The applicant , who is of NORP origin , was born in DATE in GPE and has lived in GPE ( GPE ) since DATE . She was a NORP national until DATE and now has no nationality .

NORP In DATE the applicant , who was living in GPE at the time , married a NORP civil servant employed by ORG . In DATE the couple had a daughter , born in GPE . In DATE the applicant and her family settled in NORP territory .

NORP In DATE the applicant ’s husband was granted the right , in a professional capacity , to rent a room in a “ duty residence ” in GPE . In DATE he exchanged the accommodation he had previously been renting in GPE ) for the right to rent a ORG - owned flat in GPE . He and his family moved in straight away .

On DATE the applicant cancelled her formal registration of residence ( known at the time as пропucкa in NORP and pieraksts or dzīvesvietas reģistrācija in NORP ) in PERSON ( GPE ) . On DATE the applicant ’s husband registered her , without her knowledge or consent , as resident at the family ’s new address in GPE . In DATE he registered his own residence at that address .

In the meantime , in DATE , the applicant lodged a complaint with the relevant local authority concerning her residence registration , arguing that her husband had registered her residence unlawfully without informing her . Consequently , on DATE , her name was removed from the register in question . Her minor daughter , however , continued to be registered at her father ’s address until DATE .

In DATE the applicant and her husband divorced .

In DATE GPE regained full independence . In DATE GPE , the State of which the applicant had hitherto been a national , broke up . The applicant therefore became stateless .

By a final judgment of CARDINAL DATE ORG granted the applicant the right to rent the room obtained by her former husband in a “ duty residence ” in DATE . Shortly afterwards , still in DATE , the applicant requested ORG ( GPE ministrijas GPE un imigrācijas departaments – “ the GPE ” ) to enter her name in the register of residents ( ORG reģistrs ) as a permanent resident of GPE . In her request , however , she gave the address at which her ex - husband had unlawfully registered her , rather than the address in GPE at which she then lived . The Government explained that this had been a case of mistaken interpretation of the law on the register of residents , CARDINAL which had had farreaching consequences , having led to the loss of the applicant ’s legal status in GPE .

The GPE granted the applicant ’s request . In DATE her daughter obtained the same registration as her mother . However , by a decision of DATE , the ORG cancelled the applicant ’s registration on the ground that the stamp in her passport was false . The file was immediately forwarded to the NORP district prosecutor who , in a decision of DATE , decided not to institute criminal proceedings against the applicant . The prosecutor found that the registration stamp was authentic , but had been placed in the passport by the authorities in breach of the relevant regulations . The prosecutor concluded that , although the applicant ’s registration of residence was not valid , she could not be charged with forgery or use of forged documents .

On DATE the ORG removed the applicant ’s name from the register of residents and cancelled her personal identification code ( personas kods ) . On DATE the same action was taken in respect of the applicant ’s minor daughter .

On DATE ORG of ORG allowed a third - party appeal by ORG and quashed the final judgment of DATE concerning the applicant ’s right to rent the room she was living in . The case was therefore referred back to GPE , which , in an order of DATE , decided “ not to examine the case ” .

On DATE the ORG served a deportation order ( izbraukšanas rīkojums ) on the applicant , ordering her to leave GPE with her daughter by DATE . ORG had discovered that , on DATE , the decisive date laid down by the Aliens and ORG ( “ LAW ” ) , the applicant had not had an officially registered permanent residence in GPE . Under the terms of the first paragraph of ORG decision on the arrangements for entry into force and application of that LAW ( see paragraph CARDINAL below ) , she ought therefore to have applied for a residence permit within DATE of the date of entry into force , failing which she would be made the subject of a deportation order ; the applicant , however , had omitted to do this .

Having lodged an administrative appeal with the head of ORG , without success , the applicant applied to ORG seeking to have the order for her deportation set aside and to have her name re - entered in the register of residents .

By a judgment of CARDINAL DATE the court of first instance rejected the application . The court found that , since the registration of the applicant ’s residence in GPE had never been valid , she did not fall within the scope of the LAW on the Status of Former GPE Citizens without NORP or other Citizenship ( “ LAW ” ) ; she was therefore illegally resident in GPE . The applicant lodged an appeal on points of law against this judgment with ORG . The latter , in a final judgment of CARDINAL DATE , dismissed the appeal on the same grounds as the lower court .

In DATE the applicant made a fresh application for a residence permit to the ORG ; the application was rejected .

Following the entry into force on DATE of amendments to section CARDINAL of LAW , the applicant requested the head of ORG Nationality and Migration Directorate ( GPE ministrijas GPE un migrācijas lietu pārvalde – “ the ORG ” ) , which had succeeded the ORG , to regularise her stay in accordance with LAW . When her request was refused , she lodged a fresh application with GPE . In her memorial she stressed in particular that she had been living in GPE for DATE and that she and her daughter had no other country to move to .

NORP In a judgment of CARDINAL DATE the district court rejected the application . It held that the applicant did not satisfy the conditions laid down in section CARDINAL(CARDINAL ) of LAW since , on DATE , she had not had a valid registration of residence in GPE . Furthermore , on that date , she had been resident in NORP territory for DATE rather than the required DATE . With specific regard to whether the registration of the applicant ’s residence in GPE was null and void , the court referred to the arguments and findings set out in ORG judgment of DATE , which had become final .

The applicant appealed against the judgment before ORG . In a judgment of DATE following adversarial proceedings , the regional court also found against the applicant , endorsing in substance the reasoning of the court of first instance . The applicant then lodged an appeal on points of law with the ORG of ORG . In a final order of DATE the ORG , in a preparatory sitting ( rīcības sēde ) held in private , declared the appeal inadmissible for lack of arguable legal grounds .

Meanwhile , on DATE , the applicant made a third application for regularisation to the ORG , requesting it to grant her “ the right to reside legally in GPE ” . Her application was rejected .

In a letter of CARDINAL DATE to ORG , the director of ORG ( NORP cilvēktiesību birojs ) expressed support for the applicant ’s cause and requested the ORG to regularise her stay in GPE . The letter received no reply .

In DATE the head of the ORG decided to reopen the file concerning the applicant ’s daughter , who was then DATE . He noted in particular that , on DATE , she had been registered at her father ’s address as a “ permanently resident non - citizen ” of GPE , and that she therefore fulfilled the requirements of LAW . Accordingly , in DATE , the ORG issued the applicant ’s daughter with a passport based on the status of “ permanently resident noncitizen ” , re - entered her name in the register of residents and gave her a new personal identification code .

By Decree no . CARDINAL of ORG of DATE , the applicant ’s daughter became a naturalised NORP citizen ( paragraph CARDINAL of the Decree ) .

On DATE the ORG sent a letter to the applicant which read as follows :

“ ... The Directorate ... has taken note of the final decision of ORG ( First Section ) ... on the admissibility of the application in the case of PERSON v. GPE .

The ORG has explored the options currently available under NORP legislation which might make it possible to regularise your stay in GPE ; it therefore invites you to take this opportunity to have your legal status in GPE determined and to obtain a residence permit .

On DATE a deportation order was served on you under LAW of the [ Aliens ] Act , requesting you to leave NORP territory by DATE . The deportation order has not been enforced , nor have any measures been taken with a view to its enforcement . Section CARDINAL(CARDINAL ) of LAW ... currently in force stipulates that ‘ an administrative act may not be enforced if DATE have elapsed since it became DATE ... In view of the fact that , under the previously existing rules , enforcement of the deportation order was not stayed , and that you did not comply with it , enforcement is no longer possible .

ORG , in force prior to DATE [ DATE ] , made no provision for granting stateless person status to persons illegally resident in GPE . Accordingly , the ORG did not invite you to submit the papers required to obtain that status .

LAW which entered into force on DATE replaced ORG ... The conditions for the granting of stateless person status laid down by the [ new ] Act differ from those contained in the [ old ] Act .

Under Section CARDINAL(CARDINAL ) of LAW , a person may be granted stateless person status ... if no other ORG has recognised him or her as a national in accordance with its own laws . Under section CARDINAL(CARDINAL ) of the LAW , persons not covered by LAW DATE relating to ORG can not be recognised as stateless persons ...

In accordance with section CARDINAL(CARDINAL ) of LAW , in order to be recognised as a stateless person , the individual concerned must submit to the ORG :

( CARDINAL ) a [ written ] application ;

( CARDINAL ) an identity document ;

( CARDINAL ) a document issued by a competent body in the foreign ORG , to be determined by the ORG , certifying that the person concerned is not a national of that ORG and is not guaranteed nationality of that ORG , or a document certifying the impossibility of obtaining such a document .

