ITEMID: 001-57975
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF GÜL v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8
JUDGES: C. Russo;N. Valticos
TEXT: 6. Mr Gül is a Turkish national, who was born in 1947 and now lives with his wife at Pratteln in the canton of Basle Rural, Switzerland.
7. Until 1983 he lived with his wife and their two sons, Tuncay (born on 12 October 1971) and Ersin (born on 20 January 1983), in the town of Gümüshane in Turkey. On 25 April 1983 he travelled to Switzerland, where he applied for political asylum as a Kurd and former member of the Turkish Social Democratic Party ("the CHP"). He worked in a restaurant there until 1990, when he fell ill. Since then he has been in receipt of a partial-invalidity pension.
8. In 1987 the applicant’s wife, who had remained in Turkey with their two sons, seriously burned herself during a fit brought on by her epilepsy, from which she had suffered since 1982. In December 1987, having found that it was impossible for her to obtain proper treatment in the area where she was then living, she joined her husband in Switzerland, where she was taken into hospital as an emergency case. Two of the fingers of her left hand were amputated.
9. On 19 September 1988 in Switzerland Mrs Gül gave birth to her third child, Nursal, a daughter. As she still suffered from epilepsy, she could not take care of the baby, who was placed in a home in Switzerland, where she has remained ever since. In a written declaration dated 31 March 1989, a Pratteln specialist in internal medicine stated that a return to Turkey would be impossible for Mrs Gül and might even prove fatal to her, given her serious medical condition.
10. On 9 February 1989 the Minister for Refugees rejected Mr Gül’s application for political asylum, on the ground that he had not been able to establish that he personally had been a victim of persecution, as the general situation of the Kurdish population in Turkey was not in itself sufficient to justify granting political asylum. He went on to say that, according to reliable sources, no measures were being taken by the State authorities against former members of the CHP, and ordered the applicant to leave Switzerland by 30 April 1989, failing which he would be deported.
On 10 March 1989 the applicant appealed against the above decision to the Federal Justice and Police Department. He asserted that the collective repression of Kurds in Turkey, of which he himself had been a victim, in itself justified granting political asylum. In addition, at the time when he had fled to Switzerland all political parties had been proscribed and their members - especially the members of left-wing parties like the CHP - were being prosecuted. He could not therefore be required to return to Turkey, and this would be in breach of Article 3 (art. 3) of the Convention.
11. In a letter of 26 June 1989, the Basle Rural Cantonal Aliens Police (Fremdenpolizei) informed the applicant’s lawyer that they supported Mr Gül’s request for a residence permit (Aufenthaltsbewilligung) on humanitarian grounds in respect of himself, his wife and his daughter Nursal.
In view of the length of time Mr Gül had been living in Switzerland and his wife’s precarious state of health, the police considered that the conditions for the issue of such a permit laid down in Article 13 (f) of the Federal Council’s Order Limiting the Number of Aliens ("the OLNA" - see paragraph 21 below) had been satisfied. The final decision to grant a residence permit was given by the Federal Aliens Office on 15 February 1990.
12. As the Federal Justice and Police Department had informed Mr Gül that his application for political asylum had only very limited prospects of success on appeal, he withdrew it. The authorities took formal note of this on 8 November 1989.
13. On 14 May 1990 Mr Gül asked the Basle Rural Cantonal Aliens Police for permission to bring to Switzerland his two sons, Tuncay and Ersin, who had remained in Turkey.
14. In a decision of 19 September 1990 the Aliens Police rejected Mr Gül’s request, on the ground that the conditions for family reunion had not been satisfied (Article 39 of the OLNA - see paragraph 21 below). Firstly, the Gül family’s flat did not conform to the standards laid down and, secondly, the applicant did not have sufficient means to provide for his family. In any event, Tuncay was already eighteen and was therefore ineligible for a residence permit under the rules governing family reunion.
