further stated that in exceptional circumstances , depending on the complexity of the case , the severity of the offence and the risk of the applicant 's absconding , the detention could be prolonged . He further noted that the criminal investigation was still ongoing and that several other measures had to be taken in order to complete it . The judge however did not consider any of the arguments put forward by CARDINAL of the applicant 's lawyers that the applicant 's wife was DATE pregnant , that he would not abscond and that he did not intend to influence witnesses . The applicant appealed .

On DATE ORG rejected the appeal lodged against the decision of DATE and found that the investigating judge of ORG had observed the correct procedure . It did not adduce any new reasons for the applicant 's detention .

On DATE the applicant 's lawyer made a fresh habeas corpus application , submitting that there was no reason for the applicant 's further detention on remand . He stated that there was no risk of collusion between the accused or of influencing witnesses , since the criminal proceedings had been instituted on DATE and during that period the prosecution had done enough to obtain evidence .

On DATE the prosecutor filed a new application with ORG for the prolongation of the applicant 's detention for DATE . The prosecutor also relied on the risk that the applicant would forge identity papers and documents in order to hinder the investigation and that the identity of all the persons who could have been aware of the offence was unknown .

On DATE an investigating judge of ORG upheld the prosecutor 's request and relying on LAW of the ORG prolonged the applicant 's detention for DATE . The investigating judge endorsed the reasons given by the prosecutor in favour of the applicant 's further detention . As to the habeas corpus application , the investigating judge found that the reasons put forward by the prosecution for extending the applicant 's detention outweighed the reasons put forward by the defence . Again , the applicant 's lawyer 's argument that his wife was pregnant and that therefore he was unlikely to abscond was ignored . Similarly , the investigating judge did not heed the argument that the applicant was willing to give up his passport as an assurance that he would not leave the country . The applicant appealed .

On DATE ORG dismissed the appeal without adducing any new reasons . It noted however that the identity of the persons who could have been aware of the offence were unknown .

On DATE an investigating judge of ORG upheld a new request of the prosecution for a prolongation of the applicant 's detention and ordered a further DATE detention . In particular , the investigating judge dismissed the argument that the applicant 's wife was pregnant on the ground that she was on maternity leave and that there was no evidence that she required any assistance or medical treatment . The applicant appealed , invoking again his wife 's poor health . On DATE ORG dismissed the appeal . Neither the prosecution nor the courts adduced new reasons for the applicant 's further detention .

On DATE the investigation ended and the criminal file was referred to ORG .

On CARDINAL DATE the prosecutor applied for a further extension of the applicant 's detention for DATE on the ground that the applicant would hinder the proceedings before the court and would commit other offences .

On DATE , at TIME , ORG upheld the prosecutor 's request in full without relying on any new reasons for the applicant 's further detention . It did not examine the applicant 's contention that the prosecutor had failed to submit any evidence to substantiate his request .

The applicant appealed and argued that the decision had been issued at TIME , after the expiry of the previous remand warrant at TIME Relying on NORP v. GPE ( no . CARDINAL ) , Şarban v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL ) he argued that the domestic courts had failed to provide relevant and sufficient reasons for his detention .

On DATE the applicant 's lawyer was given the annex with the prosecution 's list of evidence . It included , inter alia , addresses of witnesses , copies of documents related to the company and the construction site , verbatim records of the examination of compact discs with recordings of telephone conversations of ORG with other co - accused and minutes of searches .

On DATE ORG dismissed the appeal . Besides the reasons outlined in the prosecutor 's request , the court stated that although a search had been conducted of the applicant 's domicile , there was no proof that he had been permanently residing there . The applicant 's application for release was considered as an attempt to influence the investigation . As to the applicant 's detention after TIME on CARDINAL DATE , the court found that he had been lawfully detained , since the hearing had been opened at TIME DATE . Finally , the court stated :

“ Moreover , [ the applicant 's ] intention to undermine the normal conduct of the proceedings ... is highlighted by the fact that constant reference is made to cases examined by ORG , and which are not related to the present case . Those cases are totally different from the present case and therefore the declarations are designed to indirectly influence the courts to release the applicant . ”

On DATE the applicant 's lawyer made a fresh habeas corpus request , submitting that there was no reason for his further detention on remand . On the same date ORG dismissed it without providing any relevant reasons .