In view of the fact that you were born in GPE and are of NORP ethnic origin and the fact that , prior to your arrival in GPE , you had been living in GPE ... , it is essential ... to ascertain that you are not recognised as a national of GPE or of GPE or guaranteed the right to nationality of those countries in accordance with their laws . Accordingly , to enable us to take a decision granting you stateless person status , you must provide [ us ] with a document issued by the competent bodies in GPE and GPE to the effect that you are not a national of those countries and that you are not guaranteed the right to such nationality , or with a document certifying the impossibility of obtaining such a document .

Under section DATE ) of LAW , stateless persons must reside in GPE in accordance with the rules laid down by LAW , that is to say , on the basis of a residence permit or , at least , a visa .

Having considered the circumstances of your case , we are prepared , once we have determined your legal status and obtained the necessary documentation ... , to address an opinion to the Minister of the ORG proposing that you be issued with a permanent residence permit , in accordance with section CARDINAL(CARDINAL ) of LAW ... ”

The ORG then listed the documents to be submitted by the applicant to her local department and indicated the usual period of validity of each document . The letter went on as follows :

“ Once you have been recognised as a stateless person and been issued with a residence permit ... , your personal data will be entered in the register of residents and you will receive a personal identification code .

In the ORG ’s view , this is the only basis on which you can obtain a permanent residence permit , given the circumstances of your case ... That being so , the ORG , in addressing its opinion to the Minister of the ORG , will draw the Minister ’s attention to the fact that issuing you with a permanent residence permit would be compatible with the aspects [ sic ] of a NORP society , while maintaining the fair balance to be struck between the restriction of individual rights and the benefits to society of that restriction . The aim is to ensure that you have the right to conduct your private and family life without hindrance .

The ORG would draw your attention to the fact that no one can be recognised as a stateless person or obtain a residence permit on a unilateral basis . You must therefore express a personal interest by making an application to that effect . In the view of the ORG , ... the solution outlined above corresponds to your interests , would remove the threat of deportation in the future and would enable you to exercise your right to private and family life without any great restrictions ; moreover , in accordance with LAW , you could aspire to NORP citizenship by naturalisation .

In view of the above , we invite you to contact the ORG and submit the necessary documents to it , so that ... your legal status can be determined and ... the Minister of the ORG can take a decision on the issuing of a permanent residence permit . ... ”

At the end of the letter the ORG gave the telephone numbers of the officials to whom the applicant should address any further queries concerning the regularisation of her status .

By Decree no . CARDINAL of DATE , ORG instructed the Minister of the ORG to issue the applicant with a permanent residence permit “ once the documents required to make such an application have been received ” ( LAW . At the same time the Minister of ORG was instructed to have the ORG ’s decision of DATE on the admissibility of the present application translated into NORP , and to have the translation published in ORG ( Article CARDINAL ) .

It is clear from the applicant ’s explanations that she did not take the steps indicated by the ORG and that she continues to reside illegally in GPE .

NORP legislation on nationality and immigration distinguishes several categories of persons , each with a specific status .

( a ) NORP citizens ( Latvijas Republikas pilsoņi ) , whose legal status is governed by LAW ( GPE likums ) ;

( b ) “ permanently resident non - citizens ” ( nepilsoņi ) – that is , citizens of the former GPE who lost their NORP citizenship following the break - up of the GPE in DATE , but have not subsequently obtained any other nationality DATE who are governed by LAW ( see paragraph CARDINAL below ) ;

( c ) asylum - seekers and refugees , whose status is governed by LAW ( Patvēruma likums ) ;

( d ) “ stateless persons ” ( bezvalstnieki ) in the narrow and specific sense of the term . Prior to DATE their status was governed by ORG , read in conjunction with LAW ( see paragraphs CARDINAL and DATE below ) and , after DATE , with LAW ( see paragraph CARDINAL below ) . Since DATE their status has been governed by the new LAW ( see paragraph CARDINAL below ) , also read in conjunction with LAW ;

( e ) “ aliens ” in the broad sense of the term ( ārzemnieki ) , including foreign nationals ( ārvalstnieki ) and stateless persons ( bezvalstnieki ) falling solely within the ambit of LAW ( before DATE ) , and LAW ( after DATE ) .

The relevant provisions of the LAW of DATE on the Status of Former GPE Citizens without NORP or other Citizenship ( Likums “ ORG to bijušo ORG pilsoņu statusu , kuriem nav Latvijas vai citas valsts pilsonības ” ) read as follows :

[ Version in force before DATE ] : “ This Act governs citizens of the former GPE resident in GPE ... , who were resident within NORP territory prior to DATE and whose residence is registered there , regardless of the status of their housing , and who are not citizens of GPE or any other ORG ; it also governs the minor children of such persons who are not citizens of GPE or any other ORG . ”

[ Version in force since DATE ] : “ The persons governed by this LAW ‘ non - ORG – shall be citizens of the former GPE who are resident in GPE ... , and their children , who satisfy all the following criteria :

( CARDINAL ) on DATE they were registered as being resident within the territory of GPE , regardless of the status of their housing ; or their last registered place of residence on DATE was in GPE ; or a court has established that before the above - mentioned date they had been resident within NORP territory for not less than DATE ;

( CARDINAL ) they do not have NORP citizenship ;

( CARDINAL ) they are not and have not been citizens of any other ORG . ... ”

“ ... [ LANGUAGE shall have the right :

The specific status of “ stateless person ” ( bezvalstnieks ) was established by ORG NORP “ ORG bezvalstnieka statusu Latvijas NORP ” ) of DATE . The Act remained in force until DATE , when it was replaced by LAW likums ) of DATE .

Section CARDINAL(CARDINAL ) of the DATE Act read as follows :

“ The status of stateless person may be granted to persons whose status is not defined either by LAW on the Status of Former GPE Citizens without NORP or other Citizenship or by LAW , provided they

( CARDINAL ) are legally resident in GPE . ”

The relevant provisions of the new LAW read as follows :

“ In GPE , an individual may be recognised as a stateless person if no other ORG has recognised him or her as a national in accordance with its own laws . ”

“ CARDINAL . In GPE , an individual not falling within the scope of LAW DATE relating to ORG may not be recognised as a stateless person .

An individual whose status is governed by the [ Non - Citizens ] Act may not be recognised as a stateless person . ”

“ CARDINAL . In order to be recognised as a stateless person , the individual concerned must submit to the [ Directorate ] :

( CARDINAL ) a [ written ] application ;

( CARDINAL ) an identity document ;

Where the individual concerned is unable to produce CARDINAL of the documents referred to in points CARDINAL or CARDINAL of the first paragraph , an official instructed by the head of the ORG shall decide whether or not to grant him or her the status of stateless person . The decision shall be taken on the basis of information available to the ORG supported by documentary evidence . ”

NORP The person [ concerned ] may appeal to the head of the ORG against the decision [ concerning the granting of stateless person status ] .

NORP The person [ concerned ] may lodge an application with the courts challenging the decision by the head of the Directorate . ”

“ CARDINAL . The stateless person shall reside in GPE in accordance with the provisions of LAW . ”

The relevant provisions of the Aliens and ORG of DATE ( NORP “ ORG ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos GPE ) , in force prior to CARDINAL DATE , read as follows :

“ Any foreigner or stateless person shall be entitled to stay in GPE for DATE [ version in force since CARDINAL DATE : ‘ DATE in the course of CARDINAL of a calendar PERSON ] , provided that he or she has obtained a residence permit in accordance with the provisions of this LAW . ... ”

“ Aliens or stateless persons may be issued with ...

( CARDINAL ) a temporary residence permit ;

( CARDINAL ) a permanent residence permit . ... ”

“ Permanent residence permits may be obtained by aliens who , on DATE , were officially registered as being resident for an indefinite period within GPE if , at the time of applying for a permanent residence permit , they are officially registered as being resident within GPE and are entered in the register of residents . ”

“ No residence permit shall be issued to a person who

( CARDINAL ) was deported from GPE during DATE preceding the application ;

( CARDINAL ) has knowingly supplied false information in order to obtain such a permit ;

( CARDINAL ) is in possession of false or invalid identity or immigration documents ;

“ The head of the ORG or of the regional office of the ORG shall issue a deportation order ...

( CARDINAL ) if the alien or stateless person ... is in the country without a valid visa or residence permit ; ... ”

“ The individual concerned shall leave the territory of GPE within DATE after the deportation order has been served on him or her , provided that no appeal is lodged against the order in accordance with this section .

Persons in respect of whom a deportation order is issued may appeal against it within DATE to the head of the ORG , who shall extend the residence permit pending consideration of the appeal .

