CASE OF BROSSET-TRIBOULET AND OTHERS v. FRANCE

Anatoly Kovler;Antonella Mularoni;David Thór Björgvinsson;Elisabet Fura;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych;Zdravka Kalaydjieva

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

On DATE purchased GPE in LOC from NORP , by contract signed before a notary .

By a decision of DATE , the Prefect of GPE authorised A. to build a dyke on a parcel of maritime public property situated on land belonging to the municipality of GPE for the purposes of installing a QUANTITY by QUANTITY approach ramp on it from which he could reach LOC , in particular , by boat .

By a decision of CARDINAL DATE , the ORG authorised A. to enlarge the dyke . The relevant parts of the decision read as follows :

“ ... From the point of view of conformity with the requirements of ORG , the dyke – once enlarged as requested DATE can not interfere with navigation in any way , on condition that it is levelled above the high and spring tide water marks , or with maritime coastal traffic on condition that it is accessible to the public at all times .

Regarding the fee to be charged ... the permittee shall pay an DATE fee of MONEY . ...

In the event that this authorisation is revoked , the permittee must , if requested , restore the site to its original state . Should he fail to fulfil this obligation , the authorities shall do so of their own motion and at his expense . Any advance payments shall be reimbursed by the permittee on the basis of instruments enforceable at the ORG 's request ... ”

On DATE a deed of sale concluded before PERSON , a notary , was published in ORG . By that deed , PERSON transferred ownership of ORG to Mr S.

The registration of this deed by ORG , in so far as it relates to the dyke in particular , reads as follows :

“ ... Entry into possession – The purchaser shall acquire ownership of LOC hereby conveyed to him from the date hereof and by virtue of this deed and shall take possession thereof from DATE . ...

Mr [ A. ] declares that by a decision of the Prefect of GPE dated DATE CARDINAL and by another decision dated DATE August nineteen hundred and eleven , he acquired at the place known as Pen - er - men a stretch of land measuring CARDINAL square decimetres , registered in the land register of the municipality of GPE under section number CARDINAL for the purpose of building a dyke with a steel ramp measuring QUANTITY . This concession was granted to him on the express condition that the dyke be accessible to the public and in consideration of an DATE fee of MONEY and MONEY subject to review DATE . Accordingly , Mr [ A. ] hereby assigns all his rights relating to this stretch of land to the purchaser together with all structures erected by the vendor thereon and declares that there is no other positive or negative easement ... ”

By a decision of CARDINAL DATE the ORG granted PERSON 's widow , the applicants ' mother 's aunt , authorisation to occupy the dyke for DATE , specifying that the “ dyke shall have a total surface area of QUANTITY . m , but that the condition of accessibility to the public shall reduce the taxable surface area to CARDINAL sq . m ... a strip of land running the entire length of the dyke shall be reserved ... as a public right of way ” .

The applicants ' mother acquired from her aunt , by inter vivos gift drawn up before a notary and published in ORG on DATE , a dwelling house built on the above - mentioned dyke :

“ There appeared before me

PERSON , widow of PERSON , who has ... made an inter vivos gift to ...

PERSON , widow of General PERSON , her niece

of the property belonging to her in the municipality of GPE called LOC .

Description : the Isle of Irus hereby conveyed comprises the entire island and all the immovable property of which it is composed , registered in the land registry as an area of QUANTITY ...

Conditions : The gift is made on the following conditions ... The donee shall take the property in its current state without any right of action against the donor on any ground whatsoever and shall enjoy the property from DATE , which is the date of entry into possession . ... She shall pay taxes and insurance premiums against fire from DATE .

Civil status – authorisation ... The said gift was authorised by ORG on DATE . ... ”

By a series of decisions , issued , inter alia , on DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and DATE , the Prefect of ORG authorised occupation of the dyke in question in consideration of payment of a fee . The decision of DATE refers to renewal of the decision of DATE authorising occupation of a dyke ; those of DATE and DATE refer to the dyke and house . The prefect 's decision of DATE did not authorise occupation of the public property beyond CARDINAL DATE . The decisions stated that “ the dyke can not interfere with navigation in any way , on condition that it is levelled above the high and DATE tide water marks , or with maritime coastal traffic on condition that it is accessible to the public at all times ” . The authorisation forms specified that , in accordance with LAW , “ the authorities reserve the right to modify or withdraw the authorisation should they deem it necessary , on any ground whatsoever , without the permittee thereby acquiring a right to claim any compensation or damages in that regard . The permittee must , if required , restore the site to its original state by demolishing the constructions built on the public property , including those existing on the date on which the decision was signed . Should he fail to comply with that obligation , the authorities shall do so of their own motion and at his expense ” .

In the meantime , in DATE , ORG from LOC had written to the director of ORG in GPE in the following terms :

“ You have submitted to me for observations and opinion a request for renewal of temporary occupation of maritime public property made by [ the applicants ' mother ] . This request concerns a dyke of a surface area of QUANTITY . m , reduced to a taxable surface area of CARDINAL sq . m , on which a dwelling house has been built . The DATE fee proposed by ORG is MONEY . The case gives rise to the following observations : Article R QUANTITY of the Code of ORG provides that any fee payable to ORG must take into account the advantages of any kind procured to the concessionaire . In the aforementioned case , there is no doubt that the concession of the dyke in question procures a not inconsiderable advantage to the applicant : in particular , it allows her to save on the capital that would otherwise be invested in the purchase of a building plot in the area in question ... In these circumstances I find it fully acceptable to retain a sum corresponding to the amount of interest calculated at the very reduced rate of PERCENT of the value of the land conceded . ... ”

On DATE the applicants ' mother applied to the Prefect of Morbihan for renewal of the occupancy agreement .

In a letter of DATE , the ORG reminded her that the authorisation to occupy the house granted in DATE had expired on DATE . He informed her that the entry into force of Law no . CARDINAL of CARDINAL DATE on ORG ( hereafter “ LAW ” ) , and particularly section CARDINAL , prevented him from renewing the said authorisation on the former terms because the use of public property had to take account of the designated purpose of the areas concerned , which ruled out any private use , including dwelling houses . However , having regard to the long period of occupation and the applicants ' and their mother 's sentimental attachment to the house in question , the ORG said that he was willing to consider , exceptionally , granting limited authorisation restricting use of the property to strictly personal use and prohibiting any sale or transfer of the land and house , any work thereon other than maintenance , and reserving an option to the ORG , on expiry of the authorisation , to have the property restored to its original state or to reuse the buildings . He concluded by asking her to let him know quickly whether these conditions met with her approval so that “ an illegal situation that had lasted DATE could be regularised ” .

The applicants ' mother refused the offer . By way of counterproposal , she sought a permit to build a dyke that would be valid as a transfer of ownership under LAW of LAW ( see paragraph CARDINAL below ) .

On DATE the ORG rejected the applicants ' mother 's request but maintained his initial offer of an occupancy agreement subject to conditions :

“ You have asked me to consider the possibility of having the dyke built on maritime public property that you occupy at Pen - Er - Men reclassified as private property , apparently with a view to acquiring the dyke and the property built on it ...

I regret to inform you that the classic method of conceding property whereby the concessionnee of the property acquired full title , under LAW of LAW , to land that had been drained was abandoned by ministerial circular DATE , on grounds of lack of proven general interest . Your request goes against this policy and I repeat the conditions stipulated in my letter of DATE with a view to regularising your situation .

Regularisation in this way could be done on the terms set out in the draft agreement attached . I should point out that the property fee will be adjusted upwards in order to take account of the particular nature of the occupancy of the property . ”

On DATE the applicants ' mother applied to ORG for the ORG 's decision of DATE rejecting her request for a permit to build a dyke to be set aside .

On DATE the ORG informed the applicants ' mother that he was considering drawing up an official report recording the administrative offence of unlawful interference with the highway with a view to formally establishing the unlawful occupancy of public property . That official report was drawn up on DATE and served on the applicants ' mother on DATE . On DATE , on the basis of the finding of illegal occupancy of public property and in accordance with LAW of LAW ( see paragraph CARDINAL below ) , the ORG lodged an application with ORG for an order against the applicants ' mother to pay a fine and restore the property to its original state , that is , prior to construction of the house .

In CARDINAL separate judgments delivered on DATE , ORG ruled on the application lodged by the applicants ' mother on CARDINAL DATE ( case no . DATE ) and the application lodged by ORG DATE ( case no . CARDINAL ) .