15. On 1 October 1990 the applicant appealed against this decision to the Basle Rural cantonal government (Regierungsrat). He argued that the residence permit issued to him and his wife under Article 13 (f) of the OLNA should have been extended to include his two sons, as his personal circumstances made it an extremely serious case. Since it was impossible to return to Turkey because of his wife’s precarious state of health and the length of time he had lived abroad, the family could be brought back together only in Switzerland. Both Article 8 (art. 8) of the European Convention on Human Rights, guaranteeing the right to respect for family life, and the United Nations Convention on the Rights of the Child gave the two boys the right to join their parents in Switzerland. If the cantonal government were nevertheless to rely on the provisions of Articles 38 et seq. of the OLNA (see paragraph 21 below) on family reunion, the younger son, Ersin, could and should be permitted to exercise that right. There was enough room for him in the family’s flat and Mr Gül’s financial resources were sufficient to provide for his family.
16. On 30 July 1991 the Basle Rural cantonal government dismissed the applicant’s appeal. It pointed out that under section 4 of the Federal Residence and Settlement of Aliens Act ("the RSAA" - see paragraph 20 below) the question whether to grant a residence permit (Aufenthaltsbewilligung) or settlement permit (Niederlassungsbewilligung) was determined by the competent cantonal authorities with unfettered discretion (nach freiem Ermessen), having regard to the relevant statutory provisions and international agreements. In that connection, the authorities had to take account of the country’s moral and economic interests, and of the degree of immigrant penetration (Überfremdung).
The cantonal government then considered whether Mr Gül’s two sons could rely on a right to obtain permission to reside in Switzerland (Anwesenheitsbewilligung) on the basis of the statutory provisions, as the agreement on settlement concluded by Turkey and Switzerland on 13 December 1990 did not confer such a right.
Under section 17 (2) of the RSAA (see paragraph 20 below) a minor did not have such a right unless his parent was in possession of a settlement permit. As Mr and Mrs Gül only had a residence permit, they could not rely on that provision in order to assert a right to family reunion. As for the guarantees set forth in Article 8 (art. 8) of the Convention, only Swiss nationals or persons in possession of a settlement permit could rely on these; Mr and Mrs Gül fell into neither of those categories.
Articles 38 et seq. of the OLNA (see paragraph 21 below) did not confer a right but merely set out the minimum conditions to be satisfied before family reunion could be authorised. The cantonal authorities had the final say on the matter, and in reaching their decision they had unfettered discretion. It being established that the provisions concerned could only apply, if at all, to the minor son, Ersin, the cantonal government listed the minimum conditions which Article 39 para. 1 of the OLNA (see paragraph 21 below) required to be satisfied by a foreigner living in Switzerland before family reunion could be authorised, namely:
(a) his residence and, where relevant, his gainful employment should appear to be sufficiently stable;
(b) he should live with his family and occupy accommodation suitable for that purpose;
(c) he should have sufficient means to support his family;
and
(d) firm arrangements should have been made for the care of any children who still needed their parents’ presence.
The cantonal government did not determine points (a) and (b), but carefully considered points (c) and (d), on which it gave the following decision:
"(c) The calculations made by the Aliens Police and the cantonal government’s legal service, which investigated the case, show that Mr Gül has not satisfied the condition laid down in Article 39 para. 1 (c) of the OLNA. He does not have sufficient means to support his family during their residence in Switzerland. According to the reference calculation, Mr Gül should have a monthly net income of at least 2,710 Swiss francs (CHF) if he is not to fall below the minimum standard of living. That figure is derived from the base rates used by the cantonal social security office for assessing the likelihood of reliance on social security, which are on the whole identical with the base rates adopted by the Swiss Conference on Public Assistance for the calculation of financial support. These base rates are used to establish the monthly living expenses of the foreigner concerned and the members of his family seeking to join him, which have to be covered by his income. This must be sufficient to provide not only the basic necessities of life but also a minimum standard of living. In this way the legitimate interest of the public authorities in preventing the family from becoming a burden on the social security services is also taken into account.