An appeal against the decision of the head of the ORG shall lie to the court within whose territorial jurisdiction the ORG ’s headquarters are situated , within DATE after the decision has been served . ”

NORP The decision of ORG of DATE on the arrangements for entry into force and application of LAW gave details of the scope of the LAW . In particular , the first paragraph required foreign nationals and stateless persons resident in GPE on the date of the LAW ’s entry into force , but with no permanent registration of residence , to apply for a residence permit within DATE , failing which they would be served with a deportation order .

Since DATE LAW cited above is no longer in force ; it was repealed and replaced by LAW ( GPE likums ) of DATE . The relevant provisions of the new Act read as follows :

“ The present Act uses the following definitions :

an alien [ ārzemnieks ] – a person who is neither a NORP citizen nor a “ [ permanently resident ] non - citizen ” of GPE ; ... ”

“ In cases not covered by the present Act , a permanent residence permit shall be granted by the Minister of the ORG , where it accords with the interests of the ORG . ”

“ ... When the time - limit set down [ for submitting an application for a residence permit ] has passed , the head of the ORG may authorise [ the person concerned ] to submit the [ relevant ] documents , where such authorisation accords with the interests of ORG , or on grounds of force majeure or humanitarian grounds . ”

“ CARDINAL . Within DATE of establishment of the facts detailed in the first and second subparagraphs of the present paragraph , ... the [ relevant ] official of the ORG shall take a forcible expulsion decision ... , where :

( CARDINAL ) the alien has not left GPE within DATE of receiving the deportation order ... , and has not appealed against the order to the head of the Directorate ... , or the head of the ORG has dismissed the appeal ;

NORP In the cases referred to in the first subparagraph of paragraph CARDINAL of this section , no appeal shall lie against the forcible expulsion decision ...

In the event of a change of circumstances , the head of the ORG may set aside a forcible expulsion decision . ”

Section CARDINAL(CARDINAL ) of LAW ( NORP procesa likums ) , in force since DATE , provides :

“ An administrative act may not be enforced if DATE have elapsed since it became enforceable . In calculating the limitation period , any period during which implementation of the administrative act was suspended shall be deducted . ”


CASE OF HASHMAN AND HARRUP v. THE UNITED KINGDOM

Not necessary to examine Art. 11;Violation of Art. 10;Costs and expenses award - Convention proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney;Simon Brown

On DATE the applicants blew a hunting horn and engaged in hallooing with the intention of disrupting the activities of the PERSON . A complaint was made to the PERSON magistrates that the applicants should be required to enter into a recognisance with or without sureties to keep the peace and be of good behaviour pursuant to the Justices of LAW .

The applicants were bound over to keep the peace and be of good behaviour in the sum of MONEY for DATE on DATE . They appealed to ORG , which heard their appeals on DATE at GPE .

ORG , comprising a ORG judge and CARDINAL magistrates , found that the applicants had not committed any breach of the peace and that their conduct had not been likely to occasion a breach of the peace . It found the following facts :

“ ( a ) On DATE , PERSON , a joint Master of PERSON , saw the [ applicants ] in the environs of ORG , and heard the sound of a hunting horn being blown from that position . Later , at CARDINAL p.m. , he saw the [ applicants’ ] car on LOC and again heard the sound of a hunting horn being blown . On that occasion he also heard [ the second applicant ] hallooing . Some hounds were drawn towards the [ applicants ] , and hunt staff had to be deployed to recover them .

( b ) At TIME , a solitary hound ran out of PERSON ’s PERSON along FAC . It suddenly , and for no apparent reason , ran across the road and was killed by a lorry travelling in the direction of ORG .

( c ) At TIME , [ the first applicant ] stated to a police constable that he had been blowing a hunting horn , but nowhere near where the hound was killed . The police officer seized the hunting horn .

( d ) Iwerne Hill is QUANTITY from where the hound was killed , and , at the time of its death , it was travelling away from the hunt and away from LOC .

( e ) On their own admissions each [ applicant ] was a hunt saboteur . [ The first applicant ] admitted that he had blown the horn and [ the second applicant ] that she shouted at hounds . Their object was to distract hounds from hunting and killing foxes .

( f ) An expert , a Mr A. Downes , told us that he had observed hunts for DATE and had frequently seen hounds running loose on the road away from the main pack . In his opinion , this caused danger to hounds and to other users of the road . ”

On the basis of these facts , ORG was of the following opinion :

“ ( a ) The [ applicants’ ] behaviour had been a deliberate attempt to interfere with the PERSON and to take hounds out of the control of the huntsman and the whippersin .

( b ) That in this respect the actions of the [ applicants ] were unlawful , and had exposed hounds to danger .

( c ) That there had been no violence or threats of violence on this occasion , so that it could not be said that any breach of the peace had been committed or threatened .

( d ) That the [ applicants ] would repeat their behaviour unless it were checked by the sanction of a bind over .

( e ) That the [ applicants’ ] conduct had been contra bonos mores .

( f ) That NORP v. PERSON [ see below ] was distinguishable in that it related to the power of arrest for breach of the peace , which could only be exercised if there was violence or the immediate likelihood of violence .

( g ) That the power to bind over ‘ to keep the peace and be of good ORG was wider than the power of arrest and could be exercised whenever it was proved either that there had been a breach of the peace or that there had been behaviour contra bonos mores , since a breach of the peace is ex hypothesi contra bonos mores , and the words ‘ to keep the NORP added nothing to what was required of the defendant by the words ‘ to be of good ORG . ”

The court noted that neither ORG report on binding over nor LAW was part of domestic law .

The ORG judge agreed to state a case to ORG , but legal aid for the case stated was refused on DATE . The ORG appeals against the decisions were dismissed on DATE .

Breach of the peace DATE which does not constitute a criminal offence ( NORP v. GPE ORG , ex parte ORG Commissioner [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) DATE is a common - law concept of great antiquity . However , as Lord PERSON , giving judgment in ORG in the case of NORP v. PERSON ( [ DATE ] CARDINAL Queen ’s Bench Reports CARDINAL ) , remarked in DATE :

“ A comprehensive definition of the term ‘ breach of the peace’ has very rarely been formulated … ” ( p. CARDINAL )

He continued :

“ We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault , an affray , a riot , unlawful assembly or other disturbance . ” ( p. CARDINAL )

In a subsequent case before ORG ( PERSON v. Director of Public Prosecutions [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , Mr Justice PERSON followed ORG in holding that there must be a risk of violence before there could be a breach of the peace . However , it was not essential that the violence be perpetrated by the defendant , as long as it was established that the natural consequence of his behaviour would be to provoke violence in others :

“ The conduct in question does not itself have to be disorderly or a breach of the criminal law . It is sufficient if its natural consequence would , if persisted in , be to provoke others to violence , and so some actual danger to the peace is established . ” ( p. DATE )

In PERSON and PERSON v. Director of Public Prosecutions ( [ DATE ] CARDINAL Justice of ORG ) , Lord Justice PERSON stated :

“ … the court would surely not find a [ breach of the peace ] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course , it would be if the defendant ’s conduct was not merely lawful but such as in no material way interfered with the other ’s rights . A fortiori , if the defendant was properly exercising his own basic rights , whether of assembly , demonstration or free speech . ” ( p. CARDINAL )

Behaviour contra ORG mores has been described as “ conduct which has the property of being wrong rather than right in the judgment of the majority of contemporary fellow citizens ” ( per Lord Justice PERSON in ORG v. ORG [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) .

In NORP v. PERSON , ex parte PERSON ( [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) ORG rejected the view that a person could not be bound over to be of good behaviour when there was no reason to apprehend a breach of the peace . As in the case of binding over to keep the peace , there had to be some reason to believe that there might be a repetition of the conduct complained of before an order to be of good behaviour could be made .

Magistrates have powers to “ bind over ” under LAW DATE ( “ the DATE LAW ) , under common law and under LAW ( “ the GPE ” ) .

A binding - over order requires the person bound over to enter into a “ recognisance ” , or undertaking secured by a sum of money fixed by the court , to keep the peace or be of good behaviour for a specified period of time . If he or she refuses to consent to the order , the court may commit him or her to prison , for DATE in the case of an order made under LAW or for an unlimited period in respect of orders made under LAW or common law . If an order is made but breached within the specified time period , the person bound over forfeits the sum of the recognisance . A binding - over order is not a criminal conviction ( NORP v. GPE Quarter Sessions , ex parte ORG Commissioner [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) .

