SCEA FERME DE FRESNOY v. FRANCE [Extracts]

The applicant company , ORG , is an agricultural partnership with unlimited liability ( société civile d’exploitation agricole ) . Its registered office is situated at FAC in the administrative district of FAC and its manager , Mr PERSON , acts on its behalf . It was represented before the ORG by Mr PERSON , of FAC . ORG were represented by their Agent , PERSON , Director of ORG at ORG .

On DATE counsel for the applicant company informed the ORG that Mr PERSON , CARDINAL of the partners in the business , had died and that his widow , together with his son , Mr PERSON , who was already the manager , were now the only shareholders . Counsel indicated that Mr PERSON and his mother had expressed their wish to continue the proceedings before the ORG .

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

Mr PERSON runs a CARDINAL-hectare farm in the administrative district of GPE ( département of ORG ) . His father was joint manager until his death . The farm was acquired in DATE following the expropriation of a previous agricultural holding based in Lognes .

The central part of the farm consists of various farm buildings around an inner courtyard and includes a chapel and a chapter house dating from the twelfth and thirteenth centuries , which are the remains of the NORP commandery of GPE . Both of those edifices are tightly integrated into the surrounding buildings .

In a letter of CARDINAL DATE , the NORP prefecture offered a ORG grant for the restoration of the chapel and chapter house . The proposed grant was to cover PERCENT of the initial work . The applicant company declined the offer in view of the excessive share of the cost that it would have to bear .

By a decision of the prefect dated DATE , the remains of the commandery were added to the secondary list of historic buildings .

Following the approval of ORG on DATE and by a decision of CARDINAL DATE , the chapel and chapter house of the historic GPE commandery were added to the primary list of historic buildings under FAC of DATE . The reason for the listing was that “ the preservation [ of the buildings ] ha[d ] public - interest value in relation to the history of art , in view of the rarity and authenticity of the LOC architecture ” . This status gave rise to various sets of proceedings .

As the applicant company had envisaged building a farm shed near the chapel and chapter house , various meetings were organised with the national heritage architect and the architecture authority for the département of ORG with a view to finding a new location , since the applicant company ’s initial plan could no longer be implemented owing to the constraints of the historic monument protection . On DATE the applicant company lodged an application for a building permit in respect of a farm machinery workshop , in spite of the national heritage architect ’s negative opinion , which was subsequently confirmed on CARDINAL DATE . By a decision of the prefect dated DATE , the building permit was refused on the ground that “ the intended construction would have an adverse effect on the chapel of the NORP commandery and would undermine the current harmony of the buildings as a whole ” .

The applicant company applied to the ORG for judicial review of the prefect ’s decision .

On DATE a further meeting was held on the site with a view to finding a possible location for the farm machinery workshop . In a letter of CARDINAL DATE , the national heritage architect informed the applicant company , among other things , that the purpose was not to prevent it from building but to help it draw up the best possible plan , taking into account all the technical , operational and site - related constraints .

In a judgment of DATE , the ORG set aside the decision of CARDINAL DATE to refuse the building permit , on the ground that the prefect had based his decision on an incorrect assessment of the facts . In a judgment of DATE , ORG dismissed an appeal by the Minister for Infrastructure , ORG on the ground that the national heritage architect had not given his opinion within the statutory period .

On DATE the applicant company applied for a permit to build a shelter .

On DATE the national heritage architect advised against the granting of a permit . By a decision of DATE , the prefect denied the applicant company a building permit in respect of a maintenance and repair workshop on the ground that

“ the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under LAW of DATE ( chapel and chapter house ) ” .

On DATE the national heritage architect received PERSON , who submitted to him a plan for the construction of a farm building situated to the west of the main farm and aligned with an existing shed ( adjoining the chapel ) . The national heritage architect gave his approval in principle , subject to a few minor adjustments , as the plan complied with the main guidelines laid down by the architecture and heritage authority of the département of ORG .

On DATE the applicant company applied for a building permit . By a decision of the prefect dated DATE , the building permit was granted subject to certain conditions , such as the obligation to plant a screen of standard trees of local species . The extra cost incurred on account of the permit conditions was MONEY ( FRF ) .

On DATE the applicant company applied for a permit to demolish CARDINAL unlisted buildings that were not adapted to the needs of the farm . By a decision of the prefect dated DATE , the demolition permit was refused on the following grounds :

“ ... the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under LAW of DATE ( ORG ) .

... the disappearance of these traditional constructions with their specific character would detract from the immediate surroundings of the above - mentioned protected buildings and would undermine the quality of their environment ; restoration with a view to reuse has to be envisaged . ”

On DATE the applicant company lodged CARDINAL fresh applications for building permits . On DATE the national heritage architect advised in favour of both applications , subject to the following conditions :

“ In order to harmonise this development with the neighbouring traditional constructions , which form the setting of the above - mentioned protected building :

[ In respect of the first plan : ]

the cladding will be of a dark colour ...

the roofing will be red - brown in colour and mat in appearance

[ In respect of the second plan : ]

the building to be erected will be clad entirely with wooden slats [ tavillons ]

the roofing will be red - brown in colour and with no gloss effect . ”

By CARDINAL decisions of the prefect dated DATE , the applicant company was granted CARDINAL building permits , subject to the above - mentioned conditions . As the applicant company failed to proceed with the building work within the periods laid down in the decisions , the validity of the CARDINAL building permits has since lapsed .

On DATE the applicant company applied to the ORG d’Etat for judicial review of the listing decision of CARDINAL DATE . In a judgment of CARDINAL DATE , the ORG d’Etat dismissed the applicant company ’s application for judicial review and confirmed both the formal validity and the substantive legality of the impugned decision . The PERSON d’Etat noted in particular , concerning the substantive legality of the listing decision , that

“ the chapel and chapter house of the GPE commandery ... constitute a rare example of PERSON architecture ... the preservation [ of which ] has public - interest value for artistic and historical reasons , such that the listing thereof as a historic monument can legally be justified ... [ and ] the second paragraph of LAW of DATE ... can not have the purpose or effect of obliging the authorities to attach any easements or obligations to the listing status other than those resulting , pursuant to the LAW of DATE , from the listing itself ” .

On DATE , in a letter addressed to the prefect of the département of ORG , the applicant company sought ORG CARDINAL in compensation under section CARDINAL of the Act of DATE , on the ground that

“ the listing has clearly caused harm to the claimant company ’s agricultural activity , by creating in the very heart of the farm an easement capable of rendering impossible any development of the farm , or even of seriously undermining its day - to - DATE operations ” .

Having regard to the fact that the listing had obliged the company to “ rebuild all the farm buildings currently at its disposal in a position other than that in which the operational buildings [ we]re currently located ” , and to the fact that this total reconstruction had been assessed by experts at ORG CARDINAL , the applicant company concluded its letter with a claim for that sum under the second paragraph of LAW above - mentioned LAW .

Having failed to reach a friendly settlement of the compensation claim , the applicant company lodged an application for compensation on DATE with the expropriations judge at the GPE tribunal de grande instance . At a hearing on DATE , the Government Commissioner noted that there was “ some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision ” .

In a judgment of DATE , the tribunal de grande instance rejected the application , noting in particular :

“ In the present case ... CARDINAL parts of the farm buildings have been listed , representing PERCENT of the total developed area .

The damage claimed by ORG mainly concerns developments affecting non - listed structures ; accordingly , the applicant company has not shown that it has sustained damage in respect of the listed premises alone or as a result of a change affecting the premises and capable of causing such damage ; it is not therefore entitled to rely on the provisions of LAW of DATE since the dispute concerns only the area surrounding the listed premises and , moreover , the applicant company is bound only by restrictions that do not preclude it from altering neighbouring premises if it abides by the prescriptions laid down by the authorities .

In these circumstances , it is appropriate to reject the application by ORG , which has not sustained direct and established pecuniary damage as a result of the listing of its buildings . ”

The applicant company appealed against that judgment , maintaining in particular that LAW of DATE was to be construed as creating an entitlement to compensation for all forms of damage sustained by an owner as a result of a listing decision , and not simply that sustained in respect of the listed buildings themselves . The applicant company further argued that “ such a restrictive construction of section CARDINAL ... would in effect deprive the owner of the compensation due to him for damage arising from a serious violation of his right of property , in breach of the French Constitution and LAW , which expressly guarantee respect for such right ” . The Government Commissioner noted , as at first instance , that there was “ some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision ” . He stated that the case in issue “ concern[ed ] an easement for the protection of the vicinity of a listed structure ... [ which was ] not to be confused with easements arising directly from a listing decision ” . He concluded that the grounds submitted in support of the applicant company ’s claim did not derive directly from the listing decision . On DATE ORG upheld the judgment and gave the following reasoning :

“ – Construction of section CARDINAL of the Act of DATE

The appellant company claims that LAW ... is to be construed as pertaining to the entire grouping of buildings , incorporating the listed structures .

However , that provision refers only to the listing decision .

The notion of ‘ ORG as used in the second paragraph of LAW of DATE pertains only to the LOC designated in the listing decision .