NORP The court ruled as follows in respect of the applicants ' mother 's application for the ORG 's decision rejecting her request for a permit to build a dyke to be set aside :

“ In accordance with LAW of LAW , “ the ORG may concede , on conditions it shall determine ... the right to build a dyke ” . Whilst section CARDINAL of the aforementioned LAW DATE has reduced the scope of application of that Article , it does nonetheless specify that “ land draining carried out prior to the present Act shall continue to be governed by the previous legislation ” . Accordingly , the only provisions applicable to the present case are LAW of the aforementioned LAW and ORG of DATE , which provides that ... “ subject to any contrary provisions of deeds of concession , land artificially removed from the action of the tide shall be incorporated into the category of maritime public property ” . In rejecting the request on the basis of the principles and guidelines laid down in the inter - ministerial circular of CARDINAL DATE setting out the policy to be followed for the use of maritime public property , the Prefect – when examining the applicant 's particular situation involving an application for a concession – did not err as to the scope of the circular in question , which neither repeals nor amends the above - mentioned legislative provisions but is limited to applying them .

The aforementioned circular , which instructs the authorities responsible for deciding whether or not to grant concessions to build dykes not to transfer title to the plots of land thus created and to accept only installations designed for collective use , to the exclusion of private dwellings , was issued in respect of an area in which the relevant authorities have discretionary power . In referring to the principles laid down in the circular , the ORG does not appear to have interpreted the legislative provisions inaccurately ; nor did he fail to consider the specificity of the applicant 's proposal before concluding that there was no special factor justifying an exemption from the instructions analysed above . ”

In case no . DATE ORG granted the ORG 's application of DATE , on the following grounds :

“ ... The rules governing public property

“ ... The purpose of prosecuting someone for the administrative offence of interference with the highway is to preserve the integrity of public property . As can be seen from the judgment delivered by the court DATE in case no . CARDINAL , the land on which PERSON dwelling house was built is indeed public property .

The administrative courts base their determination of the substance of artificial public property on the judicial interpretation of any private deeds that may be produced whose examination raises a serious difficulty . In the present case the dyke and the house are not publicly owned property , given the exclusively private use made of them and the fact that they do not belong to a public authority . Accordingly , as it is not seriously disputed that the property in question has been appropriated for private use , it is not necessary to adjourn the application . ...

Whether there has been unlawful interference with the highway

... Whilst PERSON has full title to the dwelling house occupied by her and maintains that she is therefore not the unlawful occupant of public property , the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a concession to build a dyke or another type of concession . The investigation into the facts and , in particular , the absence of any documents evidencing that a concession was granted show that the dwelling house in question was illegally built on maritime public property . Accordingly , the ORG is justified in requesting an order against PERSON to pay a fine and restore the seashore to its original state prior to the construction of the house ... This must be done within DATE of service of this judgment ... . On the expiry of that period , PERSON shall pay a fine of MONEY per day 's delay in the event of failure to comply with the present judgment and the authorities shall be authorised to enforce it at the cost and risk of the offender . ”

On DATE the CARDINAL applicants , acting in their capacity as their mother 's heirs after her death , lodged an appeal against the judgment delivered in case no . DATE . On DATE they appealed against the judgment delivered in case no . CARDINAL .

By a judgment of DATE , ORG decided to join the CARDINAL sets of proceedings on the ground that they were connected and to dismiss the applicants ' appeals .

With regard to the application relating to the offence of unlawful interference with the highway , the court noted first of all that PERSON had died during the proceedings and decided that the prosecution was therefore now extinguished . In respect of the ORG property proceedings , ORG gave the following reasons for its decision :

“ ... Firstly , it is not disputed that the parcel of land on which the dyke on which the house was built ... was entirely covered by water , independently of any exceptional meteorological circumstances , prior to the draining works undertaken in order to build the dyke . It has not been established , or even alleged by the applicants moreover , that the undrained portion of this land had ever been removed from the action of the tide . The investigation shows , moreover , that the dyke is the result of land draining carried out prior to the entry into force of LAW of DATE and that , notwithstanding the various authorisations of temporary occupancy granted by the authorities , as this was not done in the manner prescribed for concessions for the construction of a dyke it has not had the effect of bringing this part of the land thus removed from the action of the tide outside the category of maritime public property . In accordance with the principles of inalienability and imprescriptibility of public property , the submissions by PERSON and Ms Brosset - Pospisil to the effect that the house was built legally and its occupancy accepted by the authorities for a very long time and tolerated even after the expiry of the last authorisation to occupy it do not alter the fact that the land falls within the category of maritime public property .

Secondly , as has been said , the last decision authorising temporary occupancy of the maritime public property ... expired on DATE . In the absence , since that date , of a lawful title of occupancy , the ORG is justified in requesting an order against the occupants to restore the site DATE if they have not already done so – to its original state prior to construction of the house on maritime public property . In disputing that obligation , the applicants can not properly rely on DATE of occupancy of the LOC or on the fact that the authorities have tolerated the continuation of that occupancy since DATE and proposed draft occupancy agreements to Ms Brosset in order to regularise the situation , which , moreover , she has not taken up . ...

Fifthly , [ the obligation to restore the site to its original state ] does not constitute a measure prohibited by the requirement of LAW No . CARDINAL that no one shall be deprived of his possessions except in the public interest . ”

Regarding the refusal to grant a concession to build a dyke , ORG held as follows :

“ ... Secondly , as section CARDINAL of the above - mentioned LAW DATE provides that draining works carried out prior to enactment of that Act shall continue to be governed by the previous legislation , the provisions codified under LAW of LAW according to which “ the ORG may concede , on conditions it shall determine ... the right to build a dyke ... ” are applicable .

The Prefect of GPE based his decision not to grant PERSON the requested concession to build a dyke on the guidelines set out in the circular of DATE issued by the Minister for ORG and the Minister for Regional Development on the use of public property other than commercial or fishing ports . He did not discern any general - interest ground in favour of granting the applicant 's request .

By instructing the authorities responsible for granting concessions to build a dyke not to allow any plot of land whatsoever falling into the category of public property to be reclassified as private property with a view to transferring full title thereto , the ministers signatory to the circular of DATE did not adopt any legal rules amending or supplementing the above - mentioned provisions of LAW of LAW but confined themselves to applying them . Accordingly , as stated above , the plot of land in question is ORG - owned public property . There is no evidence in the case that the ORG , before reaching his decision , either failed to examine the particular circumstances of PERSON request or made a manifest error of assessment in concluding that there was no special feature or general - interest consideration in the case justifying an exemption from the above - mentioned rules ” .

On DATE the applicants lodged an appeal on points of law against the judgment of DATE . They submitted that in the absence of proof , which logically they could not have as they had acquired by gift a house already built on a previously constructed embankment , they had shown that the only legal means of building a dwelling house on a parcel of land supposedly falling within the category of public property was to obtain authorisation of temporary occupancy for private use of that land that did not expressly exclude the possibility of such an edifice being built on it . They concluded from this that the construction of a house , of which the authorities were aware and which they had accepted , had resulted in full title to the house passing to the occupants of the land . If this were not the case , it was for the ORG to provide proof that the draining works undertaken at DATE had been illegal . The applicants also submitted that the penalty was disproportionate and that , in the absence of justification on grounds of the general interest , compensation should be paid for the damage wrongly caused .

The Government Commissioner pointed out , in the same submissions as those made in a similar case , that the value in DATE 's terms of the purchase price of the house was QUANTITY ( ORG ) . He continued as follows :

“ ... The appellants have not acquired any property right over their houses ; nor have they acquired rights in rem over public property as a result of the successive transfers . Given the precarious situation of the buildings , the market value could not be established without taking account of that essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up ... . Lastly , and despite the fact that we are not especially enthusiastic about the outcome of this case , we have no alternative but to dismiss the appellants ' pleadings . ... They probably committed a tactical error in refusing the ORG 's reiterated offer . Even if they were not exactly delighted by the prospect , it was at least preferable to a straightforward demolition order which will have to be judicially enforced at their expense . All hope is perhaps not lost of renewing contact with the authorities with a view to finding what might be a less drastic solution .

There may be a case for suing the ORG in tort for allowing occupants of public property to nurture for DATE the hope that they would not be ruthlessly compelled to demolish their property . It should be pointed out that the prospects of success of such an action are fairly slim , however , given the legitimate protection enjoyed by public property . In any event , it is clear that if the public authority were to be found liable , the offenders would bear a considerable portion of liability too . ”

By a judgment delivered on DATE the ORG d'Etat dismissed an appeal lodged by the applicants . It held that they could not rely on any right in rem over the land in question or over the buildings that had been erected on it and that the obligation to restore the land to its original state without any prior compensation was therefore not a measure prohibited by LAW .

On DATE the director of ORG for the Morbihan département wrote to the applicants in the following terms :

“ I have received some information from ORG . It appears first of all that your house was not specifically listed by ORG when they drew up an inventory for the LOC in DATE . However , ORG is well documented , as can be seen from a photograph available at ORG , in which your house appears very clearly . Furthermore , ORG has told me orally that if an inventory of the Vannes - Ouest district were to be carried out DATE , your house , and others in the same situation , would definitely be listed .