Section CARDINAL of the CARDINAL Act provides :

“ ( CARDINAL ) The power of a GPE court on the complaint of any person to adjudge any other person to enter into a recognisance , with or without sureties , to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint .

( CARDINAL ) If any person ordered by a GPE court under subsection ( CARDINAL ) above to enter into a recognisance , with or without sureties , to keep the peace or to be of good behaviour fails to comply with the order , the court may commit him to custody for a period not exceeding DATE or until he sooner complies with the order . ”

In addition to the statutory procedure , magistrates have powers to bind over at common law and under LAW . These powers allow magistrates , at any stage in proceedings before them , to bind over any participant in the proceedings if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra DATE . It is not open to the justices to attach specific conditions to a binding - over order ( PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ; PERSON v. Chief Constable of GPE [ DATE ] Criminal Law Review DATE ) .

An order of the magistrates to require a person to enter into a recognisance to keep the peace or to be of good behaviour can be appealed either to ORG or ORG . An appeal to ORG is limited to questions of law , and proceeds by way of “ case stated ” . An appeal to ORG , under ORG from Binding - Over Orders ) Act DATE , section CARDINAL , proceeds as a rehearing of all issues of fact and law .

NORP In response to a request by the Lord Chancellor to examine binding - over powers , ORG ( the statutory law reform body for GPE and GPE ) published in DATE its report entitled “ Binding Over ” , in which it found that :

“ CARDINAL NORP We regard reliance on contra bonos mores as certainly , and breach of the peace as very arguably , contrary to elementary notions of what is required by the principles of natural justice when they are relied on as definitional grounds justifying the making of a binding - over order . Because an order binding someone to be of good behaviour is made in such wide terms , it fails to give sufficient indication to the person bound over of the conduct which he or she must avoid in order to be safe from coercive sanctions …

CARDINAL NORP We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour . These objections are , in summary , that the conduct which can be the ground for a bindingover order is too vaguely defined ; that binding - over orders when made are in terms which are too vague and are therefore potentially oppressive ; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous ; that orders which restrain a subject ’s freedom can be made without the discharge of the criminal , or indeed any clearly defined , burden of proof ; and that witnesses , complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them . ” ( Law Commission Report no . CARDINAL )

ORG recommended abolition of the power to bind over .


Remainder inadmissible;No violation of Art. 3 (substantive aspect)

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

On DATE the applicant , a former police officer , was arrested on the NORP - Turkish border on suspicion of smuggling drugs into GPE . According to the record of the applicant ’s body search carried out on the spot , CARDINAL FAC pills were found in a pocket of his jacket . He signed the record , noting in his own handwriting that he did not object to being searched in the absence of a lawyer . The applicant exercised his right to remain silent at that time , as well as during an examination he underwent as a suspect the following day .

On DATE the applicant was charged with trafficking substances analogous to , or precursors of , narcotic drugs ( Articles CARDINAL and CARDINAL of LAW ) . Questioned on DATE in the presence of his advocate , the applicant agreed to testify . He confessed to the crime , naming his accomplices , including a high - level official of the anti - drug department of ORG of the ORG , who had allegedly been covering up their illicit dealings . Subsequently , the investigation authority arrested the named persons , some of whom confessed to the drug trafficking . Other relevant evidence , including transcripts of taped telephone conversations between some of the suspects , was also added to the criminal file .

On DATE the applicant and his accomplices were convicted of the above - mentioned drug offence . During the trial , the applicant retracted his previous self - incriminating statements and claimed innocence , asserting that the police had planted the Subutex in his pocket and that he had never conspired to engage in any illicit drug dealing . The court took note of that retraction and nevertheless observed that the applicant ’s new version of events contradicted other findings in the case . Those findings were based , inter alia , on full or partial confessions explicitly made by some of his accomplices during the trial , in the presence of their advocates . In addition , the court analysed the transcripts of the taped telephone conversations , arriving at the conclusion that , despite their coded language , they confirmed the existence of a conspiracy between the applicant and other defendants . The conviction was also confirmed by the statements of certain other witnesses , as well as by the results of searches of the GPE homes .

On DATE the applicant appealed against the conviction , calling into question the factual findings of the lower court . He also complained that the court had confirmed his conviction only on the basis of the transcripts of the taped conversations , without listening to the actual recordings .

On DATE ORG , after hearing the applicant and other defendants , some of whom maintained their confessions in exchange for a plea bargain with the prosecution , and having reviewed other case materials , upheld the applicant ’s conviction . As regards his complaint about the transcripts of the taped conversations , the appellate court dismissed it , stating that the applicant should have raised it at the first - instance hearing .

The applicant ’s appeal on point of law of DATE , in which he reiterated the arguments that he had made before the appellate court , was dismissed as inadmissible by ORG of GPE on DATE . The applicant was thus sentenced to DATE in prison , which started to run from DATE of his arrest on DATE . He was placed in NORP no . CARDINAL prison ( “ FAC ” ) .

According to the applicant ’s medical file , he is suffering from glomerulonephritis , nephrosclerosis , chronic renal failure , viral hepatitis C ( ORG ) , chronic bronchitis and arterial hypertension . His renal disorders developed gradually , as a result of a traffic accident in DATE , which caused septicaemia ( blood poisoning ) . Before the applicant was detained he had already been diagnosed with those renal disorders at advanced stages and , according to his medical file , underwent several courses of symptomatic urological treatment .

NORP The prison authority took charge of the applicant ’s health problems for the first time on DATE . Notably , in order to have his state of health assessed , he was taken on DATE to ORG of ORG for blood biochemical and urine analysis .

On the basis of the results of those tests , the prison authority then transferred the applicant , on DATE , from FAC to ORG ( “ the prison hospital ” ) , where he received comprehensive medical treatment over DATE , until DATE . This included various laboratory tests and examinations ( blood and urine tests , electrocardiography , chest X - ray ) , repeated consultations with medical specialists , including a nephrologist who had been summoned by the prison authority from a civil hospital ( this medical specialist examined the applicant on DATE and CARDINAL and DATE ) , and the prescription of appropriate drugs ( antibiotics and antihypertensive and anti - anaemic agents ) for nephrological / urological problems , ORG and arterial tension .

In addition , the prison authority , on the advice of a medical panel which had examined the applicant on DATE , repeatedly approached the medical authorities of various civilian hospitals DATE , seeking special tests , such as for creatinine and urea levels in the applicant ’s blood and an ultrasound scan of his abdominal cavity .

On DATE the applicant ’s doctor at the prison hospital opined that when his current course of treatment was complete the applicant could be discharged back to FAC , where he was to continue receiving medication .

Subsequently , the applicant had a medical check - up CARDINAL DATE and DATE and another DATE and DATE , at ORG ( “ the ORG ” ) . Reports on both examinations confirmed that the applicant ’s condition was stable and that he required long - term out - patient treatment under the supervision of a nephrologist , cardiologist and hepatologist .

On DATE the applicant was again admitted to the prison hospital , where he remained until DATE . The in - patient treatment included blood and urine tests , chest X - ray , abdominal ultrasound scan and consultations with a cardiologist . When he was discharged the doctor in charge of the applicant recommended that the patient continue treatment with the relevant drugs on an out - patient basis under the supervision of medical specialists .

On DATE the applicant was placed on an emergency basis in the intensive care unit of the prison hospital , with a diagnosis of possible food poisoning ; he was also suffering from anuria ( non - passage of urine ) , his condition being described as serious from the nephrological / urological point of view ( “ the relapse of DATE ” ) . The applicant ’s medical file confirms that comprehensive medical treatment was administered to him there , as a result of which his condition improved ( the symptoms of anuria disappeared ) , and on DATE he was transferred from intensive care to the ordinary therapeutic department of the prison hospital .

As disclosed by his medical file , the applicant underwent again , during his second stay in the prison hospital , the relevant medical tests and was examined by various medical specialists , including a nephrologist summoned by the prison authority from a civilian urology hospital ( this examination took place on DATE ) . The nephrologist prescribed the applicant treatment with CARDINAL different types of antibiotic , hypolipidemic and antihypertensive drugs ; the prison hospital immediately provided the applicant with this medication in the necessary dosages .

On DATE , after several medical specialists , including a nephrologist from a civilian hospital whose assistance had been requested again by the prison authority , had confirmed that the applicant ’s condition had stabilised , he was discharged back to FAC , where he continued to receive the prescribed medication on an out - patient basis .

At the applicant ’s request , experts from ORG ( “ the ORG ” ) conducted additional medical examinations DATE . Their conclusions ( “ the medical conclusions of DATE to DATE ” ) disclosed that the applicant ’s kidney conditions , which could be qualified as progressive serious disorders , had slightly progressed in comparison to the previous medical examinations ; the recommendation was that the applicant should continue treatment under the permanent supervision of a nephrologist .