On DATE , ORG ordered an official medical examination of the state of health of Mr GPE , who was CARDINAL of the applicant 's co - accused in the criminal proceedings . The court also suspended the criminal proceedings pending the medical examination and the delivery of a report .

On DATE , without resuming the suspended proceedings , ORG upheld a fresh request of the prosecution for a prolongation of the applicant 's detention and ordered a further DATE detention . It also dismissed a new habeas corpus request made by the applicant . On DATE ORG dismissed the appeal . Neither the prosecutor nor the courts adduced new reasons for the applicant 's further detention .

DATE . On DATE ORG resumed the criminal proceedings which had been suspended on DATE and the prosecutor requested a further prolongation of detention for DATE .

On DATE , ORG ordered the extension of the applicant 's detention for DATE . The applicant appealed .

On DATE , ORG quashed the extension order . In particular , ORG stated that the applicant had his permanent residence in PERSON , that there was no risk that he would abscond or that he would undermine the conduct of the criminal proceedings by influencing witnesses . However , ORG prohibited the applicant from leaving the city for DATE .

On DATE ORG granted the prosecutor 's request that CARDINAL of applicant 's co - accused be examined by a doctor . Accordingly , the criminal proceedings were suspended .

The relevant domestic law has been set out in GPE v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) and ORG v. GPE ( no . CARDINAL , § CARDINAL , DATE ) .

In addition , the relevant provisions of LAW ( ' the CPP ' ) read as follows :

“ ( CARDINAL ) A person may be arrested and taken into police custody for a short period of time not exceeding CARDINAL TIME and under the conditions established by law .

( CARDINAL ) The following persons may be arrested and taken into police custody :

a ) persons suspected of having committed a criminal offence punishable by a sentence of imprisonment of DATE ... ”

“ ( CARDINAL ) The criminal investigation body shall be entitled to arrest and take into custody a person suspected of having committed a crime for which the law prescribes a punishment of deprivation of liberty of DATE , only in the following cases :

CARDINAL ) when he or she has been caught in the act ;

CARDINAL ) NORP if the eye witness , including the injured party , indicates that the person has committed the crime ;

CARDINAL ) NORP if obvious traces of the crime are discovered on his body or clothes , or in his home or vehicle ;

( CARDINAL ) NORP If a person is suspected of having committed a crime in other circumstances , the person can be arrested and taken into custody only if he or she tried to abscond ; or if he or she does not have a permanent residence ; or if his or her identity could not be established .

( CARDINAL ) The arrest and detention in police custody of a person in accordance with the present article shall not exceed TIME from the moment of his deprivation of liberty .

( CARDINAL ) A person who has been detained under this article shall be brought promptly , and before the expiry of the CARDINAL-hour period , before the investigating judge , who will decide whether he or she should be remanded in custody or , if appropriate , whether he or she should be released . The application for pre - trial detention of such a person must be lodged by the prosecution TIME before the expiry of the CARDINAL-hour detention period . ”

“ ( CARDINAL ) A person who has been arrested and detained in police custody shall be released in the following circumstances :

CARDINAL ) NORP the suspicion that the person has committed a crime is not confirmed ;

CARDINAL ) NORP there are no grounds for his or her continued deprivation of liberty ;

CARDINAL ) NORP the criminal investigation body establishes that the person was arrested and detained in police custody in flagrant breach of the law ;

CARDINAL ) NORP the FAC detention period has expired ;

CARDINAL ) the CARDINAL detention period has expired and the court has not authorised the person 's arrest ... ”

( CARDINAL ) NORP criminal investigation action shall not be allowed after the suspension of the criminal investigation . ”

( CARDINAL ) The application for pre - trial detention or house arrest shall be examined without delay by the investigating judge in a closed hearing with the participation of the representative of the criminal prosecution , counsel for the defence and the suspect . In presenting his application in court , the representative of the criminal prosecution shall ensure the participation of the suspect at the court hearing ; he shall notify counsel for the defence and the suspect 's legal representative of the hearing . If defence counsel so notified does not appear at the hearing , the investigating judge shall ensure that an ex officio counsel is appointed to defend the interests of the suspect ... ”

“ ( CARDINAL ) The court shall suspend the proceedings if an accused suffers a serious illness which prevents his participation at the hearing . The court shall issue a decision to suspend or to resume the proceedings .