In any event , ORG could usefully make submissions on your behalf to ORG for the département , among others , with a view to protecting the region 's cultural heritage if a further threat of demolition were to be made .

As regards , lastly , the possible classification or registration of your house in the supplementary list of historical monuments , you should not count on this , firstly because the ORG does not consider you as owner and secondly because it is inundated with requests , especially in the GPE . For the time being , given that ORG appears kindly disposed to your problem , I am not particularly worried . ”

In DATE the housing tax on the house came to ORG CARDINAL and the land tax to ORG CARDINAL . The applicants produced a valuation of their house prepared by an estate agent in DATE : “ a dwelling house made of stone built in DATE ... Having regard to the geographical situation of the property , the condition of the building , the surface area , its location on maritime public property and the local property market , and subject to the owners ' ability to produce a concession agreement in respect of maritime public property , this property is worth CARDINAL ” .

The idea that the foreshore is “ common property ” , that is , can not be appropriated for private use and is managed by the public authorities , dates back to NORP times , when even then a permit was necessary in order to build on the seashore . PERSON 's Ordinance of the NORP of DATE codified the principle and up until recently was still the legal basis for the ORG 's management of maritime public property . In addition to defining what constituted the “ seashore and foreshore ” , it laid down the applicable rules : “ No one shall build on the foreshore , set stakes in the ground or erect any construction that may interfere with navigation , on pain of demolition of the constructions , confiscation of the materials and discretionary fines ” . At the time of the ORG , the idea developed that maritime public property was governed by the Government in the interest of the nation , and not merely as part of the heritage that used to belong to the ORG and now belongs to the ORG . The management of maritime public property is still largely guided by this principle DATE . Over and above the idea of ORG ownership of such property , the conservation and management of it are more a matter of implementation of a policy regarding its use than the exercise of the owner 's “ civil ” rights . The prefect has a major role in the protection of maritime public property . He is the authority who , generally , governs the use of the property at local level , decides whether or not to allow private occupancy and protects the integrity of the property by prosecuting offenders ( source : www.mer.gouv.fr , consulted on DATE ) .

ORG 's Ordinance of the NORP was definitively repealed in DATE . Since DATE LAW owned by ORG ( Code general de la propriété des personnes publiques – “ the ORG ” ) has replaced LAW ( dating from DATE ) . It restructures the law governing ORG - owned land and public bodies and combines the rules governing maritime public property into a whole , including provisions relating to the environment in particular .

Maritime public property , determined on the basis of natural phenomena , lies between the highest point of the shore , that is , up to the high tide mark under normal meteorological conditions ( ORG , PERSON , DATE ) and the boundary of the territorial waters , seaward . Under PERSON DATE of the ORG , “ State natural maritime public property shall comprise :

The seabed and marine substrata between the external boundary of the territorial waters and , on land , the foreshore .

The foreshore comprises the whole area covered ( and uncovered ) by the sea , up to the high tide mark under normal meteorological conditions ;

The beds and sub - strata of salt pans communicating directly , naturally and permanently with the sea ;

Land naturally reclaimed from the sea :

a ) which was part of the ORG 's private property at DATE , subject to third - party rights ;

b ) DATE which has been constituted since DATE .

Land reserved for public - interest maritime , seaside or tourist needs which has been purchased by the ORG .

' Land artificially removed from the action of the tide shall remain in the category of natural maritime public property unless otherwise stipulated in legally concluded and lawfully executed deeds of concession transferring ownership ' . ”

The principle of inalienability of public land , which was established in the case - law and then incorporated into the Code of State Property ( Article L. CARDINAL ) and the ORG ( Article PERSON ) , is inextricably linked to the notion of public land . The basis of this principle is the designation of land for public use . As long as it remains thus designated , and no express decision has been taken reclassifying particular public land as private property , no transfer of land can be authorised . It is a means of preventing public land from being acquired by prescription or adverse possession under private law , hence the principle of imprescriptibility that is very often associated with the principle of inalienability . Accordingly , in its PERSON judgment , on the subject of plots of land situated close to the seashore in LOC the ORG d'Etat found that “ whilst the public authorities have authorised various building works on this land and on several occasions waived their right to apply the rules governing public land ... , neither the founders of the société du domaine des prés salés nor the company itself have been able to acquire any property right over the land , which , being part of public land , was inalienable and imprescriptible ” .

ORG has stated that inalienability is limited to precluding the transfer of public property that has not first been reclassified as private property ( ORG , no . PERCENT of DATE , ORG ) . It has not , however , recognised that the principle of inalienability has any constitutional status ( ORG , DATE . no . CARDINAL - CARDINAL of DATE , Rights in rem over public property ) . The ORG d'Etat has recently reiterated that “ where property belonging to a public authority has been incorporated into the category of public land by virtue of a decision classifying it thus , it shall remain public land unless a decision is given expressly reclassifying it as private property ” . Accordingly , it has held that the question whether or not short - stay factories fell into the category of public property was not affected by the fact “ that these short - stay factories were intended to be rented or assigned to the occupants or that the occupancy leases granted were private - law contracts ” ( CE DATE , PERSON ) .

The effect of the principle of inalienability is that any transfer of public land that has not been “ reclassified ” is null and void , so third - party purchasers have a duty to return the land even if they have purchased it in good faith . Moreover , the fact that public land is inalienable means – in theory – that no rights in rem can be established over it . However , the legislature has departed from this principle by passing CARDINAL Acts , CARDINAL of CARDINAL DATE which creates long administrative leases , and the other of CARDINAL DATE on the constitution of rights in rem over public land , thus making it possible to grant private rights in rem to occupants of maritime public property . LAW of DATE concerns only public land belonging to local and regional authorities or groups thereof . LAW DATE relates to artificial maritime property and immovable constructions and installations built for the purposes of an authorised activity ( Article L. CARDINAL - CARDINAL of the Code of ORG and Article L. CARDINAL - CARDINAL of the ORG ) . In its above - mentioned decision of DATE , ORG held that granting rights in rem in this way was compatible with the LAW as public services were maintained and public property protected under LAW . However , it declared the provision allowing the renewal of authorisation beyond DATE unconstitutional on the ground that it could potentially render ineffective the public authority 's right to the automatic return , free of charge , of any constructions and therefore undermine the “ protection due to public property ” .

The last consequence of the principle of inalienability is that property belonging to public authorities can not be seized ( Article L. CARDINAL - CARDINAL of the ORG ) . This consequence has been attenuated by a decision of the PERSON d'Etat in a case which subsequently came before ORG NORP fermière ORG v. GPE , no . CARDINAL , DATE ) .

Apart from public easements intended to protect public property from the encroachment of private properties , such as a QUANTITY wide right of way along the coast over properties adjoining maritime public property , created by an LAW DATE reforming town and country planning , the land conservation policy guarantees the protection of the physical integrity of maritime public property and compliance with its designated use . Offenders are prosecuted for unlawful interference with the highway on grounds of infringement of the land conservation policy . An interference of this kind is liable to a criminal fine imposed by the administrative courts and the offender is required to restore the site to its original state . The relevant provisions on unlawful interference with maritime public property no longer refer essentially to navigation but take account of the protection of coastal areas for their own sake ( Articles L. DATE and PERSON of the ORG ) .

According to the ORG d'Etat , conservation agencies have a duty to prosecute offenders ( ORG “ des amis des chemins de ronde ” , DATE ) . Regarding a plot of land incorporated into maritime public property at ORG beach ( southern Corsica ) , the PERSON d'Etat decided that “ the fact that ORG produced title deeds to the property in question and had been authorised to build on the land under the regional planning legislation , as distinct from the legislation governing maritime public property , does not mean that the offence of unlawful interference with the highway has not been made out and , in any event , can not preclude prosecution by the Prefect ... ” ( CE , no . CARDINAL , DATE ) . With regard to repairing damage caused to public property , the actual attitude adopted by the authorities prior to bringing proceedings for unlawful interference with the highway has been deemed to give rise to rights in favour of the offender , including the right not to assume personal responsibility for restoring the site to its original state ( CE , GPE , DATE ) .

The use of maritime public property may be collective or private . Collective use which allows all citizens to benefit from public property ( navigation on watercourses , beaches ) is freely exercisable , equally available to all and free of charge . However , the principle that use is free of charge has not been expressly incorporated into the ORG because it is subject to numerous exceptions .

Private occupancy must be compatible or in conformity with the designated use of the public property . Unlike collective use , it is subject to authorisation , issued personally , and a charge and is of a precarious nature .

Article L. CARDINAL of the Code of State Property ( Article L. CARDINAL - CARDINAL of the ORG ) provided that

“ Subject to authorisation being issued by the competent authority , no one may occupy any national public property or make use thereof over and above the right of use vested in everyone .

ORG shall record any infringement of the provisions of the preceding paragraph with a view to instituting proceedings against illegal occupants , recovering compensation for charges in respect of which ORG has been defrauded , without prejudice to the institution of proceedings for unlawful interference with the highway . ” [ Article A CARDINAL specified that authorisation was revocable without compensation ] .