On DATE the ORG prison authorities informed the applicant ’s advocate that its medical staff did not include a nephrologist . However , the prison undertook that in the event of deterioration of the applicant ’s condition he would immediately be transferred to an appropriate medical establishment .

On DATE the ORG , allowing the applicant ’s request , instructed the Government under Rule CARDINAL of ORG to place the applicant in a medical establishment capable of providing adequate treatment for his various health problems ; the Government were further invited to provide the ORG with information regarding the capability of the prison hospital in that regard .

On DATE the Government , as well as giving an account of the treatment administered to the applicant prior to the relapse of CARDINAL DATE , also informed the ORG that , after the indication of the medical interim measure under LAW , the applicant was transferred to the prison hospital on DATE . As disclosed by the relevant excerpts from his medical file , he received a comprehensive medical examination there , which included numerous laboratory tests ( blood , urine , ultrasound - based diagnostic tests of stomach , kidney and heart , chest X - ray and others ) , repeated consultations with various specialists ( including a nephrologist from a civilian hospital who examined the applicant on DATE ) who prescribed him ten types of medication for his renal , cardiac and hepatic conditions .

On DATE the ORG updated the ORG on the treatment provided to the applicant in the prison hospital . The medical file confirmed once again that the applicant had been regularly examined by various specialists , including different nephrologists from civilian hospitals , who had examined the applicant on DATE , DATE and DATE ; a cardiologist and infection specialist , who prescribed specific treatment for him ; the implementation of that treatment was then supervised on a DATE basis by a general practitioner at the prison hospital ( “ the GP ” ) . According to the ORG ’s medical log , which closely monitored the fluctuations in applicant ’s state of health from the date of his admission to the prison hospital on DATE until DATE , his condition remained stable overall , except for recurrent headache and general weakness . The applicant was treated with CARDINAL types of prescribed anti - hypertension , cardiological , hepatoprotective , antiinflammatory , urological , nephrological , antioxidant , beta - adrenoreceptor and sedative medication , as well as with various vitamins . In addition , as disclosed by the medical file , on DATE the applicant gave his consent in writing to start receiving anti - ORG treatment with the powerful anti - viral agents GPE and ORG .

In the light of the above - mentioned information , the ORG submitted that they had taken all necessary measures for the protection of the applicant ’s health in prison , and asked the ORG to lift the interim measure previously indicated on DATE .

By letters dated CARDINAL DATE and DATE , the applicant objected before the ORG to the consultations provided by a nephrologist , stating that they were too infrequent . Notably , referring to the relevant records in his medical file , he complained that DATE and DATE , he had been examined by that specialist on CARDINAL occasions , with the intervals varying from DATE . Acknowledging that the prison hospital had started administering antiHCV and other types of drugs , the applicant nevertheless claimed that no adequate treatment had been provided for his kidney problems . Furthermore , certain anti - HCV drugs , such as ORG , had , he stated , had a deleterious effect on his kidneys . Relying on these arguments , the applicant claimed that only a civilian hospital , where he could benefit , according to the medical conclusions of DATE , from the permanent supervision of a nephrologist , could provide adequate treatment for him .

NORP In support of the above allegations the applicant submitted more recent excerpts from his medical file , giving an account of the treatment provided for him in the prison hospital from DATE . Those documents disclosed that his overall condition had remained stable during that period . According to the ORG ’s opinion dated DATE , given the chronic nature of the applicant ’s kidney problems and that his condition was not acute , nor was he experiencing deterioration , there was no need for specific treatment such as haemodialysis at a specialist nephrology hospital . As to his ORG , despite the provided anti - viral medication , there continued to be a virological response to the blood tests conducted ( SVR ) .

On DATE the ORG , in the light of the additional information provided by the parties , decided to lift the interim measure previously indicated on DATE .

Despite the fact that the interim measure was lifted , of which both parties were duly informed by ORG DATE , the relevant authorities did not remove the applicant from the prison hospital . Thus , at the time of the submission of the ORG ’s comments of CARDINAL DATE ( see paragraph CARDINAL above ) , the applicant was still undergoing , and had been since DATE , treatment in that hospital .

Pursuant to LAW ( a ) of the ORG , a court could suspend a prison sentence in view of a convict ’s grave state of health , if his or her illness impeded the proper execution of the sentence , pending the convict ’s full or partial recovery .

Article CARDINAL of the ORG provided for a possibility of early release by a court on account of a convict ’s grave or incurable illness , which should be established by a qualified medical opinion .

Article CARDINAL of the General Administrative Code stated that an individual could sue a ORG agency for damage under the rules on liability for civil wrongs contained in LAW . LAW entitled an individual to request compensation for non - pecuniary damage caused in respect of damage to his or her health .

Pursuant to ORG and CARDINAL(CARDINAL ) of LAW , an individual was entitled to request through a court that a ORG agency be ordered to undertake a certain action or , to the contrary , to refrain from taking an action , whether by adopting a written administrative act or without it , if such a request was aimed at the protection of the individual ’s rights or legitimate interests .

On DATE the Prison Code entered into force , abolishing the previous Imprisonment Act of DATE ( for the relevant provisions of that Act , see PERSON v. GPE , no . CARDINAL , § DATE , CARDINAL DATE ) and introducing , inter alia , a new and detailed procedure for filing by detainees , both accused and convicted persons , of complaints to and against the prison authority .

DATE , which provided for the right to health care in prison , read as follows :

Article CARDINAL - Right to Health Care

“ CARDINAL . A [ detained ] accused / convict shall have the right to use all the necessary medical facilities . All types of medical treatment which are permitted in the given establishment should be made accessible to [ a detainee ] . If so requested , [ a detainee ] should be entitled to obtain at his or her own expense more expensive or similar medication or other type of medical treatment than those procured by the relevant establishment . In the event of a reasoned request , and with the permission of the Head of the [ ORG , [ a detainee ] may invite a civilian doctor at his or her own expense .

Immediately upon entering an establishment , a [ detainee ] must undergo a medical examination . The relevant record shall be drawn up and added to the [ detainee ’s ] personal medical file . ”

By virtue of LAW , a detainee , acting either in person or through his lawyer or a representative in law , may submit a written complaint against any action or omission by a staff member of the relevant establishment , a legal decision or any other matter which appears to constitute a breach of a right guaranteed to him or her by LAW . Article CARDINAL specified that , upon being placed in the establishment , a detainee must immediately be informed by the authorities of his or her right to submit such a complaint .

Pursuant to ORG and CARDINAL , a complaint should initially be addressed to the hierarchical superior of the prison officer or agency who has allegedly breached the detainee ’s right in question or to ORG ( this group forms , according to LAW , part of ORG and was established in order to monitor allegations of ill - treatment in prison ) . In order to guarantee that a complaint is drafted in a proper manner , the detainee may solicit the services of a lawyer , including a public lawyer financed by the ORG . A detainee who does not have a sufficient understanding of the NORP language shall be assigned an interpreter free of charge .

Article CARDINAL states that a detainee ’s complaint must be delivered to the addressee within TIME .

Article CARDINAL further states that if an ordinary complaint is addressed to the governor of an establishment , he or she shall examine and respond to it within DATE , which period may be extended , in exceptional circumstances , DATE . If a complaint is addressed to the Head of ORG , that authority has DATE to examine it , which period may also be extended , as an exception , DATE . In any event , the detainee must be duly warned of any extension of the ordinary time - limit .

Pursuant to Article CARDINAL , a complaint raising allegations of torture , inhuman or degrading treatment is considered to be an extraordinary complaint which should be examined by the relevant authority “ immediately ” . In addition to examining it , the governor of the establishment in question , as well as ORG , must be informed of that complaint within TIME after it has been submitted .

Article CARDINAL requires that the relevant authority ’s response to a detainee ’s complaint , whether positive or negative , must be duly reasoned ; every specific issue raised by the detainee must be fully addressed . If the detainee is not satisfied with that response , he or she may , under Article CARDINAL , contest it before a court , initiating the relevant administrativelegal proceedings .

The excerpts from the above - mentioned ORG , describing the capacity of the new prison hospital , read as follows :

“ CARDINAL . The Medical establishment for prisoners in GPE ( PERSON ) , located within the perimeter of the LAW penitentiary complex , represents a great improvement on FAC visited by the ORG in DATE and DATE . The delegation gained a globally positive impression of this new facility , inaugurated at DATE but in fact functioning fully only for DATE . With an official capacity of CARDINAL beds , the establishment was accommodating CARDINAL sick prisoners at the time of the visit . All the patients were men .