The decision of CARDINAL DATE states that ‘ the chapel and chapter house of the historic GPE commandery shall be listed as historic monuments ... ’ .

It is therefore appropriate to dismiss the claim of ORG whereby it contends that the term ‘ premises’ as used in the above - mentioned section CARDINAL should be construed as covering the entire property , which would be tantamount to the listing of the whole complex of buildings .

– Conditions of application of LAW of DATE

For there to be an entitlement to compensation , the easement relating to the listing must have entailed a change in the condition or use of the LOC giving rise to direct , substantiated and established damage , for which the burden of proof lies with the claimant .

In this connection ORG based its claim on the restrictions imposed on it , as a result of the listing , in respect of its plans for demolition , the construction of a farm shed or development of the farm site .

However , those restrictions , created by prior agreement with the national heritage architect , are not the result of any change in the status or use of the LOC , as the chapter house and chapel have not been affected by such changes .

The restrictions imposed on the company result from the application of LAW CARDINAL - CARDINAL - CARDINAL of LAW , which protects the view around a listed building by requiring the agreement of the national heritage architect prior to any demolition or construction .

Such an easement , pertaining to the protection of the area surrounding a listed building , does not give rise to the compensation provided for in the current legislation .

Moreover , ORG has obtained permission to erect a storage building , subject to the approval of the plan by the national heritage architect .

Lastly , such easements for the protection of the area surrounding a listed building derive from the law and can not give rise to compensation unless it is specifically provided for in a statutory instrument . ... ”

The applicant company subsequently lodged an appeal on points of law , in support of which it submitted a single ground with CARDINAL limbs . CARDINAL of its claims was that ORG decision had been devoid of the statutory basis required by LAW , as it had denied compensation for damage resulting from the listing without considering whether such refusal was contrary to the provisions of LAW .

On DATE ORG , rejecting the submissions of ORG , dismissed the appeal in a judgment containing the following reasoning :

“ ... having found , firstly , that LAW of DATE provided for compensation following a listing by official order if the resulting easements and obligations entailed a change in the condition or use of the LOC and , secondly , that the easement pertaining to the protection of the area surrounding a listed building did not give rise to any compensation under the current legislation , ORG , leaving aside a subsidiary consideration and without being required to make a determination that had not been sought from it as to the applicability of LAW , rightly considered that the notion of ‘ premises’ pertained only to those designated in the listing decision and dismissed the company ’s compensation claim , thus justifying its decision in law . ”

In GPE , the first provisions for the protection of historic monuments date back to DATE , when the church of FAC was listed . However , until DATE the listing process had few legal effects and the provisions of an LAW DATE were mainly “ contractual ” in nature .

It was only in DATE that a meaningful protection system was provided for in GPE with FAC of DATE , the basic statute governing heritage , which has since been amended a number of times . The LAW mainly lays down the procedures whereby immovable property whose preservation is in the public interest for historical or artistic reasons is to be added to the secondary or primary historic monuments lists . Such decisions carry various legal effects and may create easements or obligations which affect the property itself .

Only in respect of property on the primary list may the adverse consequences of easements and obligations relating to listing , under certain circumstances , give rise to compensation at the request of their owner , under the second paragraph of LAW of DATE .

LAW , in sections CARDINAL bis and QUANTITY ter , also provides for a protected area around buildings deemed to be of interest , such that , through the review of applications for building or demolition permits by the owners of property in the vicinity of listed buildings , their surroundings are protected and the aesthetic quality of the adjacent area is preserved as far as possible . Such easements , created for the benefit of owners of historic buildings , affect the adjacent property .

The protection of a historic monument , whether by secondary listing or by primary listing , under the amended LAW of DATE , automatically creates a conservation area around it , extending to QUANTITY . Over DATE , CARDINAL monuments have been protected under this legislation in GPE . In view of the geographical proximity of some monuments or even their superposition in certain cases , the aggregate surface area of the conservation areas thus created , and consequently the number of properties concerned , are considerable .

The total protected area becomes even greater when account is taken of sites classified under LAW DATE on the protection of natural monuments and places of artistic , historic , scientific , legendary or scenic interest , together with the architectural and landscape heritage areas ( zones de protection du patrimoine architectural et paysager PERSON ) set up under sections CARDINAL to CARDINAL of Law no . CARDINAL - CARDINAL of DATE on the division of powers between municipalities , départements , regions and the ORG .

“ Immovable property whose preservation is in the public interest for historical or artistic reasons shall be entered on the primary list of historic monuments , as a whole or in part , by the minister responsible for the fine arts , in accordance with the distinctions laid down in the following sections .

Immovable property subject to listing under the present Act shall include :

Immovable property of which listing is necessary to allow for the isolation , clearing or cleaning of a listed building or building proposed for listing ;

NORP In general terms , developed or undeveloped property located within the field of view of a listed building or building proposed for listing . For the purposes of this LAW , the criterion of being located within the field of view of a listed building or building proposed for listing shall be regarded as applying to any other developed or undeveloped property that is visible from the former , or at the same time as the former , and is situated within a range of not QUANTITY . On an exceptional basis this range may be extended beyond QUANTITY . A decision of the PERSON d’Etat , adopted further to an opinion of ORG , shall indicate the monuments to which such extension may apply and shall determine the range of the protected area in each case .

From the date on which the fine arts authority notifies the owner of a listing proposal , all the effects of such listing shall apply automatically to the property concerned . They shall cease to apply if the listing decision is not taken within ‘ QUANTITY months’ following such notification .

“ The following property shall be regarded as having been validly listed prior to the enactment of this law : ( CARDINAL ) buildings listed on the general schedule of listed monuments , officially published in DATE by the fine arts authority ; ( CARDINAL ) those and other buildings that have been listed by means of a decision [ arrêté or décret ] under LAW of DATE .

Within DATE , the schedule of buildings regarded as listed prior to the enactment of this Act shall be published in ORG . An entry shall be drawn up for each of those buildings giving full particulars thereof ; the fine arts authority shall ensure that the entry is filed with the appropriate ORG for the site of the property . Such registration shall not give rise to any taxes payable to the ORG .

The primary list of protected buildings shall be kept up to date and published at least once DATE .

Public or private buildings , or parts of buildings , which , without warranting an immediate proposal for addition to the primary list , nevertheless have sufficient historical or artistic interest for their preservation to be desirable , may at any time be added to the secondary list by decision of the regional prefect , or , where such secondary listing is proposed by ORG , by decision of the minister responsible for cultural affairs .

Secondary listing under the same conditions may also apply to any developed or undeveloped property situated within the field of view of a building already listed on the primary or secondary list . The regional prefect shall ensure that decisions to add buildings to the secondary list of historic monuments are registered at the appropriate ORG for the site of the listed building . Such registration , which shall not give rise to any taxes payable to the ORG , shall be carried out in accordance with the formalities and procedures laid down by the legislation on land registration .

Owners shall be notified of such secondary listing , which shall impose on them an obligation not to make any alterations to the listed building or part of a building , without having informed the regional prefect , giving CARDINAL months’ notice , of their intention and of the work they propose to carry out .

The minister may object to such work only by initiating the primary listing procedure as provided for herein .

However , if the purpose or effect of the work is to divide up or strip the building or part of building on the secondary list , for the sole purpose of selling all or part of the materials thus detached , the minister shall have DATE in which to decide on its primary listing and may , in the meantime , order the suspension of the work in question .

The minister responsible for education shall be authorised to subsidise PERCENT of the actual cost of any maintenance or repair work that may be required for the preservation of buildings or parts of buildings listed on the secondary list of historic monuments . The work shall be carried out under the supervision of the historic monuments authority . ”

“ Property belonging to any persons other than those enumerated in sections CARDINAL and CARDINAL shall be added to the primary list by decision of the minister responsible for cultural affairs , where the owner has given consent . The decision shall lay down the conditions attached to such listing .

Where the owner has not given consent , the addition to the primary list shall be decided by an order of the ORG d’Etat which shall lay down the conditions attached to the listing and in particular any easements or other obligations thus created . The primary listing may then entitle the owner to compensation if , as a result of such easements or obligations , a change in the status or use of the LOC gives rise to direct and established pecuniary damage . The application for compensation shall be lodged within DATE from the notification of the primary listing decision . If the compensation can not be agreed upon by friendly settlement , its amount shall be determined by the expropriations judge .

The government may decide not to act upon such a listing order under the conditions thus laid down . In such cases it shall be required , within DATE from the notification of the judgment , to repeal the listing decision or to proceed with the expropriation of the property . ”

“ When immovable property is located within the field of view of a listed building , it may not be subjected , whether by private owners or by public authorities or establishments , to any new construction , demolition , deforestation , transformation or alteration capable of affecting its appearance , without prior authorisation .

Building permits issued under legislation on building lines and on municipal and regional land - use and urban development plans shall constitute authorisation , as provided for in the preceding paragraph , provided they have been endorsed with the approval of the national heritage architect . ”

“ Where it does not concern work for which a building permit , a demolition permit , or the authorisation provided for under LAW is necessary , the application for authorisation under LAW bis shall be addressed to the prefect , who shall give his decision after seeking the opinion of the national heritage architect . However , if the minister responsible for historic monuments has decided to take up the matter , authorisation may be given only with his express agreement .