According to the ORG d'Etat , “ whilst the authorities may , as part of their management powers , authorise DATE provisionally and on the conditions provided for by the rules in force – private occupancy of the said land , that authorisation can not legally be granted unless , having regard to the requirements of the general interest , it is compatible with the designated use of the land that the public are normally entitled to exercise , and with the obligation incumbent on the authorities to conserve public land ” ( CE , Commune de SaintBrévinlesPins , CARDINAL DATE ) .

The precariousness of these authorisations derives from the principle of inalienability , according to which the protection DATE and accordingly the disposal – of public land is vested in the authorities . According to the case - law , “ any authorisation to occupy public land is precarious and revocable . Consequently , the fact – assuming it is made out DATE that , prior to adoption of the decision being challenged , PERSON had been granted authorisation to occupy the part of common public property ... does not affect the lawfulness of the mayor 's decision requesting him to demolish the buildings he had erected and restore the public land to its original state ... ” ( CE , PERSON , DATE ) . It also states very clearly that those to whom authorisation has been granted have not thereby “ acquired rights ” to renewal of the authorisation ( CE , Helie , DATE ) .

The conditions of occupation of public property are determined either in unilateral concessions granted by the authorities ( of the type referred to above in LAW of LAW ) or in contracts signed with the occupant . The latter are called concessions to occupy public land , which DATE on maritime public property – may be a beach concession or a concession to build a dyke . By means of this concession , the ORG authorises the concessionaire to carry out works on the foreshore by which land is removed from the action of the tide . In respect of natural maritime public property an arrangement was established in DATE , traditionally called a concession to build a dyke and by which ownership was transferred ( former LAW of LAW ) : the concessionaire was authorised to drain land , which , once removed from the action of the tide , no longer fell within the definition of natural maritime public property and could therefore be reclassified as private property and transferred by the ORG . That arrangement , which was originally used to build agricultural polders , has more recently been used for property developments in the form of marinas , reclaimed from the sea . Following a reaction to what was perceived as a privatisation of the shore , a circular was issued in DATE prohibiting such arrangements – a prohibition later confirmed by LAW , which imposes a broader prohibition on any interference with the natural state of the shore . It is now no longer possible to build marinas or polders by means of concessions to build dykes by which ownership is transferred . This arrangement can now apply only to past draining works and is the sole means of legalising these ( source : www.mer.gouv.fr ) .

Up until DATE maritime public property was protected by the rules governing the highways . LAW introduced new rules for the protection of natural public land ( source : www.mer.gouv.fr ) .

As early as DATE enthusiasm for seaside holidays brought about an increase in the number of tourists and thus in the number of buildings on the seashore ... . Awareness of the economic importance of the seashore and of the degree to which it is coveted made it necessary to introduce a rule of overriding legal force that would arbitrate between the many uses of coastal areas . It is in this spirit that LAW of DATE ( consolidated on CARDINAL DATE ) was unanimously passed by ORG . LAW provides that coastal areas are “ geographical entities which call for a specific policy of development , protection and enhancement ” . The general principles of that LAW consist in preserving rare and fragile areas , managing spatial planning and tourist development economically and , lastly , making the shore – like the beach DATE more widely accessible to the public and giving priority in coastal areas to marine - related activities .

It is in the planning sphere that the principles established are the best known and have given rise to the most litigation . Planning permission for further development must be granted with regard to continuation of existing constructions or new hamlets . It is forbidden to build roads on the shore and through roads can not be built closer than QUANTITY from the shore . In order to preserve natural sites the LAW imposes a “ no building ” rule within a CARDINAL-metre band DATE outside urban centres – from the shore , and restricts development in areas near the shore . Lastly , sites of outstanding interest or characteristic of the shore must be preserved and only small - scale development can be allowed .

The Act has laid down rules for managing maritime public property which include a mandatory public inquiry prior to any substantive change of use , clarifying the procedures for delimiting the foreshore , prohibiting – other than in exceptional circumstances – interference with the natural state of the seashore and establishing specific rules for collective mooring . Lastly , it has established the principles of unobstructed and free public use of the beaches and facilitated public access to the sea ( see LAW and LAW “ Pedestrians shall have free access to beaches ... . Beaches are fundamentally reserved for the unobstructed and free use of the public . ”

Section CARDINAL of the LAW , now Article L. CARDINAL - CARDINAL of the ORG , has given rise to a reform of the rules governing the occupation of maritime public property . It provides :

“ Decisions regarding the use of maritime public property shall take account of the vocation of the zones in question and those of the neighbouring terrestrial areas , as well as of the requirements of conservation of coastal sites and landscapes and biological resources . Accordingly , they shall be coordinated with , inter alia , decisions concerning neighbouring public land .

Subject to specific provisions regarding national defence and the requirements of maritime safety , any substantive change of use of zones of maritime public property shall first be the subject of a public inquiry ... ”

Section CARDINAL of the LAW , now Article L. CARDINAL - CARDINAL of the ORG , lays down the principle that there shall be no interference with the natural state of the seashore :

“ Subject to sea defence operations being carried out and the construction of structures and installations required for maritime safety , national defence , sea fishing , salt works and marine cultures , the natural state of the seashore , outside port and industrial port areas , may not be damaged , especially by dyke construction , drainage , rock filling or embankment forming , except for structures or installations related to providing a public service or carrying out construction work for which the seaside location is essential for topographical or technical reasons that have been declared of public interest .

However , land draining carried out prior to the present Act shall continue to be governed by the previous legislation . ”

The following is an extract from the section entitled “ Matching facts with the theory ” of a report on the conditions of application of LAW , drawn up by ORG and sent to the Minister for Infrastructure , ORG in DATE :

“ ... there is an acute sense of unfairness when an application for planning permission is turned down in respect of a site where the presence of buildings would appear to suggest that at other times the authorities have been less particular . ...

The right to enjoy “ for life ” but not to transfer a dwelling house built on maritime public property , as recognised in an agreement signed with the ORG , the right granted to a married couple until their death to camp or park their caravan in a zone in which camping was now illegal , together with an agreement expressly stipulating that the right could not be inherited , illustrate the creativity shown by the authorities in this regard in GPE and the GPE . ...

All sorts of liberties are increasingly being taken in various degrees of good faith . ... Should we simply ignore the development of a black market in permits to occupy public property ... Should we not be attempting to establish liability on the part of public officials who in the course of their administrative duties have knowingly contributed to creating or exacerbating an illegal situation ? ... ”

A report entitled “ Assessment of LAW and measures in favour of coastal areas ” , prepared by ORG ( DATE ) , contains a part devoted to opening coastal areas to pedestrians which is worded as follows :

“ The purpose of LAW is to maintain or develop tourism in coastal areas . Sections CARDINAL to CARDINAL of the LAW , in particular , lay down the conditions in which the public may visit natural sites , the seashore and the corresponding facilities . The provision of coastal paths goes some way towards giving effect to these legislative provisions . ... The public can continue to walk along the coast by virtue of an easement over private properties and a right of way over public land that may belong to the ORG ( maritime public property ) , ORG or local and regional authorities ... .

Making a pathway often requires an on - site study of the terrain in order to determine whether the coastal area in question can be opened to pedestrians without harming the fauna , the flora or the stability of the soil . If the land is considered to be accessible without any risk to the environment , regard will have to be had to where the path is routed , particularly across private property , it being observed that the statutory route ( QUANTITY in width running along the boundary of maritime public property ) is not always the most appropriate solution . If the statutory route across private properties has been modified , a public inquiry must be carried out . ... ”

The ORG examined the situation in CARDINAL coastal member GPE . CARDINAL GPE , GPE , GPE and GPE ) do not recognise the existence of maritime public property exclusive of any private ownership rights . In the other GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) , maritime public property belongs either to the ORG or to other public bodies and is inalienable on that basis . In all these GPE maritime public property can nevertheless be designated for private use on the basis of fixed - term concessions . And in all these GPE illegal use exposes the offender to administrative or even criminal penalties . In particular , the illegal construction of immovable property can result in the offender being ordered to demolish the building concerned at his or her own expense and without compensation . This type of measure also exists in GPE , where the private right of ownership of land on the seashore is recognised by law but the land is subject to relatively strict easements which prohibit the construction of new buildings and guarantee public access to the sea .