There were CARDINAL wards : surgery , psychiatry , infectious diseases , internal medicine and intensive care / reanimation . Further , there was an admissions unit , an X - ray unit , a dental office , a laboratory , rooms for endoscopy and physiotherapy , and a pharmacy .

The diagnostic equipment was modern and functional , and the establishment offered an adequate range of hospital treatments for prisoners . It was also possible to transfer sick prisoners to other hospital facilities for diagnostic treatments which were not available at the Medical establishment ( an average of CARDINAL transfers per week ) .

Clinical staff were sufficient in numbers ( a total of CARDINAL doctors and nurses ) and appropriately trained . Further , a number of outside medical consultants ( neuropsychiatrist , neurosurgeon , etc . ) held periodic surgeries . ...

As regards material conditions in the ORG rooms , there was adequate access to natural light , artificial lighting and ventilation , and the rooms were in a good state of repair and cleanliness . That said , the rooms were rather cramped ( e.g. CARDINAL prisoners in a room measuring CARDINAL m² , including a sanitary annexe ) . ”


DE PONTE NASCIMENTO v. THE UNITED KINGDOM

The applicant , PERSON , is a NORP national , who was born in DATE , and lives in GPE . He is represented before the ORG by PERSON PERSON , a solicitor , and Mr PERSON , counsel , both practising in GPE . The respondent Government are represented by their agent , PERSON of ORG , GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE , the applicant was knocked off his bicycle by a car . He started proceedings against the driver of the car on DATE . The applicant returned to live in FAC . On DATE , ORG ordered the applicant to file further medical evidence in support of his claim within DATE , failing which any particulars of injury not substantiated by a medical report would be struck out . Further medical evidence was filed on behalf of the applicant , some within DATE and some later . The defendant to the proceedings made an application that the particulars of injury be struck out for failure to comply with the order of DATE . The application was heard on DATE by GPE Judge PERSON , who struck out the particulars of injury . The practical effect of striking out the particulars of injury was that the applicant could no longer claim general damages or damages for loss of earnings , which represented by far the major part of his claim .

The applicant appealed against the decision of GPE Judge PERSON . On DATE , the appeal was heard by PERSON . She dismissed the appeal . The applicant applied to ORG for leave to appeal .

The hearing began on DATE and continued on DATE . ORG reserved its judgment . On DATE , ORG handed down a judgment refusing permission to appeal . Each of the CARDINAL Lord Justices of Appeal gave a separate judgment .

Sir PERSON considered that the Recorder had applied the proper test and exercised her discretion correctly , and that permission to appeal should accordingly be refused .

Lord Justice PERSON considered that the District Judge and the ORG had failed to apply the relevant legal principles correctly , and that permission to appeal should be granted , because otherwise no court would have considered the exercise of its discretion on correct principles .

Lord Justice PERSON considered that the Recorder had identified the applicable principles but failed to apply them , but that this failure did not raise any question of principle within the terms of either paragraph CARDINAL of the practice direction of CARDINAL DATE or paragraph CARDINAL of the consolidated practice direction of CARDINAL DATE ( see below ) . He further considered that the case was not one which for some other reason ( practice direction of CARDINAL DATE ) , or some other compelling reason ( consolidated practice direction of DATE ) , should be considered by ORG . Lord Justice PERSON stated at pp . CARDINAL - CARDINAL :

“ Personal injury litigation should not be conducted on the basis that the rules peculiar to it can be treated as of no importance . To do so is to put at risk CARDINAL of the objects which those rules are intended to promote ; that is to say , that the medical evidence on which the plaintiff relies can be properly assessed by the defendant at as early a stage as possible . Failure to make early disclosure of the plaintiff ’s medical condition puts a fair trial at risk . I can see no basis upon which to hold that justice demands that the defendant should suffer the risk that any trial which could now be held would be less than fair . On the contrary , it seems to me that the balance of justice lies in upholding the orders which have been made . ”

Lord Justice PERSON concluded that permission to appeal should be refused . He declined to take a view on the merits which he regarded as finely balanced .

On DATE , Lord PERSON , Master of the Rolls , issued a practice direction relating , inter alia , to leave to appeal to ORG ( reported at [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) . Practice Directions do not have formal legal effect but are followed by the judiciary , representing as they do the collective view of senior judges and , in time , the terms of Practice Directions become embodied in decisions of the higher courts , which do have binding effect . Paragraph CARDINAL of the practice direction provided , under the heading “ The General Test for Leave ” :

“ The general rule applied by ORG , and thus the relevant basis for first instance courts deciding whether to grant leave , is that leave will be given unless an appeal would have no realistic prospect of success . ”

Paragraph CARDINAL of the practice direction contained new guidance , in the following terms ( so far as material ) :

“ Where there has already been CARDINAL unsuccessful appeal to a court ... against the decision being challenged , for example from a District Judge to a Circuit Judge or from a Master to a ORG Judge , and the application is for permission for a further appeal to ORG , a more restrictive approach to the test for permission to appeal should be adopted . Permission should be granted only if the case raises an important point of principle or practice or the case is one which for some other compelling reason should be considered by ORG . ”

On DATE , ORG issued a practice direction consolidating , with some amendments , all of the principal practice directions which applied to proceedings in ORG ) . Paragraphs CARDINAL of the practice direction of CARDINAL DATE were reproduced in similar terms in the consolidated practice direction , with CARDINAL significant change : in paragraph CARDINAL ( new paragraph CARDINAL ) , the word “ important ” was omitted from the final sentence .


The applicant , Mr PERSON , is a GPE national who was born in DATE and lives in a village near GPE , GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The applicant was a Regional Organiser for the British National Party ( “ NORP ” : an extreme right wing political party ) . DATE and DATE he displayed in the window of his first - floor flat a large poster ( QUANTITY ) , supplied by the ORG , with a photograph of ORG in flame , the words “ NORP out of GPE – Protect the NORP People ” and a symbol of a crescent and star in a prohibition sign .

The poster was removed by the police following a complaint from a member of the public . The following day a police officer contacted the applicant by telephone and invited him to come to the local police station for an interview . The applicant refused to attend .

The applicant was then charged with an aggravated offence under section CARDINAL of LAW CARDINAL ( see below ) , of displaying , with hostility towards a racial or religious group , any writing , sign or other visible representation which is threatening , abusive or insulting , within the sight of a person likely to be caused harassment , alarm or distress by it . The applicant pleaded not guilty and argued , in his defence , that the poster referred to NORP extremism and was not abusive or insulting , and that to convict him would infringe his right to freedom of expression under LAW . On DATE he was convicted of the offence by District Judge PERSON at ORG , and fined GBP CARDINAL .

The applicant appealed to ORG , which dismissed his appeal on DATE . Lord Justice Auld held that the poster was “ a public expression of attack on all NORP in this country , urging all who might read it that followers of the NORP religion here should be removed from it and warning that their presence here was a threat or a danger to the NORP people ” .

The applicant was charged with the offence of causing alarm or distress contrary to section CARDINAL(CARDINAL)(b ) of LAW DATE , aggravated in the manner provided by sections CARDINAL and CARDINAL of ORG DATE ( as amended by section CARDINAL of the Anti - terrorism , LAW DATE ) . LAW provides :

“ ( CARDINAL ) A person is guilty of an offence if he ; ... ( b ) displays any writing , sign or other visible representation which is threatening , abusive or insulting , within the hearing or sight of a person likely to be caused harassment , alarm or distress thereby .

( CARDINAL ) An offence under this section may be committed in a public or a private place ...

( CARDINAL ) It is a defence for the accused to prove – ( a ) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment , alarm or distress , or ( b ) that he was inside a dwelling and had no reason to believe that the words or the behaviour used , or the writing , sign or other visible representation displayed would be heard or seen by a person outside that or any other dwelling , or ( c ) that his conduct was reasonable ” .

The DATE Act further provides , in section CARDINAL ) :

“ A person is guilty of an offence under section CARDINAL only if he intends ... the writing , sign or other visible representation to be threatening , abusive or insulting , or is aware that it may be threatening , abusive or insulting ... ”

The CARDINAL Act , as amended , introduced a statutory aggravation to a number of offences , including LAW , carrying with it higher maximum penalties . According to sections CARDINAL(CARDINAL)(b ) and CARDINAL(CARDINAL)(c ) of LAW , an offence under LAW is “ racially or religiously aggravated ” if it is “ motivated ( wholly or partly ) by hostility towards members of a racial or religious group based on their membership of that group ” .