If the prefect has not notified his response to the applicants within DATE from the filing of their application , or if they are not satisfied by the response they have received , they may refer the matter to the minister responsible for cultural affairs within DATE from the notification of the prefect ’s response or following the expiry of the DATE period allowed for such notification .

The minister shall decide . If his decision has not been notified to the applicants within DATE following receipt of their application , the application shall be deemed to have been refused .

The applicants shall comply with the restrictions imposed on them for the protection of the listed building , either by the national heritage architect in the case referred to in the second paragraph of LAW bis , or by the prefect or minister responsible for cultural affairs in the cases referred to in the first , second and third paragraphs of this section . ”

“ In accordance with LAW bis of FAC of DATE , as amended , where immovable property is located within the field of view of a listed building , it may not be subjected , whether by private owners or by public authorities or establishments , to any new construction , demolition , deforestation , transformation or alteration capable of affecting its appearance , without prior authorisation . Building permits shall constitute such authorisation provided they have been endorsed with the approval of the national heritage architect . ”

“ Where a construction is located within the field of view of a listed building , the building permit may be issued only with the authorisation of the national heritage architect .

Pursuant to the third paragraph of LAW bis of FAC of DATE , as amended , the regional prefect , upon a written request by the mayor or authority empowered to issue the building permit , sent by registered letter with return receipt within DATE following notification of the national heritage architect ’s opinion , shall , after consulting the regional commission on heritage and sites , deliver an opinion superseding that of the national heritage architect .

Where the mayor is not the authority empowered to issue the permit , the regional prefect shall notify the authority in question of the request he has received from the mayor .

The opinion of the regional prefect shall be notified to the mayor and to the authority empowered to issue the permit . The regional prefect shall be deemed to have confirmed the opinion of the national heritage architect if he has not responded within DATE following receipt of the request , unless the matter has , in the meantime , been taken up by the minister responsible for culture . In such a case , the permit may be issued only with the express agreement of the minister . The minister ’s decision to take up the matter shall be notified to the applicant , to the mayor and to the competent authority .

If the national heritage architect refuses to give his approval or gives conditional approval , the authority empowered to issue the permit may , within DATE from receipt of that decision , refer the matter to the minister responsible for historic monuments . For such purpose that authority shall transmit to the minister the file on the application for a building permit , together with the document stating the position of the national heritage architect . In cases where the mayor is empowered to issue a building permit , he shall inform the prefect of such referral . The permit may then be issued only with the express agreement of the minister . If the minister fails to respond within DATE from the date of referral he shall be deemed to have confirmed the position of the national heritage architect . ”

“ There shall be no entitlement to compensation for easements created pursuant to this LAW in respect of roads , sanitation , aesthetic appearance , or for other purposes , and pertaining in particular to the use of land , the height of edifices , the proportion of developed and undeveloped land within each property , prohibited construction in certain areas and along certain roads , or the distribution of buildings between different areas .

However , compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct , pecuniary and established damage . Unless a friendly settlement is reached , such compensation shall be assessed by the administrative court , which shall take into account the increase in value of a building produced by the implementation of a land - use plan that has been made public , or of an approved local - development plan or equivalent document . ”

The latter provision and the question of statutory easements have been addressed in various ways in case - law ( see , inter alia , ORG , judgment of the ORG d’Etat of CARDINAL DATE , and PERSON Culture c. PERSON , judgment of the PERSON d’Etat of CARDINAL DATE ) . As to the obligation of the administrative court to examine , if necessary proprio motu , the merits of an application for compensation under LAW , see the judgment delivered by the ORG d’Etat on DATE in LOC . PERSON .

Moreover , the PERSON d’Etat has stated , in the light of LAW No . CARDINAL , that LAW “ does not set out a general and absolute principle , but expressly provides for CARDINAL exceptions as regards the vested rights of owners and a change in the previous condition of the land . Lastly , the LAW in question does not prevent an owner whose property is affected by an easement from claiming compensation in exceptional cases where the aggregate of the conditions and circumstances in which the easement has been created and implemented , as well as its substance , have imposed on the owner an individual and excessive burden out of proportion with the general - interest objective pursued . In these circumstances , the applicant is not justified in asserting that Article L. CARDINAL - CARDINAL of LAW is incompatible with the provisions of LAW No . CARDINAL to LAW ” ( ORG , judgment of the ORG d’Etat of CARDINAL DATE , PERSON DATE , p. CARDINAL , and PERSON , judgment of the ORG d’Etat of DATE ) .

This convention provides , in particular :

“ The Parties to this Convention agree to :

( a ) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life , as defined in LAW ;

( b ) recognise individual and collective responsibility towards cultural heritage ;

( c ) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal ;

“ To sustain the cultural heritage , the Parties undertake to :

( a ) promote respect for the integrity of the cultural heritage by ensuring that decisions about change include an understanding of the cultural values involved ;

( b ) define and promote principles for sustainable management , and to encourage maintenance ;


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in LOC . He has a farm where he keeps cattle for slaughter .

On DATE cattle on the applicant 's farm was inspected by ORG ( Algemene inspectiedienst ) of ORG ( PERSON , PERSON ) . CARDINAL cows were singled out to which the applicant was suspected of having administered the illegal substance clenbuterol .

DATE the public prosecutor ( officier van justitie ) ordered an interim measure pursuant to LAW ( see paragraph CARDINAL below ) under which the applicant was restrained from removing the CARDINAL cows from his premises without permission and from obstructing the identification of the cows .

After tests had borne out that clenbuterol had been administered to CARDINAL of the CARDINAL cows , ORG seized these CARDINAL cows on DATE pursuant to section CARDINAL of LAW ( see paragraph CARDINAL below ) .

The applicant was given a receipt for these cows , which stated that an objection against the seizure could be lodged with ORG pursuant to LAW PERSON of LAW ( Wetboek van Strafvordering – see paragraph CARDINAL below ) .

It appears that the restrictions affecting the other CARDINAL cows were lifted .

On DATE the public prosecutor applied under LAW ( see paragraph CARDINAL below ) to ORG for permission to have the CARDINAL cows destroyed . The reasons given were that since they had been contaminated by an illegal substance , they would never again be marketable for human or animal consumption , and that moreover it was impracticable and costly to keep them for any length of time .

On DATE the applicant applied for the interim measure ordered on DATE ( see paragraph CARDINAL above ) to be lifted .

ORG held a hearing in camera on DATE . At that hearing the public prosecutor announced that the interim measure of CARDINAL DATE would be withdrawn . It does not , however , appear that this had happened by the time ORG gave its decision .

On DATE the applicant again applied to ORG for an order to have the interim measure lifted , or in the alternative to have the cows tested anew and to order the lifting of the interim measure if it was shown that the concentrations of clenbuterol did not exceed legal limits .

A hearing was held in camera DATE . In his oral submissions the applicant 's lawyer referred to ORG CARDINAL/CARDINAL of DATE , which contained rules for testing cattle which had in his submission been disregarded in the present case .

On DATE ORG rejected the applicant 's applications of DATE and CARDINAL DATE . It held that the applicant had no legal interest in applying for the interim measure complained of to be lifted since the public prosecutor had already ORG announced that this would be done . In the same decision it authorised the public prosecutor to have the cows destroyed , since it appeared from the case file that it was in any event unlikely that the cows would not eventually be declared forfeit ( onttrokken aan het verkeer ) .

The cows were slaughtered shortly after ORG decision .

On DATE the applicant , through his lawyer , lodged an appeal on points of law to ORG ( PERSON ) . The lawyer did not submit any grounds of appeal in writing .

On DATE the Procurator - General of ORG submitted an advisory opinion to the effect that no grounds of appeal had been submitted and that there were no reasons for ORG to quash the decision appealed against ex officio . He appended to his opinion a copy of a preliminary ruling of ORG of ORG concerning the interpretation of ORG CARDINAL/CARDINAL .

It appears that neither the applicant nor his lawyer received any notice of this until after ORG had given judgment .

On DATE the applicant was notified by the Procurator - General that ORG had dismissed his appeal on DATE .

The DATE Ordinance on substances with a sympathomimetic effect ( NORP stoffen met sympathico mimetische werking ) makes it illegal to administer animal medicines with a sympathomimetic effect containing clenbuterol to beef cattle DATE . Section CARDINAL(CARDINAL ) of that Ordinance makes it illegal to have in stock , sell or purchase beef cattle to which such substances have been administered , and section PERSON ) makes it illegal to have in stock , sell or purchase their meat .

Clenbuterol is , moreover , an unregistered animal medicine the use or possession of which is prohibited by LAW ( PERSON ) .

The offences here described are economic offences for the purposes of LAW ( section CARDINAL of that Act ) .

LAW lays down particular rules for the prosecution and punishment of economic offences . In so far as procedure is concerned , it is a lex specialis in relation to LAW , the provisions of the latter remaining applicable in so far as LAW does not provide otherwise ( LAW ) .