Mr Gül’s net monthly income is CHF 2,060, which falls CHF 650 short of the amount required for the minimum standard of living as calculated by the social security services. The cost of keeping the youngest child, Nursal, in a children’s home has not been taken into account, as it is not known who pays for this. The calculation of income is based on pay-slips from 1989, the latest available. On 23 October 1990 the Liestal Cantonal Hospital sent the Basle Rural Aliens Police a medical certificate stating that Mr Gül was 100% unfit for work and would remain so for a period that it was not possible to determine. On enquiry being made, it was confirmed in a medical certificate dated 19 April 1991 that Mr Gül had suffered from 100% incapacity since April 1990 and would remain unfit for work for the foreseeable future. The Pratteln municipal social security services stated in a letter of 11 June 1991 that Mr Gül would have to have several operations and that for the time being he was waiting to be awarded an invalidity pension. For the first three months of this year alone the social security services have paid the Gül family CHF 8,731.75, and the family will remain dependent on social security payments. In June 1991 Mr Gül stated during a personal interview with the subordinate authority (Vorinstanz) that his family was at that time entirely dependent on social security payments. He therefore has no other source of income. At present the social security services are paying the Gül family the amount needed by a three-person family, but no more. The social security services cannot be expected to provide for children arriving from abroad when it is known in advance that they will have to support them. Nor can Mr Gül support his other children from his own resources. For that reason alone the application for family reunion must be refused.
(d) Article 39 para. 1 (d) also requires firm arrangements to be made for the care of children. But Mrs Gül, for reasons connected with her illness, is not mentally or physically capable of keeping her daughter Nursal with her and looking after her. That is why Nursal has been brought up in the "Auf Berg" children’s home in Seltisberg, where she is to remain. It follows that if Mr and Mrs Gül’s eight-year-old son Ersin joined the family, it is not at all certain that firm arrangements could be made for his care. He too would presumably have to be brought up in a children’s home, which is not the aim of family reunion. A medical certificate dated 18 April 1991 states that Mrs Gül is suffering from a serious illness which makes it necessary for her to have constant medical supervision and treatment. She might even need to go into hospital again. That prospect makes it impossible to consider that firm arrangements have been made for the child’s care as the Order requires."
The cantonal government went on to say that residence permits issued on humanitarian grounds under Article 13 (f) of the OLNA could not in addition confer on the recipients a right to family reunion. In order to ensure equal treatment for all aliens not having the right to reside in Switzerland, such reunion could take place only under Articles 38 et seq. of the OLNA.
Lastly, the cantonal government considered the situation of the younger boy from the standpoint of Article 36 of the OLNA (see paragraph 21 below), announcing its decision in the following terms:
"Ersin Gül is only eight. It must be determined whether his entry into Switzerland would be in accordance with Article 36 of the OLNA, which requires an `important reason’ that is lacking in this case. There is no special reason for treating Ersin Gül differently from other children wishing to rejoin their families in respect of whom the conditions laid down in Articles 38 et seq. of the OLNA have not been satisfied. Another reason for refusing to admit him to Switzerland is the fact that Ersin and Tuncay Gül would be separated. Ersin has lived with Tuncay since birth. On the other hand, he has been separated from his father and mother for eight years and three and a half years respectively. Having regard to the child’s welfare, which plays an important role in family reunion cases, the question arises, at the very least, whether it is reasonable to separate him from his brother and the environment he is used to in order to bring him to live with his mother, who is seriously ill and unable to keep him with her or look after him, and his father, who went away to Switzerland three month’s after Ersin’s birth, which means that he hardly knows him. In view of all the circumstances, and having regard to the child’s welfare, the cantonal government considers that Ersin Gül should not be authorised to join his parents in Switzerland. In any case, there is no important reason within the meaning of Article 36 of the OLNA which requires him to be admitted to Switzerland."
The cantonal government concluded that Mr Gül had not satisfied the conditions laid down for family reunion and that his children could not rely on Article 13 (f) or Article 36 of the OLNA either in order to come to Switzerland to join him.