( CARDINAL ) If there are several co - accused and CARDINAL of them is seriously ill , the court shall suspend the proceedings only in respect of the latter , but will continue the proceedings in respect of the others . The lawyer of the accused , in respect of whom the proceedings have been suspended , shall attend with his clients the proceedings in respect of the other co - accused , if the offence had been committed by participation . ”


The applicant is an NORP national , born in DATE and currently residing in GPE ( Genoa ) .

In DATE the applicant married PERSON children , X and Y , were born in wedlock in DATE and DATE .

In DATE the applicant left the marital house and started living with a certain PERSON The applicant alleges that , since then , he made substantial efforts to maintain regular contacts with X and Y. However , he had to face “ the aggressive behaviour of his wife ” , who allegedly tried to “ destroy [ his ] reputation and his relationship with his own children . ”

The first claim before ORG

On DATE the applicant requested ORG ( “ tribunale dei minorenni ” ) to grant him the care and custody over his children . He observed that from DATE he was de facto separated from his wife and that the latter had a negative influence on X and Y.

In an order of DATE , ORG provisionally granted PERSON the custody of the children . The court also decided that the applicant should have access to X and DATE and DATE .

The judicial separation proceedings and the proceedings before ORG

On DATE PERSON filed a claim for judicial separation with ORG .

In an order of CARDINAL DATE , the President of ORG confirmed the committal to PERSON of the children 's care and custody and the applicant 's right of access . He ordered , however , that X and Y should not stay overnight at the applicant 's place when PERSON was present .

On DATE the applicant and PERSON had a daughter , PERSON

On DATE the Genoa investigating judge appointed an expert , the psychologist and psychotherapist PERSON , and charged him to analyse the relationship between X , Y and their parents and the behaviour of the applicant and PERSON with regard to their children .

On DATE L. informed the investigating judge that the applicant had refused to consign Y to his mother 's care . In an order of DATE , the investigating judge decided to suspend the applicant 's access to X and Y. This decision was adopted pursuant LAW , according to which where the conduct of the parents is detrimental to the child , the judicial authorities may take any decision that is appropriate . Such decisions may be revoked at any stage of the proceedings .

On DATE a bailiff tried to apprehend Y at the applicant 's place . However , notwithstanding the assistance of CARDINAL carabinieri , this attempt failed since the child refused to join his mother .

On DATE the applicant presented to the investigating judge a report prepared by an expert of his own choosing . The report indicated that Y had shown a spontaneous desire to live with his father and that frustrating his will would have been detrimental for the child 's psychological stability .

On DATE L. filed his final report with ORG registry . On the basis of the interviews he had had with the applicant , X , Y , PERSON and PERSON , PERSON concluded that the applicant and PERSON were trying to use Y in order to sustain their animosity against PERSON , who , on the other hand , had shown greater maturity and educational capacity .

In an order issued on DATE , the Genoa investigating judge confirmed the suspension of the applicant 's access to NORP and Y and ordered the case - file to be forwarded to ORG .

On DATE the investigating judge ordered that Y be consigned to his mother 's care , if need be , with the police 's assistance .

On DATE the applicant appealed against this order . In a decision of CARDINAL DATE , filed with the registry on DATE , ORG declared the applicant 's claim inadmissible , no appeal being available against an execution order .

On DATE PERSON , assisted by a bailiff and by the carabinieri , tried to apprehend Y at his primary school . This attempt failed as a consequence of the child 's refusal to join his mother and of the intervention of the applicant and PERSON With regard to this episode , the applicant alleged that the carabinieri physically injured Y , who was moreover psychologically humiliated before his schoolmates . However , none of these circumstances is mentioned in the bailiff 's written record .