Section CARDINAL(CARDINAL ) of the Economic Offences Act empowers the public prosecutor , until the beginning of the court hearing in the case , to order a person against whom a serious suspicion has arisen , by way of interim measure , to desist from particular actions or to keep or store particular goods in a particular place .

It is open to the person to whom such an order has been issued to apply to the trial court which is to deal with the case for the order to be lifted ( section DATE ) of LAW ) .

An appeal against a refusal lies to ORG ( section CARDINAL ) .

A further appeal on points of law lies to ORG ( section CARDINALa ) . The accused is required to have a written statement of grounds of appeal submitted by a lawyer within DATE of lodging the appeal , failing which his appeal will be declared inadmissible . The ORG shall decide as soon as possible .

It would appear that this procedure was not followed in the present case , since the appeal was not lodged with ORG but directly with ORG .

Goods or objects which may help to establish the truth or the existence of illegal gains , or which may be declared forfeit , may be seized by officers invested with investigative competence ( opsporingsambtenaren ) ( section CARDINAL ) of the Economic Offences Act taken together with LAW ) .

Interested parties may lodge a written complaint ( schriftelijk zich beklagen ) against such seizure with the trial court before which the case is pending ( Article CARDINALa § CARDINAL of LAW ) . The parties concerned have the right to be heard ( Article CARDINALa § CARDINAL ) .

An appeal lies on points of law to ORG ( Article PERSON ) .

It would appear that this was the procedure followed in the present case .

The accused has the right to submit written grounds of appeal within DATE of lodging his appeal on points of law ( LAW ) , but his appeal is not automatically declared inadmissible if he does not .

If the said goods or objects can not be stored , the trial court may authorise the public prosecutor to have them sold , destroyed , abandoned ( prijsgegeven ) or used for some purpose other than the criminal investigation ( LAW ) . No appeal lies against the trial court 's decision ( LAW ) .

If it emerges that it is appropriate to return seized goods to the owner but that this is impossible because the goods have been lawfully sold , destroyed or abandoned , then the interested party shall be paid compensation to an amount equivalent to the price for which the goods might reasonably have been sold ( LAW ) .

All matters which may arise in the course of criminal proceedings which are not required to be decided in open court are dealt with in camera ( LAW ) ; matters so dealt with include interim measures under LAW and seizures .

In the case of appeals on points of law against a judgment delivered in open court ( uitspraak ) the accused is entitled to submit at the hearing grounds of appeal not filed at an earlier stage ( LAW ) . There is no equivalent provision for appeals on points of law against orders given in camera ( beschikkingen ) .

The duties and position of the Procurator - General 's department ( openbaar ministerie ) are defined in ORG ( Wet op de rechterlijke organisatie ) .

The Procurator - General 's department consists of the Procurator - General and advocates - general of ORG , the procurators - general and advocates - general of the courts of appeal and the public prosecutors of the regional and district courts ( section CARDINAL(CARDINAL ) of ORG ) . The advocates - general of ORG act as deputies of the Procurator - General of that court and are subordinate to him ( sections CARDINAL(CARDINAL ) , CARDINAL and DATE ) ) .

The Procurator - General 's department must be heard by the courts in so far as the law so prescribes ( section CARDINAL ) . The advisory opinion of the Procurator - General or an advocate - general to ORG takes the form of a learned treatise containing references to relevant case - law and legal literature and a recommendation , which is not binding on ORG , to uphold or reject points of appeal .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - award;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The first applicant was born in DATE . The second applicant is the first applicant ’s daughter , born in DATE . They live in GPE .

In DATE and DATE the applicants made various monetary deposits with the GPE branch of ORG ( “ СБС-Агро ” ) . In DATE , during a financial crisis in GPE and rapid currency devaluation , they requested the bank to refund the capital with interest , but the bank refused . On DATE the ORG of GPE ( “ the ORG ” ) allowed the ORG claim against the bank . The first and second applicant were awarded CARDINAL and CARDINAL United States dollars ( ORG ) respectively .

The bailiffs started enforcement proceedings on CARDINAL DATE . Meanwhile , the bank became insolvent . On DATE the enforcement proceedings were discontinued . The judgment of CARDINAL August DATE remained unenforced .

On DATE and DATE ORG ( “ the LOC ” ) declared a moratorium until DATE on the execution of all creditors’ demands against ORG ( “ the bank ” ) . The moratorium was later prolonged . On DATE the management of the bank was taken over temporarily by ORG ( “ ARKO ” ) , set up by the ORG in accordance with the Law on Restructuring of ORG .

On DATE the applicants sued ORG and the ARKO for damages on the ground that the bank remained under the ARKO ’s effective control since DATE . ORG held a hearing in the applicants’ case on DATE . The ORG filed written observations but was not represented at the hearing . ORG did not file observations , nor was it represented at the hearing . In its judgment delivered on DATE ORG noted that the bank was being managed by the ARKO at the material time and found the latter responsible for the bank ’s obligations , including its debt owed to the applicants . It held that the ARKO was to pay the first and second applicants ORG CARDINAL and ORG CARDINAL respectively .

NORP ORG ( “ the Regional Court ” ) allowed the ARKO ’s appeal on DATE and set aside ORG judgment of DATE .

Following another remittal , on DATE ORG again found for the applicants , in terms similar to those of its judgment of DATE . The applicants were awarded the same amounts , payable by the ARKO . The judgment also held that the ARKO had to pay an amount of ORG CARDINAL to another plaintiff , PERSON . The judgment specified that it was subject to appeal before ORG within DATE .

The ARKO lodged an appeal against the judgment of DATE . ORG joined the appellate proceedings . On DATE the ARKO was closed .

On DATE ORG heard the ARKO ’s appeal against ORG judgment of DATE . The representative of ORG took part in the hearing as a codefendant . ORG observed that the ARKO had been closed and discontinued the appellate proceedings . ORG judgment of DATE in the ORG favour accordingly became binding and enforceable .

On DATE ORG issued a writ of execution in respect of its judgment of DATE , which had acquired legal force on DATE .

On DATE ORG lodged an appeal with ORG against the judgment of DATE . They also requested that the DATE time - limit for appeal be extended on the ground that they had been deprived of the opportunity to have the lawfulness of the judgment of DATE reviewed by ORG .

On DATE ORG extended the time - limit for appeal as requested by ORG . It noted that ORG “ had joined ” the ARKO ’s appeal against the judgment of DATE which had been dismissed without being considered on its merits . ORG concluded that ORG had been deprived of its statutory right to appeal against the judgment of DATE .

On DATE ORG considered ORG appeal against ORG judgment of DATE . It heard the same representative of ORG who took part in the hearing held by the same court on DATE to consider the ORG ’s appeal which was then joined by ORG . The court observed that both the ARKO and ORG were co - defendants in the case and that the ARKO had been closed . ORG concluded that its earlier decision of DATE was based on an incorrect application of the relevant legal provisions , set aside the judgment of DATE in the ORG favour and discontinued the proceedings .

On DATE ORG delivered a judgment in respect of PERSON ( PERSON v. GPE , no . CARDINAL , DATE ) , who was at a certain stage the applicants’ coplaintiff in the domestic proceedings ( see paragraph CARDINAL above ) . In DATE he had obtained a separate judgment awarding him an amount of MONEY ( RUB ) , payable by the ARKO ( see PERSON , cited above , § § DATE ) . The ORG found a violation of LAW in that ORG had quashed in DATE the binding and enforceable judgment in Mr PERSON ’s favour by way of supervisory review .

Following the ORG ’s judgment of DATE , the applicants lodged an application for review of ORG judgment of DATE , relying on Articles CARDINAL - CARDINAL of the Code of Civil Procedure . On DATE the Presidium of ORG dismissed their application .

NORP Under LAW ( “ the ORG ” ) , a competent court may extend an expired time - limit for procedural actions , such as lodging an appeal , if the court finds that a party has a valid excuse for failure to comply with that time - limit ( LAW ) .

An appellate court shall set aside the judgments and discontinue the proceedings if a legal entity which is a party to the proceedings has been liquidated ( LAW in conjunction with LAW CCP ) .

A final judgement in a case may be reviewed , inter alia , on the ground that ORG found a violation of the LAW on account of the domestic judicial proceedings or decisions taken in that case ( LAW ORG ) . Articles CARDINAL - CARDINAL set out a procedure for reopening of domestic judicial proceedings in any such case .

The ARKO was a ORG corporation ( LAW . CARDINALFZ of DATE on Restructuring of ORG ) , that is , a non - commercial organisation established by ORG in order to exercise certain social , administrative or other socially beneficial functions ( Article CARDINAL of the Law No . CARDINAL of DATE on ORG , as amended by ORG . ORG of CARDINAL DATE ) .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 11;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE and DATE respectively and live in GPE .

On DATE the applicants , together with several other persons , gathered in a public park in GPE in protest against F - type prisons and the events which had occurred in FAC ( violent clashes had taken place between the detainees and security forces on DATE ) . The participants wanted to read out a press statement in order to express their concerns about F - type prisons and the events in FAC . Police officers warned the crowd over a megaphone that the demonstration was illegal under LAW no . CARDINAL on Meetings and Demonstration Marches . The group ignored the police warning . The police officers then arrested CARDINAL persons , including the applicants , and took them into custody . It appears from the newspaper articles submitted by the applicants that the police officers used force in order to disperse the protesters . As a result , some of the protestors were injured and a number of them were arrested by the police officers .