Violation of Article 8 - Right to respect for private and family life

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

On DATE the applicant was remanded in custody . The grounds for this decision are unknown , since the applicant has not produced a copy of the order .

On DATE ORG ( FAC ) extended the applicant ’s detention . On DATE the court decided to discontinue the criminal proceedings against him . The court held that the applicant at the time of the commission of the offence had been incapable of recognising its significance or controlling his conduct because of his mental illness . The applicant had been diagnosed with schizophrenia ( paranoid subtype ) .

On DATE the applicant was placed in a mental hospital .

On DATE ORG decided to extend the applicant ’s detention at the mental hospital . The court held that he was still suffering from severe schizophrenia .

On DATE and DATE ORG decided to discontinue the criminal proceedings against the applicant due to his mental illness . The applicant ’s state of health was confirmed by a medical certificate of DATE .

In the light of the applicant ’s submissions , it is impossible to establish the facts relating to his detention .

On DATE the ORG received a letter from the applicant dated DATE . The letter was sent while the applicant was detained in FAC PERSON ) . It bears the following stamp : “ ORG in Świebodzin , censored ” ( FAC , FAC ) , a handwritten date : “ CARDINAL ” and an illegible signature .

NORP The relevant domestic law concerning censorship of GPE correspondence is set out in the ORG ’s judgment in the case of Kliza v. GPE , no . CARDINAL , § § DATE , DATE .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants , PERSON and PERSON , were born in DATE and DATE and live in GPE and GPE , GPE , respectively . They were represented before the ORG by PERSON , a lawyer practising in GPE , GPE and in ORG , GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON PERSON of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the ORG gave an expropriation decision and took over a plot of land ( no . FAC which belonged to the applicants ' predecessor in title . Later on , the plot in question was divided into CARDINAL plots ( nos . CARDINAL , CARDINAL/CARDINAL , DATE and DATE ) .

On DATE the ORG gave an expropriation decision and took over another plot of land ( no . CARDINAL ) . Later on , that plot was divided into CARDINAL plots ( nos . ORG , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) .

On DATE the applicants ' predecessor in title sold another plot ( no . CARDINAL/CARDINAL ) to ORG .

On DATE the applicants ' predecessor in title sold CARDINAL other plots ( nos . CARDINAL and CARDINAL ) to ORG .

On DATE the applicants ' mother was declared as a legal successor of the abovementioned plots . In DATE the domestic authorities abandoned the land development plans for which the plots in question had been expropriated .

On DATE the applicants ' mother lodged a request with ORG for restitution of the plots nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL . On a later unknown date the case was transferred to ORG . On DATE the applicants ' mother repeated her request for restitution in respect of all plots which had been expropriated in DATE .

On DATE the Head of ORG granted her request in respect of the plot no . CARDINAL/CARDINAL .

On DATE the Head of ORG refused her request in respect of the plots nos . MONEY , CARDINAL/CARDINAL and CARDINAL . On DATE the Gdańsk Governor upheld this decision . On DATE ORG quashed both decisions in respect of the plot no . CARDINAL and dismissed the remainder of her appeal ( in respect of the plots nos . QUANTITY and CARDINAL/CARDINAL ) .

On DATE , after the delivery of the judgment of ORG , the applicants ' mother repeated her request for recovery of her plot no . CARDINAL ( at that time nos . MONEY , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) .

On DATE the Gdynia Mayor gave a decision whereby it divided the plot no . CARDINAL into CARDINAL separate plots ( nos . CARDINAL and CARDINAL ) . On DATE the Gdynia Mayor held an administrative hearing in respect of the plots nos . CARDINAL/CARDINAL and CARDINAL .

On DATE the applicants ' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the GPE Mayor . On DATE the Gdańsk Governor dismissed her complaint finding that the PERSON had properly informed her in DATE about the delay in the proceedings caused by difficulties in appointing an expert with a view to estimating the value of the plots . On DATE the applicants ' mother withdrew her complaint to ORG about the inactivity of the administrative authorities .

On DATE the Gdańsk Governor disqualified the PERSON from dealing with the case and transferred it to the Gdańsk Mayor .

On DATE the applicants ' mother lodged a complaint with ORG about inactivity on the part of the Gdańsk Mayor . On DATE the court declared her complaint inadmissible since had failed to lodge , first , a hierarchical complaint .

On DATE the ORG Mayor informed the applicants ' mother about further delay in the proceedings and that they would end in DATE .

On DATE the applicants ' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdańsk Mayor . In reply , on DATE the Gdańsk Governor ordered that a decision should be given within DATE .

On DATE the Gdańsk Mayor stayed the proceedings in respect of the plots nos.CARDINAL/CARDINAL , CARDINAL and CARDINAL . On DATE the Gdańsk Governor quashed the abovementioned decision .

On DATE the Gdańsk Governor ordered the Gdańsk Mayor to issue a decision on the merits within DATE from the date of his decision .

On DATE the Gdańsk Mayor decided to restore the plots nos . CARDINAL/CARDINAL and CARDINAL to the applicants ' mother and refused the request in respect of the plot no . CARDINAL . On DATE the Gdańsk Governor quashed the abovementioned decision and remitted the case .

On DATE the applicants ' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdańsk Mayor . On DATE the Gdańsk Governor dismissed her complaint , finding no inactivity on the Mayor 's part .

The applicants ' mother died in DATE . By a letter of CARDINAL DATE the first applicant informed the Gdańsk Mayor about the applicants ' intention to continue the proceedings .

On DATE the first applicant was requested to submit an official copy of the court 's decision ( “ odpis ” ) declaring that the applicants were legal successors of their mother .

On DATE the applicants submitted to the Gdańsk Mayor a photocopy of ORG decision of CARDINAL DATE declaring them their mother 's legal successors and a photocopy of a power of authority to act on her behalf which the first applicant had given to PERSON on DATE .

On DATE PERSON requested the PERSON to enforce the judgment of ORG of DATE . There was no reply to that letter .

On DATE the Gdańsk Mayor informed PERSON that the photocopies submitted to the case file could not be treated as evidence . He referred to the case - law of ORG , according to which documents submitted merely in photocopy form could not be regarded as having probative value . She was also informed that it was possible to show the originals to the administrative authority and that they would be certified on the spot . A copy of that letter was also sent to the applicants .

The relevant domestic law concerning inactivity on the part of administrative authorities is set out in PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON in GPE .

Since DATE the applicant , her sister PERSON and their mother PERSON were the joint owners of a plot of land situated in GPE . The lease of the plot was managed by a partnership consisting of the applicant , PERSON , S. and a limited company ( S company ) . Partners of the S company were also the applicant , PERSON DATE , serious arguments arose between the applicant on one side and her mother and sister on the other side about questions of the proper administration of the partnership , in particular in respect of taxation matters .

By letter dated DATE , the applicant filed an action with ORG ( ORG ) , sitting as a court competent in commercial matters ( PERSON für GPE ) , against PERSON the S company ( hereafter “ the defendants ” ) . According to the Government ’s submissions – which are contested by the applicant – ORG received the action on DATE . The applicant asked ORG to prohibit the defendants from excluding her from the management of the business . She also demanded that the defendants surrender all DATE accounts since DATE and that they distribute the net profits accordingly . The applicant alleged that the defendants had failed to consult her about the management . She further complained about mistakes in the management , in particular about the fact that the defendants insisted on paying business taxes without being obliged to do so .

On DATE the applicant ’s counsel stated that the applicant was willing to reach a friendly settlement .

On DATE , during a first oral hearing , the parties declared that they were willing to reach an understanding and only thereafter hold another hearing .

On DATE the applicant ’s counsel informed ORG that negotiations on a settlement had not taken place .

On DATE , during a further hearing , ORG continuing efforts to induce the parties to agree on a friendly settlement failed . However , PERSON agreed to submit all documents on the DATE accounts since DATE to the applicant ’s counsel for inspection .

On DATE the applicant ’s counsel informed ORG that S. had failed to comply .

On DATE ORG scheduled an oral hearing which was subsequently postponed on the applicant ’s request .

On DATE agreed to submit the relevant documents on the DATE accounts since DATE to the applicant ’s counsel .

On DATE ORG instructed the defendants to submit the partnership agreements and the DATE accounts since DATE and to disclose the use of the reported profits . It further instructed the applicant to quantify her claims .

In DATE and DATE and DATE ORG called for the case - file of a separate law suit which the applicant conducted against the partnership ’s former tax consultant . On DATE according to the ORG ’s submissions , which are contested by the applicant – the defendants submitted the DATE balances and reported on the use of the profits .