In GPE , as in GPE , the owners of buildings legally built and acquired before the entry into force of the “ Maritime Property Act ” ( DATE ) in the case of the former and LAW in the case of the latter ( DATE ) , and designed for use as a dwelling , could obtain a concession of these buildings , without any obligation to pay a charge on the sole condition that they apply for the concession within DATE of the entry into force of the Act . In GPE properties built before the LAW came into force without a permit or concession as required by the previous legislation will be demolished if they can not be legalised on public - interest grounds . Any building that was authorised before the LAW came into force but is now illegal will be demolished on the expiry of the concession if it is located on land falling within the category of maritime public property . In GPE , according to the case - law of ORG ( judgment of DATE ) , which refers to the judgment in PERSON and PERSON v GPE ( no . CARDINAL , DATE ) , if the annulment of a property deed in respect of property located inside the delineation of the seashore is compatible with the domestic legislation , the interested party can apply to the courts for compensation for his or her pecuniary loss .

The following relevant texts can be cited : Recommendation No . R ( CARDINAL ) CARDINAL of ORG on a policy for the development of sustainable environment - friendly tourism in coastal areas adopted on DATE , and the appendix thereto ; and the decision of ORG taken at its PERSON meeting ( DATE ) at which ORG take note of LAW on sustainable management of coastal zones ( see LAW and LAW access to beaches and coasts ) ; and LAW and agree to transmit them to their respective Governments .


Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi

The applicant was born in DATE and lives in GPE .

In DATE the police conducted an operation to disband several organised criminal gangs that were acting in and around GPE , stealing luxury cars with a view to selling them in the countries of the former GPE . There were CARDINAL such groups , cooperating closely with each other and closely connected with GPE 's most dangerous armed criminal groups : ORG and ORG .

The applicant was arrested on DATE on suspicion of thefts , robberies , drunk driving and membership of an organised criminal group . He was remanded in custody by the decision of ORG of DATE .

At that time ORG was conducting an investigation in respect of CARDINAL other members of the criminal gangs mentioned above . CARDINAL of them were held in custody . The investigation was complex and time - consuming , given that the criminal gangs collaborated closely with many persons who were to be questioned by the prosecutors , for example , receivers of stolen goods , persons hiding stolen cars or persons tracking cars which were to be stolen , among others .

In addition , the prosecutor opened an investigation in respect of several police officers from GPE and surrounding towns on charges of corruption and helping the criminal groups ' members to evade the law .

On DATE a bill of indictment against the applicant and CARDINAL other co - accused ( members of CARDINAL cooperating criminal gangs ) was lodged with ORG . The evidentiary material was presented in CARDINAL case files . The applicant was charged with membership of a criminal gang , carrying out multiple robberies and thefts , committed with extreme brutality . The criminal gang , of which the applicant was a member , was known for its violence and ruthlessness and for illegal trafficking in firearms .

On DATE ORG held the first hearing . The following hearings were held by ORG on : CARDINAL , DATE , DATE , DATE , QUANTITY DATE , CARDINAL , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE and DATE ; CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE . In total , CARDINAL hearings were held by ORG .

During the trial ORG examined a wide range of evidentiary material , ordered medical expert opinions on the accuseds ' mental health and expert opinions in the field of dactyloscopy , conducted inquiries in the accuseds ' respective neighbourhoods , inspections of the crime scenes and garages where the stolen cars had been hidden and assessments of the accuseds ' assets . The proceedings involved taking evidence from a considerable number of witnesses and victims and from CARDINAL key witness .

NORP The applicant 's pre - trial detention was prolonged several times by ORG . The decisions were issued , inter alia , on DATE , CARDINAL DATE , CARDINAL May , CARDINAL DATE , DATE , DATE , CARDINAL DATE and DATE . In its decisions the court underlined that there was a strong likelihood that the applicant had committed the crimes , confirmed in particular by the testimonies of a key witness and a co - accused , and considered that there was a reasonable risk that the applicant would tamper with the evidence , given that he had had close connections with the other co - accused . There was a serious threat that the applicant would go into hiding after his release from custody , as he had been living in hiding before the investigation and was arrested following the arrest warrant issued by the police . The court also made reference to the activities previously carried out and gave a precise indication of the evidence that still had to be taken . Consequently , it decided that it was indispensable to separate the applicant from the other suspects , the witnesses and the evidence which had not yet been secured . The court also relied on the serious nature of the charges against the applicant and the severity of the penalty he faced . No special circumstances dictated the lifting of the detention .

The applicant unsuccessfully appealed against the above - mentioned decisions .

From DATE to DATE and from DATE to DATE the applicant served a prison sentence imposed on him in separate proceedings .

On DATE ORG imposed a sentence on CARDINAL of the co - accused . The applicant was found guilty of the charges laid against him and sentenced to DATE imprisonment and a fine of MONEY . On DATE the court prolonged the applicant 's detention until DATE .

On DATE and DATE ORG decided on the prolongation of the applicant 's detention . The court found no grounds for quashing or changing the preventive measure and stressed that the further detention of the applicant was “ essential ” .

On DATE the case file , comprising CARDINAL volumes , was transferred to the second - instance court .

The applicant was kept in custody by virtue of decisions issued by ORG on DATE , DATE and DATE .

On DATE the appellate court quashed the judgment and remitted the case for re - examination .

The proceedings are pending before ORG .

On DATE the applicant was detained on remand by ORG on suspicion of robbery and theft . In its decision , upheld on DATE by ORG , the court stated that the suspicion was reasonable and , in view of the fear of collusion , the applicant 's detention was necessary to secure the proper conduct of the investigation . It also attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant .

On DATE a bill of indictment against the applicant and other co - accused ( members of CARDINAL co - operating criminal gangs ) was lodged with ORG . The applicant was accused of acting in an organised criminal gang and committing numerous robberies .

Hearings were held by ORG on average DATE and DATE .

The decisions on prolongation of the applicant 's detention were given by ORG on DATE , DATE , DATE and DATE . The court found that in view of the progress in the proceedings and the fact that several members of the criminal gang had been arrested in the course of the proceedings , the applicant 's release from custody would hinder their effectiveness . In view of the severity of the likely penalty and the fact that the applicant had been living in hiding before the investigation , there was also a serious threat that the applicant would abscond after his release .

On DATE , DATE and DATE ORG prolonged the applicant 's detention upon ORG motion .

The applicant lodged a considerable number of unsuccessful applications for release from detention or for commutation of the preventive measure to a less severe one , on the ground of his poor state of health or other reasons .

He also challenged , likewise unsuccessfully , the decisions of CARDINAL January , DATE and DATE prolonging his detention .

On DATE ORG found the applicant guilty of most of the charges and sentenced him to DATE imprisonment . The applicant appealed .

The proceedings are pending before the second - instance court and the applicant remains detained .


HLASENSKY AND HLASENSKA v. THE CZECH REPUBLIC

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and live in ORG . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE the applicants lodged a constitutional appeal before ORG . The constitutional appeal was signed by the applicants and dated DATE . Attached to it was a power of attorney , dated CARDINAL DATE .

On DATE the ORG informed the applicants and the attorney that the constitutional appeal had to be written by the legal representative . They were invited to rectify the shortcoming by resubmitting the constitutional appeal , written by the attorney , within DATE . ORG noted that in case of failure on the part of the applicants , the constitutional appeal would be rejected under LAW § CARDINAL a ) of LAW .

On DATE the applicants ' attorney sent to ORG a letter in which he stated that he had been representing the applicants from DATE of the proceedings and that , after consulting the applicants , he would not supplement the constitutional appeal in any way .

On DATE ORG rejected the constitutional appeal , holding that the applicants had failed to rectify its shortcomings in due time . It also noted that CARDINAL of the applicants had lodged several constitutional appeals in the past and had previously been invited to rectify his submissions , and hence was well aware of the formal requirements .

Pursuant to LAW ) , natural and legal persons must be represented by an attorney before ORG .

Section CARDINAL ( CARDINAL ) ( a ) provides that the Rapporteur shall , by preliminary ruling , reject the application if the applicant fails to rectify defects in the application in the time - limit set .


Violation of Art. 5-1;Not necessary to examine Art. 18;Just satisfaction rejected;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

ORG The applicant was a NORP citizen . Formerly a Minister , then Deputy Prime Minister and , in DATE , Prime Minister of GPE , he was a member of ORG at the time of the events giving rise to the present case . On DATE he was shot dead outside his home .

ORG On leaving GPE for GPE on DATE , the applicant was informed by the border police at FAC that an order had been made to withdraw his diplomatic passport . As the order was not shown to him , he refused to hand over his passport . Following a similar incident on DATE , the applicant lodged an appeal with ORG , which rejected the appeal on the ground that no administrative decision had been taken which could form the subject of an appeal . Subsequently , the applicant brought proceedings to obtain compensation for non - pecuniary damage sustained as a result of the unlawful order to withdraw his passport ( see paragraph CARDINAL below ) .