According to the arrest report , drawn up and signed by the police officers , the applicants were demonstrating with protest banners in their hands . After having warned them to desist , the police arrested the protesters who continued demonstrating . It was also noted in the arrest report that QUANTITY police officers , who had been injured during the clash with the demonstrators at the time of the arrest , had had to be taken to hospital . The medical reports stated that the police officers were unfit for work for DATE .

On DATE ORG filed an indictment with ORG against the applicants and CARDINAL others , charging them with having taken part in a demonstration in a public place , without the permission of the authorities , contrary to PERSON no . CARDINAL .

The applicants alleged that the police officers had been armed during the hearings before the trial court and had verbally harassed the defence lawyers . Moreover , the police officers had obtained a copy of the reports and statements in the case file even though they were not a party to the proceedings . The applicants ' request to include these facts in the record of the hearings was dismissed .

On DATE ORG acquitted some of the accused but convicted the applicants on the basis of the evidence given by them and by witnesses . The court found that the applicants had ignored the police warning that their meeting was illegal and that they had to disperse . The police had had to use force in order to arrest the applicants . Furthermore , having examined the applicants ' defence submissions , the court considered that the applicants had indirectly confessed to the crime ( tevil yollu ikrar ) by admitting that they had gathered in the park in order to protest against F - type prisons and the events in FAC . It then sentenced PERSON to a fine , taking into account the fact that he was a minor at the time of the incident ( DATE ) , whereas it sentenced the other applicants to DATE and DATE imprisonment . It decided to suspend enforcement of the applicants ' sentence , under LAW no . CARDINAL , with the exception of GPE , PERSON and PERSON .

On DATE the applicants appealed to ORG against the judgment of the first - instance court . The written opinion of ORG at ORG was not transmitted to the applicants .

On DATE ORG upheld the decision of the first - instance court .

Section CARDINAL of Law no . CARDINAL on the Execution of Sentences reads as follows :

“ Anyone who has never been sentenced ... to a penalty other than a fine and is sentenced to ... a fine ... and/or a [ maximum ] term of DATE imprisonment may have his [ her ] sentence suspended if the court is satisfied that [ the offender ] , having regard to his [ her ] criminal record and criminal tendencies , will not reoffend if [ the ] sentence is thus suspended ... ”

Section CARDINAL of Law no . CARDINAL on the Establishment and Rules of Procedure of ORG , as amended by PERSON no . CARDINAL of DATE , provides :

“ Criminal cases which concern crimes that normally fall under the jurisdiction of the regular courts and are committed by minors who are not yet DATE of age shall be examined by the juvenile courts . ”

DATE LAW provides :

“ Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission . ...

The formalities , conditions , and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law . ”

At the material time section CARDINAL of LAW ( Law no . CARDINAL ) was worded as follows :

“ In order for a meeting to take place , the governor 's office or authorities of the district in which the demonstration is planned must be informed , during TIME and CARDINAL prior to the meeting , by a notice containing the signature of all the members of the organising board ... ”

Section CARDINAL of the same LAW prohibited demonstrations and processions on public streets , in parks , places of worship and buildings in which public services were based . Demonstrations organised in public squares had to comply with security instructions and not obstruct individual movement or public transport . Finally , section CARDINAL provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor 's office and after the demonstrators had been warned .

Section CARDINAL of Law no . CARDINAL on the Duties and Powers of the Police provides :

“ The police may use firearms :

( a ) in self defence , ...

( h ) or if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police . ”

Additional section CARDINAL of Law no . CARDINAL on the Duties and Powers of the Police provides :

“ In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of an attack or threat of an attack , the police may use violence to subdue these actions .

Use of violence refers to the use of bodily force , physical force and all types of weapons specified in the law and gradually increases according to the nature and level of resistance and attack in such a way as to restore calm .

In cases of intervention by group forces , the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force . ”


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in GPE . He used to work as a shunter at ORG . On DATE he was dismissed from his work for having breached disciplinary regulations .

On DATE the applicant filed with ORG an action for wrongful dismissal against his former employer .

On DATE the ORG heard the applicant and his lawyer and rejected the case , ruling that the applicant ’s dismissal was not amenable to judicial review . It based its decision on section CARDINAL ) of the Decree No . CARDINAL of DATE and ORG practice , according to which employees of ORG dismissed for breach of disciplinary regulations could only appeal to a higher administrative body , not to a court .

On DATE the applicant appealed to ORG against ORG decision . He argued that Decree No . CARDINAL was contrary to LAW . He also relied on an amendment to LAW , stating that it vested with the courts power to examine all appeals for wrongful dismissal , despite the provisions of Decree No . CARDINAL .

NORP By decision bearing the date CARDINAL DATE ORG , sitting in private , dismissed the applicant ’s appeal , holding that in accordance with Decree No . CARDINAL a judicial appeal against the applicant ’s dismissal was not possible .

ORG decision was not pronounced publicly and was not served .

On DATE the case file was transmitted by the judge - rapporteur to ORG clerical staff which made an entry in the court ’s register .

On DATE the case file was transmitted to ORG and an entry was made in its register .

On DATE the applicant submitted a petition for review ( преглед по реда на надзора ) to ORG .

The parties were summoned for a hearing but none of them appeared .

On DATE , sitting in private , ORG rejected the petition for review as time barred . It held that ORG decision had entered into force on DATE and that the CARDINAL months’ time - limit for submission of a petition for review had expired on DATE whereas the petition had been submitted on DATE .

At the relevant time , in accordance with Decree No . CARDINAL of DATE , employees of ORG were subject to a special legal regime . They had ranks , wore uniforms and were subject to strict hierarchy and discipline , under the control of ORG . Decree No . CARDINAL set out the special rules governing service in ORG . LAW had subsidiary application .

Section CARDINAL of the Decree , as in force at the relevant time and until DATE , provided , inter alia , that disputes about wrongful dismissal of employees of ORG were amenable to review by the higher administrative authority only . As a result , until DATE the ORG practice was to reject actions for wrongful dismissal of PERSON employees .

In a judgment of CARDINAL DATE ORG , departing from earlier practice , held that the prohibition of judicial review under Decree No . CARDINAL was to be considered abandoned since DATE , the date on which an amendment to LAW had entered into force ( опр. no . CARDINAL от CARDINAL г. , ORG , кн. DATE г. , стр. CARDINAL ) .

The relevant part of LAW CARDINAL was eventually repealed by ORG by decision of DATE as unconstitutional and contrary to LAW . ORG held that dismissal from work could not be excluded from the jurisdiction of the courts , regard being had to the fact that the right to work is one of the fundamental constitutional rights ( реш. no . CARDINAL от CARDINAL по конст. дело no . CARDINAL г. на КС на РБ , ORG вестник , бр. CARDINAL ) .

In DATE the remainder of Decree No . CARDINAL was repealed and the special legal regime of ORG employees abandoned .

Under LAW as in force at the relevant time , service was required only in respect of judgments and certain types of procedural decisions issued by a first level of jurisdiction .

Judgments or decisions delivered by a court acting as a second level jurisdiction were not served despite the fact that most of them were amenable to review ( преглед по реда на надзора ) , within particular time limits , before ORG ( which was later reconstituted into ORG and ORG ) .

As a result , whenever second instance cases were decided in private ( which was the rule in appeals against procedural decisions ) , the parties could only learn whether or not their case had been decided by visiting the respective court and checking its register periodically .

Article CARDINAL of the Code of Civil Procedure , as in force at the relevant time , provided that a petition for review could be submitted within DATE from the impugned decision ’s entry into force . At that time judgments and decisions issued by a second level of jurisdiction entered into force on the date on which they were made ( opr . CARDINAL - CARDINAL-III ) .

According to the applicant , the courts nevertheless would normally count the DATE time - limit from the date on which the second instance judgment or decision was entered in the respective register . No relevant case - law has been cited by the parties .


Violation of Art. 6-1;Violation of Art. 5-3

Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in the town of GPE , GPE .

The applicant worked as a customs officer at the GPE railway border checkpoint .

According to the records provided by the ORG , on DATE criminal proceedings were instituted against the applicant in connection with CARDINAL episode of smuggling CARDINAL electronic devices of the same type , intended for military use . On DATE and CARDINAL DATE criminal proceedings were instituted against PERSON and PERSON , respectively , in connection with the same episode of smuggling .

On DATE the applicant was arrested on the suspicion that he had committed the above crime . On DATE the Shevchenkivsky ORG of GPE ordered the applicant ’s detention on remand relying on the suspicion that he had committed a crime punishable by imprisonment . It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings , given the risk that he might leave GPE and obstruct the investigation .

On DATE the proceedings against the applicant , PERSON and Ms. PERSON were joined .

On an unspecified date in DATE the applicant ’s criminal case was sent to ORG for consideration .

On DATE , CARDINAL DATE , and DATE ORG dismissed the applicant ’s requests for release , having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure .

On DATE ORG convicted the applicant of smuggling , abuse of authority and tax evasion . The court sentenced the applicant to eleven years’ imprisonment .

On DATE ORG of Appeal quashed that judgment and remitted the case for a new consideration to ORG . By the same ruling , the court of appeal continued the applicant ’s remand in custody without indicating any reason .

On DATE ORG rejected the applicant ’s and PERSON PERSON ’s requests for leave to appeal in cassation against the decision of CARDINAL DATE .

On DATE the applicant lodged a request for release which was dismissed the same day . ORG found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure .

On DATE ORG ordered an expert examination of the smuggled devices .

On DATE the applicant lodged a request with the trial court asking the court to lift the preventive measure of detention . On DATE the court dismissed his request , having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure .

On DATE the expert report was sent to the court .

According to the records provided by the ORG , DATE and DATE the ORG scheduled no hearings .

On DATE the ORG convicted the applicant of smuggling , abuse of authority and tax evasion . The court sentenced the applicant to CARDINAL years’ imprisonment with confiscation of his movable property .

On DATE ORG upheld the judgment of CARDINAL DATE with minor amendments .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .

While the criminal proceedings against the applicant were pending , the applicant unsuccessfully sought institution of criminal proceedings against the persons who prepared the expert reports in his criminal case .

Provisions of the Code of Criminal Procedure of CARDINAL DATE on preventive measures are set out in GPE v. GPE ( no . CARDINAL , § DATE , ORG CARDINALII ( extracts ) ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

David Thór Björgvinsson;Krzysztof Wojtyczek;Zdravka Kalaydjieva

NORP The applicant company , Purpian sp . z o.o . , is a NORP limited liability company having its registered office in GPE .

On DATE the applicant company instituted civil proceedings against a certain PERSON for payment .

In DATE and DATE QUANTITY hearings were adjourned due to the applicant company ’s absence . Furthermore the hearings scheduled for CARDINAL May and DATE , DATE , DATE , CARDINAL DATE and CARDINAL DATE were adjourned or cancelled on the applicant company ’s request .

On DATE the Ostrów Wielkopolski ORG gave a judgment . Both the applicant company and the other party to the proceedings appealed against the judgment .

By a judgment of CARDINAL DATE ORG dismissed the appeals , upholding the first - instance judgment .

On an unspecified date the applicant company lodged a complaint under LAW June CARDINAL on complaints about a breach of the right to a trial within a reasonable time ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki DATE “ the CARDINAL Act ” ) . It sought a finding that the length of the proceedings had been excessive and claimed MONEY ( ORG ) in compensation .

By a decision of DATE ORG held that the length of the proceedings had been excessive and awarded the applicant company ORG CARDINAL in compensation .

On DATE the applicant company lodged another complaint under LAW .

By a decision of CARDINAL DATE ORG dismissed the complaint , holding that the proceedings had been conducted in a correct and timely manner . The court further expressed a view that the length of the proceedings had been largely due to the conduct of the parties , including that of the applicant company .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in cases of ORG v. GPE DATE . ) , no . CARDINAL , § § CARDINAL , ECHR CARDINAL-V ; PERSON GPE DATE . ) , no . CARDINAL , ORG CARDINAL-VIII ; and the judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL


The applicant is a NORP national born in DATE . He is represented before the ORG by Ms A.E.M. GPE , a lawyer practising in GPE .

The applicant is a retired senior diplomat . At the time of the events complained of he had no diplomatic status . On DATE , while in transit from GPE to GPE and travelling on CARDINAL passports ( CARDINAL ordinary , the other a diplomatic CARDINAL containing a LOC visa ) , he was arrested at GPE ( GPE ) airport after customs found a quantity of cocaine in excess of QUANTITY in his luggage . The applicant was also found to be carrying a large sum of money in cash . The cocaine had been packed in parcels secured with adhesive tape . It appears from police reports that adhesive tape with which the applicant ’s luggage had been secured was identical to that used for packing the cocaine . The applicant relinquished title to the cocaine and the packaging materials ( including the tape ) , and these were destroyed .

The applicant was tried by ORG ( Arrondissementsrechtbank ) of GPE , which on DATE found him guilty of having intentionally imported cocaine and sentenced him to CARDINAL years’ imprisonment . The applicant appealed .

The appeal was heard by ORG ( Gerechtshof ) of GPE on DATE . The appeal was by way of a complete rehearing , as is prescribed by GPE law .

The applicant admitted before ORG that before leaving GPE he had packed his luggage himself and secured it with adhesive tape . He had handed it to a luggage porter who had checked it in for him . The cocaine had been put into his luggage by persons unknown to him after the luggage had been checked in . The large sum of money was intended to set up a business in GPE .

The defence asked for the adhesive tape with which the cocaine had been packed to be examined for fingerprints , arguing that the absence of the applicant ’s fingerprints would prove that the applicant had not handled the cocaine . This request could not be acceded to as the tape had been destroyed after the applicant had relinquished title to it . The defence then suggested that the prosecution be declared inadmissible on this ground . The defence further stated that persons unknown to the applicant had placed the cocaine in his luggage . It was suggested that this might conceivably have been the work of the NORP secret service , and a ORG liaison officer should be detailed to make examinations in LOC .

In its judgment , which was delivered on DATE , ORG held that it had normally to be assumed that a person who packed his own luggage was aware of its contents ; although admittedly in certain circumstances this might not be so there was nothing to suggest in the present case that such circumstances were present . As to the adhesive tape , even if the absence of the applicant ’s fingerprints could be established that would not affect ORG finding that the applicant must have known that his luggage contained cocaine . As to the possibility that the applicant had been framed by the NORP secret service , ORG found that the applicant ’s statements were “ merely of a general nature ” , had not been “ specified ( geconcretiseerd ) in any way ” and had “ in no way been related to his person ” , so that it was unnecessary to order an investigation by a ORG liaison officer . Further being of the opinion that the applicant had misused a diplomatic passport in the hope of avoiding luggage checks and that his explanation for the size of the sum of money was not substantiated , ORG went on to find him guilty of having intentionally imported cocaine and sentenced him to inter alia DATE imprisonment .

The applicant lodged an appeal on points of law to ORG ( PERSON ) . His counsel submitted CARDINAL points of appeal .

On DATE ORG gave judgment dismissing the applicant ’s appeal .


CASE OF EMONET AND OTHERS v. SWITZERLAND

Preliminary objections dismissed (ratione materiae, non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award (global)

The applicants were born in DATE , DATE and DATE respectively and live in GPE .

In DATE Mariannick Faucherre ( the second applicant ) and her husband had a daughter , PERSON ( the first applicant ) . The couple divorced in DATE and the second applicant 's former husband died in DATE .

Since DATE Mariannick PERSON has been living with PERSON ( the third applicant ) , who is divorced and has no children . The CARDINAL applicants lived together DATE , when the first applicant left to live with the man she had married . The couple divorced in DATE .

In DATE a serious illness left the first applicant paraplegic . She kept her own home , but needed to be cared for by her mother and the third applicant , whom she regarded as her father . By agreement between the CARDINAL applicants , it was therefore decided that the third applicant should adopt the first applicant so that they could become a real family in the eyes of the law .

On DATE the third applicant filed an adoption request with ORG , enclosing CARDINAL letters attesting to the other CARDINAL applicants ' agreement .

On DATE ORG pronounced the adoption .

On DATE the cantonal civil status authorities informed the second applicant that the adoption had the effect of terminating her legal parent - child relationship with the first applicant and that the latter would take on her adoptive father 's surname , as she was henceforth his daughter . The first CARDINAL applicants objected to the termination of the mother - daughter relationship between them and requested that it be restored .

In a letter of DATE the cantonal civil status authorities announced that they were standing by their decision , which was based on LAW ( see “ Relevant domestic and international law ” , paragraph CARDINAL below ) . Under the provisions of that Article previously existing parent - child relationships were severed on adoption , save in respect of the spouse of the adoptive parent . PERSON and PERSON , however , were simply cohabiting .

On DATE the President of ORG , ORG formally rejected the request for restoration of the mother - daughter relationship . The applicants applied to the administrative court seeking to have that decision quashed and requesting a declaration that the adoption had not severed the mother - child relationship and that the adopted child could keep her name . On DATE the applicants instituted parallel proceedings in ORG to have the adoption order set aside . The court suspended the proceedings pending the outcome of the present application .

On DATE the administrative court partly allowed the application , setting aside the decisions of DATE and DATE in so far as they severed the mother - daughter relationship , and ordering the cantonal civil status authorities to restore that relationship .

On DATE ORG , having been informed of that decision , referred the matter to ORG .