On DATE the presiding judge noted that “ particularly on emotional grounds , the sensible pursuit of progress in this case ” was not possible before a final decision had been reached in the proceedings against the tax consultant .

On DATE the applicant complied with the conditions imposed in the order of CARDINAL DATE . In DATE and DATE , DATE and DATE ORG filed for further information on the proceedings against the tax consultant .

On DATE ORG scheduled a further hearing for DATE . On DATE that court decided to schedule a further hearing only after the tax authority ’s decisions on the partnership ’s tax liability for DATE had become final . On DATE the applicant ’s counsel informed the court that the tax decisions had become final . On DATE , DATE and CARDINAL DATE the applicant ’s counsel requested ORG to schedule a new oral hearing . On DATE ORG scheduled an oral hearing for DATE , noting that the delay was owed to the chamber ’s excessive workload during DATE .

On DATE , following the oral hearing , ORG delivered a partial decision ordering the defendants to pay ORG to the applicant and to grant her a restricted power over the commercial partnership ’s bank accounts .

NORP In a letter directed to the presiding judge of ORG , the presiding judge of ORG expressed his regrets of the fact that his attempts to reconcile the parties had failed .

On DATE the defendants lodged an appeal against ORG partial decision .

On DATE ORG ( ORG in GPE ) , having received submissions from both parties , scheduled an oral hearing for CARDINAL DATE .

On DATE the applicant informed ORG that she had changed counsel .

On DATE and CARDINAL DATE ORG postponed the hearing , once following the applicant ’s request and a second time because of the rapporteur ’s illness .

On DATE ORG further postponed the hearing on the ground that the rapporteur had been seconded to the eastern part of GPE .

On DATE , following an oral hearing on DATE , ORG of Appeal quashed ORG partial decision and rejected the applicant ’s claims .

On DATE ORG scheduled an oral hearing for DATE . On DATE and DATE , following requests from the defendants , ORG postponed the hearing .

On DATE ORG , once again , tried to induce the parties to reach a friendly settlement . On DATE the parties informed ORG that no settlement had been reached .

On DATE ORG ordered the preparation of an expert opinion as to whether the DATE accounts for DATE of both the commercial partnership and ORG had been prepared in accordance with the rules on accounting and balances . It found that the DATE balances did not form a sufficient basis to calculate the applicant ’s possible net profit claims .

On DATE , upon payment of the advance costs , ORG sent the files to ORG for the nomination of a suitable expert .

On DATE the applicant ’s counsel informed ORG that he had relinquished his mandate .

On DATE ORG named an expert .

On DATE according to the Government ’s submissions – the presiding judge of ORG orally informed the applicant that he would only commission the expert after she had nominated a new counsel .

On DATE the applicant informed ORG that she had mandated new counsel .

On DATE ORG ordered the parties to pay further advance costs .

NORP On DATE ORG appointed the certified accountant NORP to prepare the expert opinion .

On DATE , after having received the necessary documents towards DATE , NORP submitted his report .

On DATE , following the submissions of both parties and requests filed by the defendants to postpone the hearing , ORG held an oral hearing and asked NORP to amend his report in view of supplementary documents to be submitted by the defendants .

On CARDINAL DATE the applicant lodged a criminal charge against the defendants for withholding documents , which led to a search of S. ’s apartment .

On CARDINAL DATE – according to ORG submissions – ORG requested ORG to transmit the case - file . On DATE the presiding judge of ORG informed the parties that he was prevented from pursuing proceedings as ORG had not yet returned the case - file .

On DATE ORG asked NORP to resume his work on the amendment of his expert report .

On DATE the applicant addressed a letter to the President of ORG , referring to the excessive length of proceedings and requesting that her case be given priority .

On DATE the presiding judge of ORG informed the parties that he was unable to proceed because the files had not yet returned from the President ’s office . On DATE the President informed the applicant that he could not find any delay in proceedings attributable to the court .

On DATE the expert informed ORG that the defendants had not submitted all necessary documents .

DATE . On DATE , during an oral hearing , the defendants stated that they would submit the requested documents at DATE . ORG scheduled a date to proclaim a decision for CARDINAL DATE .

On DATE the applicant requested the oral hearing to be reopened and announced new applications .

On DATE ORG re - opened proceedings and scheduled a hearing for DATE . On DATE , following the defendant ’s request of CARDINAL DATE , ORG postponed the hearing to DATE .

On DATE ORG suggested another friendly settlement and scheduled a final hearing for DATE .

On DATE , following the defendant ’s request , ORG postponed the hearing to DATE . Following that hearing ORG announced that it would issue a decision on DATE .

On DATE ORG received NORP ’s amended expert opinion .

On DATE ORG ordered the parties to file their comments on the report and scheduled to give a decision on DATE .

On DATE ORG issued a judgment combined with a judgment on the basis of the cause of action ( ORG ) , concluding that the applicant had effectively revoked the managerial rights of the defendants , that the defendants – in collaboration with the applicant – were obliged to draw up the DATE accounts from DATE and rejecting the majority of the applicant ’s further claims . In his reasoning , the presiding judge noted that the parties conducted their arguments since DATE “ with consistent stubbornness and with an uncompromising attitude ” the like of which he – the presiding judge DATE had never before experienced in his professional career .

On DATE and CARDINAL DATE all parties lodged their appeals . On DATE , having received submissions from all parties , ORG scheduled a hearing for DATE . On DATE , following a request by the applicant , ORG postponed the hearing to DATE .

On DATE ORG suggested that the parties should seek a separation . At the end of the hearing , following the request of all parties , the court decided that proceedings should only be continued on request of CARDINAL of the parties .

On DATE , following the defendants’ application in a separate proceeding , ORG ( ORG ) ordered that the piece of land administered by the commercial partnership be sold by compulsory auction with a view to partitioning the property concerned ( ORG ) .

On DATE , following the applicant ’s request to continue proceedings , ORG scheduled an oral hearing for DATE which was later postponed on the GPE request to CARDINAL DATE .

On DATE ORG announced its intention to suspend proceedings until the termination of the auction proceedings , against which the applicant protested .

On DATE ORG passed an order to suspend the proceedings until a final decision had been reached in the auction proceedings . ORG found that the outcome of at least part of the lawsuit depended on the conclusion of these auction proceedings . On DATE and DATE and DATE and DATE ORG rejected the applicant ’s requests to resume proceedings on the ground that the auction proceedings had not yet been terminated .

On DATE the applicant raised a constitutional complaint . She complained that despite the undue length of the proceedings , ORG refused to resume them . She also gave a chronological account of the proceedings and maintained that their excessive length had violated her rights under LAW .

On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant ’s complaint .

On DATE ORG , in separate proceedings , rejected the applicant ’s final complaint against the compulsory sale of the plot of land . On this occasion , ORG was sitting as the same chamber as in the above mentioned proceedings .

On DATE passed away .

By an undated letter dispatched on DATE the presiding judge of ORG referred to this ORG ’s decision on the admissibility of the present complaint and asked the applicant if she wished to pursue the proceedings .

DATE . By letter of CARDINAL DATE the applicant insisted that ORG was legally obliged to revoke its suspension order of CARDINAL DATE before pursuing proceedings .

On DATE ORG lifted its suspension order and scheduled an oral hearing for DATE .

On DATE , following the oral hearing , ORG suspended the proceedings against S. because of the latter ’s death . At the same time , ORG issued CARDINAL pages of legal assessment of the case and invited the parties to submit any comments they would like to make within DATE . A new hearing would be scheduled after expiry of this time - limit . The proceedings are still pending before ORG .

On DATE , upon the applicant ’s complaint , ORG revoked the auction order . On DATE this decision was set aside by ORG ; a further appeal was dismissed on DATE by ORG .

The applicant ’s various further motions aimed at the prevention of the sale of the plot , including a further constitutional complaint , remained unsuccessful .

On DATE ORG ordered the auction of the plot of land . It was purchased by LAW The applicant ’s complaints remained unsuccessful ( see paragraph CARDINAL above ) .

The relevant Rules of Civil Procedure on the suspension of proceedings read as follows :

“ The court may order , if the decision of the legal dispute wholly or partly depends on the existence or non - existence of a legal relationship which forms the subject of another pending legal dispute ... that the proceedings be suspended until the other legal dispute is settled ... ”

“ The court may lift its orders of suspension ... ”

“ Suspended or interrupted proceedings are resumed by filing a statement with the court which is then served on the other party . ”

“ A decision by which the suspension of proceedings is ordered or denied on the ground of provisions of this title ... may be appealed ... ”

“ ( CARDINAL ) Against the decisions of the courts of appeal , no appeal is admissible ... ”