17. On 2 September 1991 the applicant lodged an administrative-law appeal with the Swiss Federal Court. He repeated his previous arguments (see paragraph 15 above) and added that, because of the "special circumstances", Article 8 (art. 8) of the Convention gave his sons the right to obtain permission to reside in Switzerland. The earlier issue of a residence permit on humanitarian grounds to himself, his wife and his daughter had been based on the finding that a return to Turkey was impossible, as it would put the health of his wife and daughter seriously at risk. Mr Gül argued that the same considerations which had prevailed in the decision to grant that residence permit should prevent any withdrawal thereof, which would be tantamount to subjecting Mrs Gül, whose state of health was still causing concern, to inhuman and degrading treatment contrary to Article 3 (art. 3) of the Convention. The residence permit issued to Mr and Mrs Gül on humanitarian grounds was therefore the equivalent of a settlement permit, and it followed that they had the right to family reunion, which could only take place in Switzerland.
18. In a judgment of 2 July 1993 the Federal Court declared the applicant’s appeal inadmissible. It pointed out that, pursuant to section 100 (b) (3) of the Federal Administration of Justice Act, an administrative-law appeal in an immigration-control case was inadmissible if it concerned the issue or refusal of permits to which federal legislation conferred no entitlement. Like the cantonal government, the Federal Court found that neither section 17 (2) of the RSAA nor Article 8 (art. 8) of the Convention conferred such a right on an alien resident outside Switzerland whose parent living in Switzerland had only a residence permit, as Mr Gül did. In particular, Article 8 (art. 8) of the Convention could be relied on only by a person who had the right of abode in Switzerland either by virtue of his Swiss nationality or by virtue of a settlement permit. The court gave this ruling in the following terms:
"Article 8 (art. 8) of the European Convention on Human Rights guarantees the right to respect for family life. In certain circumstances the right to be issued with a residence permit can be deduced from this (see ATF [Judgments of the Swiss Federal Court] 118 Ib 152 at 4, 157 at c; 116 Ib 355 at 1b; 109 Ib 185 at 2), so that Article 8 (art. 8) may be breached where an alien whose family lives in Switzerland is refused leave to enter the country. According to the Federal Court’s established case-law, however, a breach can occur only where the family members living in Switzerland themselves possess a well-established right of abode (Anwesenheitsrecht). For that purpose, it is in principle necessary to have Swiss nationality or possess a settlement permit (see ATF 116 Ib 355 at 1b; 115 Ib 4 at 1d). A mere residence permit is at any rate not sufficient unless it is based on a firmly established right (see ATF 111 Ib 163/4 at 1a), as the Federal Court has held in many unpublished judgments (most recently in the judgment of 6 April 1993 in the case of K., at 1b) ... That is, moreover, consistent with the new provisions on the legal status of aliens having family members in Switzerland (sections 7 and 17 (2) of the RSAA, as amended on 23 March 1990, which came into force on 1 January 1992). Under the Act the right to family reunion presupposes a firmly established right of abode, as pointed out above (at 1b). Given that the legislature’s intention in adopting the amendment in question was precisely to take account of Article 8 (art. 8) of the European Convention on Human Rights (see Bbl [Federal Gazette] 1987 III, pp. 293 et seq., particularly pp. 321 and 322), there is no reason, when that provision (art. 8) of the Convention is invoked with regard to recognition of legal rights in the matter of residence permits, to go beyond what the Act itself expressly provides (see the Federal Court’s unpublished judgment of 6 April 1993 in the case of K., at 1b)."
The Federal Court also emphasised the differences between settlement permits and residence permits, stating:
"Unlike settlement permits, which are issued for an indefinite period (section 6 (1) of the Federal Residence and Settlement of Aliens Act - hereinafter the RSAA), residence permits are always subject to a time-limit (section 5 (1) of the RSAA). Whatever the reason for granting the first residence permit, an alien must therefore allow for the possibility that his permit will not be renewed. There could be many reasons for this, including, for example, police, economic or demographic considerations. Although the alien’s personal circumstances have to be taken into account in the inquiry into the proportionality of the decision not to renew, that does not mean that the alien is on that account entitled to have his residence permit renewed.