On DATE ORG allowed the appeal and invited the cantonal civil status authorities to record the adoption in the civil status register . In its judgment ORG considered whether there was an omission in LAW with regard to the adoption by a cohabitant of his or her partner 's child . It pointed out that the adoption of the spouse 's child , whether considered as a form of joint adoption or as adoption by a single person , created a legal parent - child relationship between the child and the adoptive parent without severing the existing relationship between the child and its parent . It also pointed out that adoption should be in the interest of the child , so that joint adoption should be the rule and adoption by a single person the exception . ORG noted that adoption by a single person was not subject to any condition other than that of the child 's welfare . It concluded that adoption could satisfy that condition only if the link between the partners was strong and lasting , which in principle excluded cohabiting partners , between whom relationships were less stable than between married couples . That was also the reasoning behind the adoption of section CARDINAL , paragraph CARDINAL , of ORG of DATE , which entered into force on DATE and restricted sperm donation to married couples only . ORG reiterated in this connection that ORG had explicitly stated that the requirements in respect of sperm donation could not be less strict than those concerning joint adoption , a possibility which was open only to married couples , that a stable and lasting relationship between the parents was essential to the child 's healthy development , and that common - law partnerships were generally less solid than marriages and , unlike marriage , did not guarantee durability and could therefore not be compared with marriage . ORG thus held that Article CARDINAL a ) § CARDINAL of LAW could not be applied by analogy , and that there was no omission in the law that needed to be remedied . That court considered that the situation was that provided for in LAW § CARDINAL of LAW ( see “ Relevant domestic and international law ” , paragraph CARDINAL below ) . Concerning the Convention , ORG considered that Article CARDINAL did not embody the right to demand a form of adoption that was not provided for by law . Furthermore , the very essence of adoption being the forging of new family ties , prohibiting the accumulation of parent - child relationships was not at variance with LAW . As to LAW , ORG repeated that it referred only to marriage and did not confer a right to adopt . ORG also considered the complaint concerning the applicants ' unwillingness to accept the legal consequences of the adoption , and found that they could bring proceedings to have the adoption annulled for lack of consent . The judgment was served on the applicants on DATE .

The relevant provisions of LAW are as follows :

“ CARDINAL . Spouses shall only adopt jointly ; joint adoption shall not be open to other persons .

NORP The spouses must have been married for DATE or be DATE .

A spouse may adopt the child of the other spouse if the spouses have been married for DATE . ”

“ CARDINAL . An unmarried person may adopt a child alone if they are DATE .

NORP ... ”

“ I. Where there are no descendants , an adult or a person who has been declared incapable may be adopted :

NORP if he or she suffers from a physical or mental disability requiring permanent care and the adoptive parents have provided such care for DATE ;

NORP ...

III . For the remainder , the provisions on the adoption of minors shall apply by analogy . ”

“ CARDINAL . The child shall acquire the legal status of a child of the adoptive parents .

NORP The existing parent - child relationships shall be severed , save in respect of the spouse of the adoptive parent .

The child may be given a new forename upon adoption . ”

“ CARDINAL . If , for no lawful reason , consent has not been sought , the persons entitled to give consent may challenge the adoption in court , provided that this would not seriously prejudice the child 's welfare .

NORP This right does not , however , concern parents who have the possibility of appealing against the decision to ORG . ”

Section CARDINAL of LAW of DATE , which entered into force on DATE , provides for the possibility of having ORG judgments reviewed in the event that the ORG finds a violation of the LAW .

Section CARDINAL - Violation of LAW

“ Revision of a ORG judgment for violation of ORG DATE ( ORG ) may be requested under the following conditions :

a. when ORG , in a final judgment , has found a violation of the ORG or its protocols ;

b. compensation can not remedy the effects of the violation ;

c. revision is necessary to remedy the effects of the violation . ”

The relevant provisions of LAW April CARDINAL on the adoption of children , which entered into force in GPE on DATE , read as follows :

“ This Convention applies only to legal adoption of a child who , at the time when the adopter applies to adopt him , has not attained DATE , is not and has not been married , and is not deemed in law to have come of age . ”

“ CARDINAL . The law shall not permit a child to be adopted except by either CARDINAL persons married to each other , whether they adopt simultaneously or successively , or by CARDINAL person .

The law shall not permit a child to be again adopted save in CARDINAL or more of the following circumstances :

a. where the child is adopted by the spouse of the adopter ;

b. where the former adopter has died ;

c. where the former adoption has been annulled ;

d. where the former adoption has come to an end . ”

“ CARDINAL . Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock .

Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother .

When the rights and obligations referred to in paragraph CARDINAL of this article are created , any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist . Nevertheless , the law may provide that the spouse of the adopter retains his rights and obligations in respect of the adopted person if the latter is his legitimate , illegitimate or adopted child .

In addition the law may preserve the obligation of the parents to maintain ( in the sense of l'obligation d'entretenir and l'obligation alimentaire ) or set up in life or provide a dowry for the adopted person if the adopter does not discharge any such obligation .

As a general rule , means shall be provided to enable the adopted person to acquire the surname of the adopter either in substitution for , or in addition to , his own .

NORP If the parent of a child born in lawful wedlock has a right to the enjoyment of that child 's property , the adopter 's right to the enjoyment of the adopted person 's property may , notwithstanding paragraph CARDINAL of this article , be restricted by law .

NORP In matters of succession , in so far as the law of succession gives a child born in lawful wedlock a right to share in the estate of his father or mother , an adopted child shall , for the like purposes , be treated as if he were a child of the adopter born in lawful wedlock . ”

At its CARDINALth meeting , held in DATE , ORG instructed ORG Family Law to examine ORG . A working party on adoption was set up at DATE to draft a report making detailed proposals for a possible revision of that convention . In its final report ( CJFA - GTCARDINAL ( DATE ) CARDINAL ) the working party concluded that a new ( revised ) convention on the adoption of children should be elaborated as soon as possible .

On DATE , the draft revised ORG on ORG , as amended by the working party at its CARDINALth meeting , from DATE , was published . The revised version is based on the information contained in the working party 's final activity report .

The following are excerpts from the draft ( revised ) Convention and the corresponding explanatory report , as adopted by the working party at its CARDINALth meeting , from DATE , and by ORG at its CARDINALnd meeting , from DATE to DATE :

Text of the draft Convention ( revised ) :

Preamble

Considering that , although the institution of the adoption of children exists in the law of all member states of ORG , there are in those countries still differing views as to the principles which should govern adoption and differences in the procedure for effecting , and the legal consequences of , adoption ;

LAW )

“ CARDINAL . This Convention applies to the adoption of a child who , at the time when the adopter applies to adopt him or her , has not attained DATE , is not and has not been married and has not reached majority .

Article CARDINAL ( conditions for adoption )

“ CARDINAL . The law shall permit a child to be adopted :

a. by CARDINAL persons of different sex who

i. are married to each other , or

ii . where such an institution exists , have entered into a registered partnership together ;

b. by CARDINAL person .

States are free to extend the scope of this Convention to same - sex couples who are married together or who have entered into a registered partnership . They are also free to extend the scope of this LAW to different - sex couples and same - sex couples who are living together in a stable relationship .

LAW of an adoption )

“ CARDINAL . Upon adoption a child shall become a full member of the family of the adopter(s ) and shall have in regard to the adopter(s ) and his , her or their family the same rights and obligations as a child of the adopter(s ) whose parentage is legally established . The adopter(s ) shall have parental responsibility for the child . The adoption shall terminate the legal relationship between the child and his or her father , mother and family of origin .

Nevertheless , the spouse or registered partner of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child , unless the law otherwise provides .

As regards the termination of the legal relationship between the child and his or her family of origin , GPE Parties may make exceptions in respect of matters such as the surname of the child and impediments to marriage or to entering into a registered partnership .

GPE Parties may make provision for other forms of adoption having more limited effects than those stated in the preceding paragraphs of this article .

Commentary on the Articles of the Convention .

States are also free to extend the scope of the convention to different- or same - sex couples who are living together in a stable relationship . It is up to the GPE Parties to specify the criteria for assessing the stability of such a relationship .

ORG If ORG has extended the scope of the convention its provisions have to be applied mutatis mutandis .

LAW of an adoption )

“ CARDINAL . The revised convention mainly deals with “ full ” adoption ( which is an adoption that severs all ties with the family of origin ) without preventing those states that have “ simple ” adoption ( which is an adoption that does not sever the relationship with the family of origin so that the adopted child is not entirely integrated into his or her adoptive family ) from continuing to use this form of adoption .

The main object of this article is to ensure that an adopted child is treated from every standpoint like a child of the adopter and his or her family and that , in principle , all ties with the child 's family of origin should be severed .

According to paragraph CARDINAL , the parent whose child is adopted by his or her spouse or registered partner retains his or her rights and obligations in respect of the child , unless the law otherwise provides .


Violation of P1-1;Damage - question reserved;Costs and expenses award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE ( GPE ) .

Before DATE the applicant bought a house in GPE , which he had planned to use as a home for himself and his family . In order to purchase this building , he had incurred debts . Subsequently , in DATE he acquired by donation full ownership of another house , in GPE . The applicant alleged that he then changed his plans and wanted to sell the former house in order to pay off his debts and to move into the house in GPE with his family .

On DATE the house in GPE was seized by the ORG under a requisition order issued by ORG under LAW ( LAW of LAW ) .