ORG On DATE the Prosecutor - General requested ORG to authorise the institution of criminal proceedings against the applicant on suspicion of having contravened Articles CARDINAL and CARDINAL para . CARDINAL of LAW ( see paragraphs DATE below ) . The suspicion related in particular to his participation as a Deputy Prime Minister DATE in a number of decisions granting sums , totalling MONEY ( ORG ) and CARDINAL convertible NORP leva , in assistance and loans to certain developing countries , including GPE , GPE , GPE , GPE , GPE , GPE and GPE . The request stated :

" The decisions ... have dramatically affected the country ’s economic potential , its economic resources and export capacity , and have objectively speaking made it unable to repay its foreign debt . It should be emphasised that , due to decisions of this nature causing prejudice to the country and other illegal measures taken by party and government leaders during this period , our foreign debt rose from ORG in DATE to ORG CARDINAL,CARDINAL,CARDINAL,CARDINAL in DATE ...

The situation described is covered by the definition of the offence of ` taking advantage of one ’s position’ in respect of very large amounts of money , which constitutes a particularly serious matter falling within the provisions in LAW para . CARDINAL of LAW .

The offences mentioned are ` ORG within the meaning of Article CARDINAL para . CARDINAL of the LAW . "

ORG On DATE ORG waived the applicant ’s parliamentary immunity under LAW and authorised criminal proceedings against him and his arrest and detention on remand .

ORG On DATE the public prosecutor , Mr PERSON , of ORG , charged the applicant under Article CARDINAL , in conjunction with Articles CARDINAL , CARDINAL and CARDINAL , of LAW ( see paragraphs CARDINAL below ) with having misappropriated , in concert with the chairperson and the other vice - chairpersons of the then ORG , the funds allocated to certain developing countries as mentioned in paragraph CARDINAL above . In breach of his official duties , he had facilitated the misappropriation in order to obtain an advantage for a third party , thereby causing considerable economic damage . In view of the very large amounts of money involved , the case was a particularly serious one .

The prosecutor in addition ordered the applicant ’s detention on remand , citing as grounds the need to show to the public the danger that the offences in question represented to society , the applicant ’s identity and the need to secure his appearance before the trial court . The decision referred , inter alia , to ORG and CARDINAL para . CARDINAL of the Code of Criminal Procedure ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE the applicant was arrested and remanded in custody at the premises of ORG in GPE .

ORG On DATE the applicant ’s lawyer lodged an appeal with ORG , requesting his release . She maintained that , contrary to Article CARDINAL para . CARDINAL of the Code of Criminal Procedure , the arrest warrant had failed to specify the grounds for his arrest . The fact that he risked a sentence of DATE imprisonment could not in itself justify his detention since , under paragraph CARDINAL of Article CARDINAL , it was also a condition that there should be a risk of his absconding or of his committing a further crime ( see paragraph CARDINAL below ) . In addition , the measures had been taken on the basis of the applicant ’s identity , notably the fact that he was a member of ORG , a consideration which was not covered by any of the grounds that were exhaustively listed in Article CARDINAL para . CARDINAL ( see paragraph CARDINAL below ) .

ORG At a court session held on DATE , at which the public prosecutor but not the applicant or his lawyer was present , ORG dismissed the appeal . Its decision included the following reasoning :

" Under LAW para . CARDINAL of the Code of Criminal Procedure a suspect is to be detained on remand if the offence is punishable by DATE imprisonment or more or by the death penalty . Offences under Article CARDINAL para . CARDINAL , of LAW carry such sentences .

[ The above provision ] lays down CARDINAL cumulative conditions - the misappropriation must have occurred on a large scale and must have been particularly serious .

[ Whether the misappropriation has occurred ] on a particularly large scale depends on the value of the public property involved . The seriousness of the case is determined on the basis of whether the misappropriation was carried out with the complicity of others , the level of the threat to society involved in the [ measures ] and the subject matter ( Article CARDINAL para . CARDINAL , of LAW ) . The argument that the eventuality envisaged in LAW para . CARDINAL ... applies in the instant case is unfounded .

When the accusation was made the applicant was a member of ORG . By virtue of LAW he holds this status until such circumstances occur as may warrant the suspension from his functions as a member of ORG . In his capacity as member of ORG the [ applicant ] represents the people as a whole . It is precisely in this capacity that the [ risk ] mentioned in LAW para . CARDINAL ... will materialise , and the likelihood of this is greater than in the case of an appellant who is not a member of ORG .

Furthermore , the applicant has lodged a judicial appeal against the administrative measure resulting in the withdrawal of his diplomatic passport ... The fact that he has taken such a step gives good grounds for fearing that he will not refrain from committing acts of the type mentioned in LAW para . CARDINAL ...

According to LAW ... , except in cases of serious crimes and where permission has been given by ORG , its members may not be detained and no charges may be brought against them ... ’ . A logical and systematic interpretation of the aforesaid provision suggests that [ what is decisive for ] the measure of restraint , ` detention’ , [ to be applied ] in the context of LAW is whether the act entails a great danger to society and the particular status of the person who has committed it - a member of ORG .

For this reason the legislature envisaged ... detention in [ such ] cases . The prosecutor ’s office has power to impose such a measure . "

ORG On DATE the applicant was hospitalised at ORG , where he received treatment .

ORG On DATE the applicant , relying on a change in circumstances concerning his state of health , filed a request with ORG for his release .

ORG On DATE his lawyer appealed to ORG against ORG implied refusal to grant the request of CARDINAL DATE .

ORG dismissed the appeal on DATE on the grounds that the applicant had already appealed against his detention and that , under the relevant NORP law , he was not entitled to lodge a further appeal .

Subsequently , the applicant ’s lawyer made a request for his release to the public prosecutor .

At a meeting on DATE between the public prosecutor and the applicant and his lawyer at ORG in GPE , the lawyer invited the prosecutor to take a decision on the request for release . The applicant himself maintained that it was unreasonable to base his detention on the fact that he had complained about the withdrawal of his passport . He did not have any other passport . Nor was there any danger of his repeating the offence , as he was no longer in a position to do so .

On DATE the public prosecutor dismissed the applicant ’s request for release . He gave as reasons that ORG had already dealt with it and had been of the view that , notwithstanding the medical reports concerning the applicant , there were no new circumstances warranting his release . His lawyers had been informed of ORG decision of CARDINAL DATE and had been advised that no further appeal was possible .

ORG By letter of CARDINAL DATE the applicant ’s lawyer asked ORG to terminate the investigation . She recalled that it had commenced on DATE and , after the expiry of the statutory period of DATE , had been extended for DATE until DATE . Under Article CARDINAL para . CARDINAL of LAW , a further extension could only be justified in " exceptional " cases , which condition had not been satisfied in the applicant ’s case . Nor had ORG obtained any new evidence during DATE which had elapsed since the investigation had started .

The lawyer also contested the charges against the applicant . The decisions of ORG had been taken collectively in accordance with the LAW and the budget voted by ORG . The decisions in question had been taken simply with a view to implementing policies of the government in power at the time and it was the government , not the applicant as a Deputy Prime Minister , which had administered the relevant funds . In any event , it had not been established that the applicant had committed the offences in issue for his own benefit or for that of a third party .

ORG On DATE the applicant ’s lawyer lodged a request for his release with ORG , maintaining , inter alia , that the further prolongation of his detention breached Article CARDINAL para . CARDINAL of the Convention ( article CARDINAL ) and that , contrary to LAW CARDINAL ( c ) ( article QUANTITY ) , no grounds had been given for his detention . The argument that the applicant had appealed against the order to withdraw his passport was unfounded as he had only exercised his rights under NORP law . The lawyer refused to comment on the allegation that the applicant constituted a particular danger to society on account of his position as member of ORG .

ORG On DATE the Prosecutor - General informed the applicant ’s lawyer orally that his request of CARDINAL DATE had been dismissed in the absence of any new circumstances justifying modification of the decision to detain him on remand .

ORG In a letter of CARDINAL DATE to ORG the applicant , referring to LAW , complained about the prosecutor ’s failure to reply to his requests in writing . He asserted that the criminal proceedings against him had no legal basis and amounted to an overt act of political reprisal .

ORG In a letter of CARDINAL DATE to the public prosecutor , the applicant ’s lawyer queried the outcome of the request of CARDINAL DATE ( see paragraph CARDINAL above ) , stating that the information was important for the application filed with the Commission .

On DATE the public prosecutor replied that his decision of CARDINAL DATE had been transmitted to the applicant ’s lawyer on DATE and that minutes relating to these measures had been prepared in accordance with LAW .

ORG On DATE ORG reversed its decision of DATE authorising the applicant ’s detention on remand . On DATE the prosecutor decided to release the applicant on bail .

ORG On DATE the ORG awarded the applicant compensation for non - pecuniary damage suffered as a result of the attempts made by the border police to withdraw his passport in the absence of a lawful order to this effect . The decision was confirmed by ORG on DATE .

ORG Under LAW , public servants who misappropriate public or private funds which are in their possession in their capacity as public servants or which they have been entrusted with to keep secure or administer are liable to up to CARDINAL years’ imprisonment . If a further offence has been committed in order to facilitate the misappropriation or if the offence has been committed with the complicity of others , CARDINAL years’ imprisonment may be imposed ( LAW .