The above statement of the law also applies to residence permits issued on humanitarian grounds. The only effect of a finding that a case is an extremely serious one within the meaning of Article 13 (f) of the Federal Council’s Order Limiting the Number of Aliens of 6 October 1986 (hereinafter the OLNA - SR 823.21) is to exclude the alien concerned from the quotas laid down in that Order; it does not imply the existence of a right to a residence permit. The Aliens Police prefer to remain free to decide when such a permit should be issued (see ATF 119 Ib 35 at 1a). In addition, the possibility cannot be ruled out that the particular circumstances which justified the issue of a residence permit on humanitarian grounds will subsequently cease to exist, or lose their significance to such an extent that not only will there no longer be any reason to exclude the person concerned from the quotas, but even renewal of the residence permit will no longer be justified. Moreover, it is apparent from the rule established in Article 12 para. 2 of the OLNA that the conditions required for a finding that the case is an extremely serious one may subsequently cease to exist (see the unpublished judgment of 3 July 1992 in the case of P., at 6). The question whether the case is of this type is therefore entirely separate from the question whether the person concerned has the right to obtain permission to reside in Switzerland by virtue of Article 8 (art. 8) of the European Convention on Human Rights (see ATF 115 Ib 8).
Furthermore, in the instant case the possibility cannot be entirely ruled out that in the future the medical or other reasons which led the authorities to grant the residence permit will lose their significance, or that new grounds justifying a refusal to renew the permit will become apparent. The appellant can therefore not deduce from the fact that he is authorised to reside in Switzerland any right to the issue of a residence permit for his sons."
The Federal Court went on to say that the question how the OLNA should be applied to the issue of permits was not one it had to examine in connection with the administrative-law appeal, as the cantonal government had already looked into the question whether the Güls’ younger son could be issued with a residence permit under Article 36 of the OLNA.
19. Ersin has lived in Turkey since his birth, at first in Gümüshane until 1993 (with his mother until 1987), and then in Istanbul.
According to the Government, he is at present living, as is his grandfather, with the family of his elder brother Tuncay, and has been visited several times by his father.
The applicant maintained that Ersin frequently moved from one home to another and spent two or three days staying with various Kurdish families who used to live in the village where he was born, including the family of his elder brother. Owing to his grandfather’s limited financial resources and the distance between the homes of some of these families and the school it was not possible for the boy to attend school on a regular basis.
As is evidenced by an article which appeared in the Turkish newspaper Sabah on 25 July 1995, Mr and Mrs Gül visited their son in Turkey in July and August 1995.
20. The Federal Residence and Settlement of Aliens Act provides:
"The authority shall have discretion to decide, having regard to the relevant statutory provisions and treaties with foreign States, whether to grant residence or settlement permits."
"1. When deciding whether to grant a permit the authorities must take account of the country’s moral and economic interests, and of the degree of immigrant penetration.
..."
"1. As a general rule, the authority shall first issue only a residence permit, even if it is foreseen that the alien will establish his permanent residence in Switzerland. In each case the Federal Aliens Office shall fix the date from which permission to settle may be granted.
2. Where that date has already been fixed, or where the alien is in possession of a settlement permit, his spouse shall be entitled to a residence permit for as long as the couple continue to live together. On completion of five years’ uninterrupted lawful residence the spouse shall also become entitled to a settlement permit. Unmarried children under 18 shall have the right to be included in the settlement permit for as long as they continue to live with their parents. These rights shall be extinguished if the beneficiary has engaged in conduct contrary to public policy."
Before 1 January 1992 the second paragraph of this section read:
"Where that date has already been fixed, or where the alien is in possession of a settlement permit, his wife and his children under 18 shall have the right to be included in the permit if they form part of his household."
21. The relevant provisions of the Order Limiting the Number of Aliens are the following:
"The following categories of person shall not be included in the quotas:
...
(f) aliens issued with residence permits in extremely serious personal cases or on general policy grounds.
..."
Before 18 October 1989 the expression "extremely serious personal cases" read: "cases of extreme adversity".
"Residence permits may be issued to other aliens without gainful employment where important reasons so require."
"1. The Cantonal Aliens Police may authorise an alien to bring to Switzerland his spouse and his dependent unmarried children under 18.
..."
"1. An alien may be authorised to bring his family without being required to complete any qualifying period ...