On DATE the applicant was informed that possession of the house in GPE had been given to a certain Mr PERSON

In DATE the applicant introduced a judicial protest against the relevant government department . He alleged that the issuing of the requisition order and the allocation of his property to a third party was causing him hardship . In a judicial letter of CARDINAL DATE , ORG asked the applicant , in his capacity as owner of the house in GPE , to recognise Mr. PERSON as the tenant of the LOC ( section CARDINAL of LAW ) .

According to LAW , the applicant was entitled to receive a requisition rent for the use of his property . However the applicant alleged that no rent had ever been fixed or offered to him and since the date of the requisition he had received no compensation .

The applicant subsequently introduced a claim before ORG ( FAC ) . He alleged that the requisition order and the allocation of his property to a third party was in violation of LAW , as incorporated into NORP law by LAW of DATE ( LAW ) . The applicant has not produced the documents pertaining to these proceedings and has not informed the ORG about their outcome .

On DATE , while the first proceedings were still pending , the applicant introduced a second claim before ORG ( FAC ) , alleging a breach of his right to the enjoyment of his property . He requested ORG to issue the orders and directions needed to redress the violation of his fundamental rights , including , if necessary , a declaration that the relevant sections of LAW had been abrogated by LAW .

NORP In a judgment of DATE , ORG declared the applicant 's claim incompatible ratione temporis with the provisions of LAW , as the facts complained of had occurred before its entry into force on DATE . The requisition had been effected in accordance with the law which was in force at the time , and no violation of the applicant 's fundamental rights could be established .

The applicant appealed to ORG .

In a judgment of CARDINAL DATE , ORG rejected the applicant 's claim .

It considered that the situation complained of was a continuing one and the applicant was accordingly affected by it after DATE . Therefore , the facts of the case fell within the competence of the domestic courts .

As to the merits of the applicant 's claim , ORG noted that the only evidence produced by the applicant was a report of his architect , which stated that the rental value of the house was CARDINAL NORP Liras ( ORG ) ( MONEY ( ORG ) ) per year at the time of the requisition , and ORG ( approximately FAC ) per year at the date of the report ( DATE ) . However , when the defendant declared that the rental value as fixed by ORG was ORG ( approximately LAW ) per year , the applicant did not produce any new evidence in rebuttal . According to ORG , this constituted a manifest fault on the applicant 's part . Furthermore , he never initiated proceedings before ORG for the determination of a fair rent for his house .

ORG also noted that in the implementation of policies of a socio - economic nature the margin of appreciation of the ORG was very wide . It quoted the case of PERSON v. GPE ( no . ORG report of CARDINAL DATE ) and an excerpt from PERSON and PERSON book “ Theory and Practice of the European Convention ” concerning the interpretation of the notion of “ general interest ” . In the light of the above , ORG held that the applicant had proved neither the hardship he alleged nor a violation of LAW .

According to section CARDINAL of the Housing Act requisition means :

“ to take possession of a building or require the building to be placed at the disposal of the requisitioning authority . ”

Until DATE the ORG Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest for providing living accommodation to certain persons or for ensuring a fair distribution of living accommodation . As in force at the time of the requisition of the applicant 's house , section CARDINAL(CARDINAL ) of LAW read as follows :

“ The Secretary , if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation , may requisition any building , and may give such directions as appear to him to be necessary or expedient in order that the requisition may be put into effect or complied with . ”

After DATE the authority to issue requisition orders was given to ORG .

A requisition order imposes on the owner of the requisitioned LOC a landlord - tenant relationship . According to section CARDINAL(CARDINAL ) of LAW , ORG may require the owner to recognise the person accommodated in his property as his tenant or sub - tenant .

The owner of the LOC may seek authorisation for non - compliance with this request in accordance with section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , which , in so far as relevant , provides :

“ ( CARDINAL ) Within DATE of service on him of a judicial letter under the last preceding sub - section , the requisitionee , by application to FAC in contestation of the Director , may pray for an authorisation of non - compliance with that request ...

( CARDINAL ) The court shall not grant the authorisation of non - compliance mentioned in DATE sub - section unless the applicant shows to the satisfaction of the court that serious hardship would be caused to him by complying with that request :

Provided that the assertion that the requisitionee wishes to take possession of the building for his own use or for the use of any member of his family shall not be considered of itself as a hardship for the purposes of this sub - article . ”

According to LAW , the owner of the LOC has a right to compensation , which is calculated and payable pursuant to the criteria established in LAW , which , in so far as relevant , reads as follows :

“ ( CARDINAL ) Subject as hereinafter provided , the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums , that is to say-

( a ) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this LAW , under a letting granted immediately before the beginning of that period :

Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of LAW , the rent shall not exceed the fair rent as defined in LAW ;

( b ) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained ( except in so far as the damage has been made good during that period by the occupant of the requisitioned LOC or by a person acting on behalf of ORG ) , no account being taken of damage which , under the provisions of this LAW , is the responsibility of the requisitionee ;

( c ) a sum equal to the amount of expenses reasonably incurred , otherwise than on behalf of the Director , for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking of possession of the building ... ”

According to LAW , “ fair rent ” means :

“ i ) in respect of an old house , the rent which might reasonably be expected in respect of an old house , regard being had to the average rents prevalent on DATE , as shown on the registers of ORG in respect of comparable dwelling houses in the same or in comparable localities :

Provided that where , after DATE , structural alterations or additions in a house , whether old or new , have been carried out which , in the opinion of ORG , have enhanced the rental value of the house and in respect of which or , as the case may be , of a part of which , no compensation has been paid or is payable under the provisions of the War Damage Ordinance CARDINAL , and no amount has been paid or is payable by way of a grant by ORG of GPE , the rent shall be increased by an amount which , in the opinion of ORG , corresponds to the enhancement of the rental value and which shall in no case exceed a return of DATE a year on the capital outlay on the alterations or additions ( excluding any interest on loans or in respect of idle capital ) or , as the case may be , on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance CARDINAL , and no amount has been paid or is payable by way of grant by ORG of GPE , in every case as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG ; and

ii ) in respect of a new house , a sum equivalent to a return of CARDINAL per centum a year on the freehold value of the site and of CARDINAL per centum on the capital outlay on construction ( excluding any sum which has been paid or is payable by way of a grant by the Government of GPE and any interest on loans or in respect of idle capital ) as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG :

Provided that where a payment under LAW , is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part , for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed DATE fair rent of the former building as on CARDINALst March,CARDINAL , or CARDINAL per centum for DATE on that part of the capital outlay , whichever is the less ;

( iii ) in respect of a scheme house , an DATE sum to be determined by agreement ... ”


The applicant is a NORP citizen born in DATE and currently residing in GPE , GPE . In the proceedings before the ORG she is represented by PERSON of ORG , solicitors of GPE , GPE .

The facts of the case , as they have been submitted by the applicant , may be summarised as follows :

The applicant was born in GPE and has lived there all her life . The applicant met her husband , PERSON a NORP citizen , in DATE and started to cohabit shortly after DATE . On DATE , Mr PERSON had been admitted to GPE as a visitor for DATE subject to a condition prohibiting employment . Mr PERSON did not seek to regularise his stay in GPE . His status was discovered when he was acquitted on drugs charges on DATE . At this time , Mr PERSON admitted to immigration officers that he had undertaken casual labouring work and that he knew he had overstayed his leave to remain . He was served with a notice of intention to deport and detained . He was released on bail on DATE . On DATE the applicant and Mr PERSON married and on DATE their daughter was born .

Mr PERSON ’s appeal against the decision to deport was dismissed on DATE and he was refused leave to appeal to ORG on DATE .

In DATE the applicant ’s previous solicitors applied , on Mr PERSON ’s behalf , to ORG to grant him further leave on the basis of his marriage to the applicant or in the alternative on the basis of their cohabitation .

Immigration officers called at the applicant ’s home to investigate if the marriage was genuine and discovered that Mr PERSON had been arrested on DATE for drug dealing . On DATE , Mr PERSON was sentenced to DATE imprisonment for possession with intent to supply crack cocaine . In the immigration service marriage questionnaire the applicant stated that she would accompany Mr PERSON if he was deported . The applicant says that she and her daughter visited Mr PERSON every fortnight since his conviction and maintained regular phone contact . On DATE , the Secretary of ORG signed a deportation order against Mr PERSON .

In DATE , the applicant ’s solicitors asked ORG to revoke the deportation order and to grant PERSON leave to stay . On DATE , the Secretary of ORG refused . On DATE , the Secretary of ORG confirmed that PERSON would be deported on his release on parole on DATE .

By this time , the applicant was expecting her second child in DATE . The applicant ’s solicitors sought leave to apply for judicial review of the ORG decision but ORG refused on DATE .

A revised decision dated DATE from the Secretary of ORG stated :

" insufficient evidence has been produced to substantiate the claim that a common - law relationship akin to a marriage has subsisted since DATE , or at any time prior to the initiation of deportation proceedings against Mr PERSON . ... as < the applicant > and the children of the marriage will be given the opportunity of accompanying PERSON PERSON on deportation , at public expense if necessary , the Secretary of ORG is of the view that any interference with family life would be minimal and would be justifiable when set against the need to maintain an effective immigration control . "

ORG refused leave to apply for judicial review on DATE . Mr PERSON was deported to GPE on DATE .