Where an offence under Articles CARDINAL or CARDINAL involves particularly large amounts of public funds and is serious , Article CARDINAL para . CARDINAL provides for terms of DATE imprisonment .

ORG As appears from a number of rulings by ORG ( D CARDINAL - CARDINAL-II , p. CARDINAL ; D CARDINAL - CARDINAL-I , p. CARDINAL ; D CARDINAL - CARDINAL-II , p. CARDINAL ; D CARDINAL - CARDINAL-I , bull . no . CARDINAL , p. CARDINAL ; PERSON , p. CARDINAL ; D CARDINAL - CARDINAL-II , p. CARDINAL ; and D CARDINAL - CARDINAL-Pl . , p. CARDINAL ) supplied by the applicant ’s lawyer in consultation with the Agent of the Government before the ORG ’s hearing , at the material time a condition for the offence of misappropriation under LAW was that the person concerned had disposed of the means in question as though they were his or her own , in order to obtain an advantage for himself or herself or for a third party .

In a judgment of DATE ( no . CARDINAL ) ORG declared unconstitutional an amendment by ORG to make it an express condition in Article CARDINAL that the person concerned had used the funds to his own advantage or that of a third party . In the opinion of ORG , such a limitation on the scope of the offence of misappropriation would entail too weak a protection of the right to property guaranteed by LAW of DATE . It should be decisive for the offence , not that there had been personal enrichment , but that the person had disposed of the means as though they were his own and had thereby harmed the owner ’s interests .

In connection with the above , ORG stated that the amendment in question had been in line with ORG interpretation of Article CARDINAL .

According to the Government , there was no example at the relevant time of a member of a government having been prosecuted under ORG CARDINAL and CARDINAL of LAW for his or her participation in collective decision - making by the government .

ORG Article CARDINAL para . CARDINAL provides :

" If a public servant , in his administration of assets or of money in his possession or in the execution of work which he has been ordered to do , negligently causes considerable material damage , or the destruction or dispersal of the assets , to the disadvantage of the service concerned or the national economy , he will be punished by a term of imprisonment of not DATE or by forced labour in the public interest . "

According to paragraph CARDINAL , up to CARDINAL years’ imprisonment may be imposed if the offence is committed wilfully .

ORG Article CARDINAL provides :

" ( CARDINAL ) A public servant who does not fulfil his professional obligations or who commits an abuse of power with the aim of obtaining a material advantage for himself or for a third party or of causing damage to others , and if not insignificant material damage could arise , shall be punished by a term of not more than DATE imprisonment ...

( CARDINAL ) If the act results in considerable material damage or has been committed by a person occupying a senior administrative post , the person concerned shall be liable to a term of imprisonment of DATE ...

( CARDINAL ) If such an act is particularly serious the term of imprisonment shall be CARDINAL ... "

ORG Under LAW para . CARDINAL of the Code of Criminal Procedure , an accused may be placed under court supervision in order to ensure that he or she does not abscond or commit a new offence or to prevent collusion . The kind of measure imposed depends on the evidence against the accused , his or her state of health , family situation , profession and any other information concerning his or her character .

ORG Article CARDINAL provides , in so far as relevant :

" ( CARDINAL ) Detention on remand shall be imposed if the charges concern crimes punishable by a term of imprisonment of DATE or more or by capital punishment .

( CARDINAL ) The measure envisaged in the previous paragraph shall not be imposed if there is no danger of the accused evading justice or committing another crime .

( CARDINAL ) The detained person may immediately lodge an appeal with the court against his detention . The ORG shall decide within DATE by means of a decision which is final . "


CASE OF MANOUSSAKIS AND OTHERS v. GREECE

Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicants are all FAC and live in GPE .

ORG On DATE Mr Manoussakis rented under a private agreement a room measuring QUANTITY in a building located in the NORP district of GPE ( GPE ) . The agreement specified that the room would be used " for all kinds of meetings , weddings , etc . of FAC " .

ORG On DATE he laid a complaint against persons unknown at GPE police station because DATE before the windows of the room had been broken by unidentified persons . On DATE he laid a further complaint concerning a similar incident that occurred on DATE .

ORG By an application of CARDINAL DATE lodged with the Minister of ORG and ORG the applicants requested an authorisation to use the room as a place of worship . On DATE they went to the chairman of ORG to ask him to certify their signatures on the application . He refused , however , on the grounds that the applicants did not reside in his district and that they had failed to show him the document bearing their signatures . Following the intervention of the prefect of GPE , the Deputy Minister of the ORG and the Speaker of ORG , the chairman withdrew his opposition and agreed to certify the signatures on a new application lodged on DATE .

ORG On DATE the ORG notified the GPE police authorities that the room was being used as an unauthorised place of worship for FAC and informed them of the applications made by the applicants to the Minister . The church authorities asked the police to carry out an inspection of the LOC , to take punitive measures against those responsible and above all to prohibit any further meetings until the Minister had granted the authorisation in question .

ORG The applicants received CARDINAL letters from ORG and ORG , dated DATE and DATE , DATE , DATE , DATE and DATE , informing them that it was not yet in a position to take a decision because it had not received all the necessary information from the other departments concerned .

ORG On DATE the GPE public prosecutor ’s office instituted criminal proceedings against the applicants under LAW no . CARDINAL ( anagastikos nomos ) , as amended by PERSON no . CARDINAL/CARDINAL ( see paragraph CARDINAL below ) . In particular they were accused of having " established and operated a place of worship for religious meetings and ceremonies of followers of another denomination and , in particular , of the GPE ’s PERSON denomination without authorisation from the recognised ecclesiastical authorities and the Minister of ORG and ORG , such authorisation being required for the construction and operation of a church of any faith " .

ORG On DATE the ORG sitting at first instance and composed of a single judge ( PERSON ) acquitted the applicants on the ground that " in the absence of any acts of proselytism , followers of any faith are free to meet even if they do not have the requisite authorisation " .

ORG The GPE public prosecutor ’s office took the view that ORG had incorrectly assessed the facts and accordingly lodged an appeal against the judgment of DATE .

ORG On DATE the ORG sitting on appeal and composed of CARDINAL judges ( PERSON ) , sentenced each of the accused to CARDINAL months’ imprisonment convertible into a pecuniary penalty of CARDINAL drachmas per day of detention , and fined them MONEY each . It noted as follows :

" ... the accused had converted the room that they had rented into a place of worship , in other words a small temple intended to serve as a place of devotion for a limited circle of persons as opposed to a public building in which everyone without distinction is free to worship God . Thus they established this place on DATE and made it accessible ... to others , in particular , their fellow GPE ’s Witnesses from the region ( limited circle of persons ) , without the authorisation of the recognised ecclesiastical authority and of ORG . At this place they worshipped God by engaging in acts of prayer and devotion ( preaching , reading of the scriptures , praising and prayers ) and did not confine themselves to the mere holding of meetings for followers and the reading of the gospel ... "

ORG On DATE the applicants appealed on points of law . They argued , inter alia , that the provisions of LAW no . CARDINAL , in particular the obligation to seek an authorisation to establish a place of worship , were contrary to LAW and CARDINAL of LAW and to Articles CARDINAL and CARDINAL of LAW ( article CARDINAL , LAW ) .

ORG In a judgment of CARDINAL DATE ORG dismissed their appeal on the following grounds :

" The provisions of LAW no . CARDINAL and of the royal decree of CARDINAL May/CARDINAL DATE implementing that PERSON are contrary neither to LAW nor to LAW , for the right to freedom of worship is not unlimited and may be subject to control . The exercise of this right is subject to certain conditions set down in the LAW and at law : it must be a known religion , not a secret religion ; there must be no prejudice to public order or morals ; neither must there be any acts of proselytism , such acts being expressly prohibited in the second and third sentences of LAW para . CARDINAL of the LAW . These provisions are , moreover , not contrary to LAW ... , Article CARDINAL ( article CARDINAL ) of which guarantees freedom of religion but Article CARDINAL para . CARDINAL ( article LAW ) of which authorises such limitations as are prescribed by law and are necessary in a NORP society in the interests of public safety , for the protection of public order , health or morals , or for the protection of the rights of others .

The said provisions ... , which empower the Minister of ORG and ORG , who has responsibility for all denominations and faiths , to investigate whether the above - mentioned conditions are met , are contrary neither to LAW nor to LAW ) , which do not in any way prohibit investigations of this type ; the purpose of such investigations is moreover merely to ensure that the statutory conditions necessary to grant authorisation are met ; if these conditions are met , the Minister is obliged to grant the requested authorisation . "

ORG According to the dissenting opinion of CARDINAL of its members , ORG ought to have quashed the impugned judgment since the applicants could not be accused of a punishable offence as section CARDINAL of the PERSON was contrary to LAW .