In an order of DATE , ORG declared that PERSON should abstain from bringing Z in the neighbourhood of ORG 's primary school . It observed that according to the information at its disposal , Z , who was at that time DATE , had been waiting for prolonged periods in a car parked outside the school . Such a situation , which had occurred even on cold DATE , could be regarded as being detrimental to the interests of the little girl . This order was eventually revoked on DATE . According to the applicant , ORG moreover threatened him and PERSON of limiting their parental authority over PERSON

In an order of DATE , filed with the registry on DATE , ORG , acting in accordance with LAW and observing that the applicant had refused to consign Y to his mother 's care and to attend the meetings scheduled by the Genoa social services , ordered that the applicant 's parental authority be suspended , that the care over Y be provisionally committed to ORG and that the child be transferred to a public care institution . In execution of his order , on DATE Y was apprehended by CARDINAL policemen in front of his primary school and placed in the public care institution PERSON , which was allegedly kept secret to the applicant . On DATE the President of ORG gave the applicant a letter from Y , which had been partly censored by the authorities in order to prevent the reader from finding out the place where it had been written .

On DATE the applicant lodged an appeal against the order of DATE . In an order of DATE , filed with the registry on DATE , ORG confirmed the suspension of the applicant 's parental authority . It annulled the remainder of the impugned decision , observing that pending the separation proceedings ORG was not competent to decide issues other than those related to the above mentioned suspension .

In the meanwhile , in a decision of DATE , ORG had ordered that Y be committed to his mother , his continuos stay in a public care institution being detrimental for him . On DATE Y started living with his mother 's family .

In a judgment of DATE , filed with the registry on DATE , ORG declared that the applicant was responsible for the spouses ' separation and fixed at MONEY the DATE sum that he should pay to PERSON ORG also granted PERSON custody of the children , confirmed the suspension of the applicant 's access and charged ORG to supervise a gradual and possible renewal of the contacts between X , Y and their father .

On DATE the applicant appealed against this judgment . On DATE the President of ORG fixed the date of the hearing at DATE . On that occasion the applicant declared that he did not intend to pursue his claim . In an order of DATE , filed with the registry on DATE , ORG declared the applicant 's appeal inadmissible . As a consequence , the judgment of DATE became final . The applicant indicated that the decision to withdraw his appeal was due to the little confidence he had in the LOC magistrates .

In the meanwhile , in an order of DATE , ORG had granted the applicant access to Y once DATE . All the meetings took place in a public care institute where an educator ( “ educatore ” ) was always present .

The applicant alleged that , notwithstanding ORG decision , on DATE an educator named PERSON decided to suspend the meetings at issue . From that date , the applicant had no further contacts with Y. In a note of DATE , PERSON informed ORG that the social services had tried on several occasions to get in touch with the applicant - who could not be found - and had eventually recorded a message on his answering machine , without any result .

On DATE the applicant requested ORG to reduce the amount of the DATE sum due to PERSON and to grant him custody over Y and access to his children . In an order of DATE , filed with the registry on DATE , ORG , observing that the applicant was not represented by a lawyer as prescribed by NORP law , declared this claim inadmissible .

According to the applicant , ORG and its attached ORG refused to take into consideration a number of claims he had personally introduced seeking the annulment of the suspension of his parental authority and the adoption of a number urgent measures in the interests of his children .

The divorce proceedings

On DATE the applicant introduced a claim for divorce before ORG . The date of the hearing was fixed at CARDINAL DATE . The proceedings were subsequently adjourned to DATE , on which date the President of ORG placed himself at the disposal of the parties with a view of securing a friendly settlement of the matter . Considering that there was no basis for such a settlement , the President adjourned the case until DATE .

The other claims introduced by the applicant

In DATE and DATE , the applicant had introduced a number of claims , requesting that criminal proceedings be instituted against PERSON , the magistrates of ORG , a lawyer of his own choosing , PERSON father and the educator PERSON of these claims had any substantial result . In particular , on DATE the Genoa investigating judge decided not to commence proceedings against F. on the basis of the applicant 's allegations .