ORG On DATE the GPE police placed seals on the front door of the room rented by the applicants .

ORG The relevant Articles of LAW read as follows :

" CARDINAL . ORG The dominant religion in GPE is that of ORG . ORG , which recognises as its head Our Lord PERSON , is indissolubly united , doctrinally , with FAC of GPE and with any other ORG in communion with it ( omodoxi ) , immutably observing , like the other Churches , the holy apostolic and synodical canons and the holy traditions . It is autocephalous and is administered by ORG , composed of all the bishops in office , and by the standing ORG , which is an emanation of it constituted as laid down in GPE and in accordance with the provisions of LAW of DATE and LAW of DATE .

ORG The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph .

ORG The text of ORG is unalterable . No official translation into any other form of language may be made without the prior consent of the autocephalous ORG and ORG at GPE . "

" CARDINAL . Freedom of conscience in religious matters is inviolable . The enjoyment of personal and political rights shall not depend on an individual ’s religious beliefs .

ORG There shall be freedom to practise any known religion ; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law . The performance of rites of worship must not prejudice public order or public morals . Proselytism is prohibited .

ORG The ministers of all known religions shall be subject to the same supervision by the ORG and to the same obligations to it as those of the dominant religion .

ORG No one may be exempted from discharging his obligations to the ORG or refuse to comply with the law by reason of his religious convictions .

ORG No oath may be required other than under a law which also determines the form of it . "

Section CARDINAL of Law no . DATE ( as amended by PERSON no . CARDINAL/CARDINAL ) provides :

" The construction and operation of temples of any denomination whatsoever shall be subject to authorisation by the recognized ecclesiastical authority and ORG . This authorisation shall be granted on the terms and conditions specified by royal decree to be adopted on a proposal by the Minister of Education and ORG .

As of publication of the royal decree referred to in the preceding paragraph , temples or other places of worship which are set up or operated without complying with the decree ... shall be closed and placed under seal by the police and use thereof shall be prohibited ; persons who have set up or operated such places of worship shall be fined MONEY and sentenced to a non - convertible term of CARDINAL months’ imprisonment .

The term " temple " as referred to in this Law ... shall mean any type of building open to the public for the purpose of divine worship ( parish or otherwise , chapels and altars ) . "

ORG has held that the expression " place of worship " within the meaning of these provisions refers to a " temple of a relatively small size , established in a private building and intended to be used for divine worship by a limited circle of persons as opposed to a building open to the public for the worship of God by everyone without distinction . By operation of a temple or a place of worship under the same provisions is meant the actions by which the temple or place of worship are made accessible to others for the purpose of worshipping God " ( judgment no . DATE , PERSON , vol . DATE ) .

Section CARDINAL ( CARDINAL ) of the royal decree of CARDINAL May/CARDINAL DATE provides that it is for the Minister of ORG and ORG to verify whether there are " essential reasons " warranting the authorisation to build or operate a place of worship . To this end the persons concerned must submit through their priest an application giving their addresses and bearing their signatures certified by the mayor or the chairman of the district council of their place of residence . More specifically , section CARDINAL of the decree provides as follows :

" CARDINAL . ORG In order to obtain an authorisation for the construction or operation of temples not subject to the legislation on temples and priests of parishes belonging to ORG , within the meaning of CARDINAL of the PERSON ( CARDINAL/CARDINAL ) , the following steps must be completed :

( a ) An application shall be submitted by CARDINAL families , from more or less the same neighbourhood and living in an area at a great distance from a temple of the same denomination , it being assumed that the distance makes it difficult for them to observe their religious duties . The requirement of CARDINAL families shall not apply to suburbs or villages .

( b ) The application shall be addressed to the local ecclesiastical authorities and must be signed by the heads of the families , who shall indicate their addresses . The authenticity of their signatures shall be certified by the local police authority , which following an inquiry on the ground shall attest that the conditions referred to in the preceding sub - paragraph are satisfied ...

( c ) The local police authority shall issue a reasoned opinion on the application . It shall then transmit the application , with its opinion , to ORG , which may accept or reject the application according to whether it considers that the construction or use of a new temple is justified or whether the provisions of the present decree have been complied with .

ORG ...

ORG The provisions of paragraph CARDINAL ( a)-(b ) above shall not apply to the issue of an authorisation for the construction or operation of a place of worship . It shall be for the Minister of Education and ORG to determine whether there are essential reasons warranting such authorisation . In this connection the persons concerned shall address to ORG through their priest a signed application , the authenticity of the signatures being certified by the mayor or the chairman of the district council . The application shall also indicate the addresses of the persons concerned ... "

The Government communicated to the ORG a series of judgments by ORG concerning the authorisation to construct or operate temples or places of worship .

It appears from these judgments that ORG has on several occasions quashed decisions of the Minister of Education and ORG refusing such authorisation on the ground that GPE ’s Witnesses in general engaged in proselytism ( judgment no . DATE ) ; or that some of those seeking the authorisation had been prosecuted for proselytism ( judgment no . CARDINAL/CARDINAL ) ; or again because there was an NORP church close to the proposed place of worship ( QUANTITY km in the same town ) ( judgment no . CARDINAL/CARDINAL ) and the limited number of FAC ( CARDINAL) compared to the total population ( CARDINAL ) ( judgment ORG ) .

ORG has also held that the requirement that the signatures be certified by the relevant municipal authority ( royal decree of DATE - see paragraph CARDINAL above ) does not constitute a restriction on the right to freedom of religion guaranteed under LAW and LAW ( judgment no . DATE ) . On the other hand , failure to comply with that requirement justifies a refusal to grant the authorisation ( judgment no . CARDINAL/CARDINAL ) . Finally the silence of the Minister of Education and ORG for DATE following the lodging of an application constitutes failure on the part of the authorities to give a decision as required by law and amounts to an implied rejection , which may be challenged by an application for judicial review ( judgment no . DATE ) .

Authorisation by the local GPE is required only for the construction or operation of temples and not for other places of worship .

ORG In its judgment ( no . CARDINAL/CARDINAL ) of CARDINAL DATE ORG sitting in plenary session stated that LAW did not preclude prior verification by the administrative authorities that the conditions laid down by that Article for the practice of a faith were satisfied . However , that verification is of a purely declaratory nature . The grant of the authorisation may not be withheld where those conditions are satisfied and the authorities have no discretionary power in this respect . The prior authorisation of the local GPE for the construction of a temple ( see paragraph CARDINAL above ) is not an " enforceable administrative decision " , but a " preliminary finding " by a representative of the dominant religion who is familiar with the true position regarding religious practice in the locality . The decision rests with the Minister of Education and ORG who may decide to disregard the GPE ’s assessment if he considers that it is not supported by reasons in conformity with the law .

ORG subsequently confirmed this case - law holding , inter alia , that the " authorisation " of the local GPE was a mere opinion which did not bind the Minister of Education and ORG ( judgment no . CARDINAL/CARDINAL of CARDINAL DATE ) .

Sections DATE , DATE and CARDINAL of Presidential Decree no . CARDINAL/CARDINAL codifying the legislative provisions on ORG of CARDINAL December/CARDINAL DATE govern applications for judicial review of acts or omissions by the administrative authorities :

Acts which may be challenged

" CARDINAL . ORG An application for judicial review alleging ultra vires or unlawful action is available only in respect of enforceable decisions of the administrative authorities and public - law legal persons and against which no appeal lies to another court .

ORG Where the law requires an authority to settle a specific question by issuing an enforceable decision subject to the provisions of paragraph CARDINAL , an application for judicial review is admissible even in respect of the said authority ’s failure to issue such decision . The authority shall be presumed to refuse the measure either when any specific time - limit prescribed by the law expires or after DATE have elapsed from the lodging of the application with the authority , which is required to issue an acknowledgment of receipt ... indicating the date of receipt . Applications for judicial review lodged before the above time - limits shall be inadmissible . An application for judicial review validly lodged against an implied refusal [ on the part of the authorities ] is deemed also to contest any negative decision that may subsequently be taken by the authorities . Such decision may however be challenged separately .

Time - limit

" CARDINAL . ORG Except as otherwise provided , an application forjudicial review must be made within DATE of the dayfollowing the date of notification of the impugned decision orthe date of publication ... , or , otherwise , of the dayfollowing DATE on which the applicant acquired knowledge ofthe decision . In the cases provided for in DATE , CARDINAL of section DATE , time begins to run when the time - limitsprescribed in those provisions have expired .

Consequences of the decision

" CARDINAL . ORG The decision allowing an application for judicial review shall declare the impugned measure void , which entails its general nullity , whether it is a general or individual measure .

ORG The rejection of an application does not preclude the lodging of a new application against the same measure by another person with locus standi .

ORG In the case of failure to take action , where ORG allows the application , it shall refer the case back to the relevant authority so that it can take the action incumbent on it . "