(a) if his residence and, where relevant, his gainful employment appear to be sufficiently stable;
(b) if he lives with his family and occupies accommodation suitable for that purpose;
(c) if he has sufficient means to support his family; and
(d) if firm arrangements have been made for the care of any children who still need their parents’ presence.
2. Accommodation is suitable if it meets the standards applicable to Swiss nationals in the area where the alien wishes to live."
Before 20 October 1993 the words "without being required to complete any qualifying period" were not part of the text.
22. According to the established case-law of the Federal Court, a person is entitled under Article 8 (art. 8) of the Convention to join a member of his family in Switzerland if the latter is a Swiss national or is in possession of a settlement permit (Judgments of the Federal Court (ATF) vol. 116, part Ib, p. 355; vol. 115, part Ib, p. 4; vol. 111, part Ib, pp. 163 et seq.).
23. Replying to the question asked at the hearing by one member of the Court, the Government stated that by virtue of the convention on social security concluded by Switzerland and the Republic of Turkey on 1 May 1969, which came into force on 1 January 1972 with effect from 1 January 1969, invalidity insurance benefits payable in either country are also payable in the other. In the instant case, if Mr Gül returned to Turkey, he would receive CHF 915, made up of his ordinary pension (CHF 436) and half of the supplementary pension paid in respect of his wife (CHF 131), his son Ersin (CHF 174) and his daughter Nursal (CHF 174).
The applicant asserted that only his invalidity pension, not the social security benefits, could be paid to him in Turkey. Moreover, his invalidity pension was currently under review; if his invalidity were to be assessed as less than 50%, his pension could no longer be transferred to Turkey.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-5642
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DÖRING v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Peter Döring] is a German national who was born in 1946 and lives in Magdeburg (Germany). He was represented before the Court by Mrs Kleine-Cosack, of the Freiburg Bar.
summarised as follows.
From 1972 to 1990 the applicant was a judge in the former GDR (German Democratic Republic) and, in particular, President of the Criminal Division of the District Court (Vorsitzender des Strafsenats des Bezirksgerichts) of Magdeburg from 1986 to 1989.
In a decision of 4 April 1990 the Ministry of Justice of the former GDR allowed him to be admitted as a member of the Bar from 1 May 1990 onwards.
In a decision of 20 July 1995 the Land of Saxony-Anhalt’s Ministry of Justice disbarred him under section 1(2) of the 1992 Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge (Gesetz zur Prüfung von Rechtsanwaltszulassungen, Notarbestellungen and Berufungen ehrenamtlicher Richter — “the RNPG” — see “Relevant domestic law” below) on the ground that he had violated the principles of humanity and the rule of law (da er gegen Grundsätze der Menschlichkeit und Rechtsstaatlichkeit verstossen hat).
The Ministry accused him, in particular, of having in fifteen cases sentenced to approximately three years’ imprisonment persons accused of having merely expressed the wish to leave the former GDR to institutions and organisations of the FRG (Federal Republic of Germany), such as the FRG’s Ministry of Inter-German Relations, the Frankfurt International Human Rights Society and a German second channel (ZDF) television programme.
The Ministry also accused him of having imposed a sentence of six years and six months’ imprisonment for aiding illegal border-crossing (Grenzschleusung) and one of two years and ten months for incitement to subversion (staatsfeindliche Hetze).
In a judgment of 9 May 1995 the Magdeburg Regional Court (Landgericht) acquitted the applicant of the charge of administering justice perversely (Rechtsbeugung).
In a decision of 14 March 1996 the Land of Saxony-Anhalt Court’s Special Section for Matters relating to Lawyers (Senat des Anwaltsgerichtshofs) upheld the applicant’s disbarment.
In a decision of 4 February 1997 the Federal Court of Justice’s Special Section for Matters relating to Lawyers (Senat für Anwaltsachen des Bundesgerichtshofs) dismissed an appeal by the applicant.
In the opinion of the Federal Court, there was a serious violation (beachtlicher Verstoss) of section 1(2) of the Act mentioned above where a lawyer, in his previous duties as a judge, had adopted an extreme construction (bei exzessiver Auslegung und Interpretation) of the relevant provisions of the former GDR’s criminal code or the code of criminal procedure to the disadvantage of an accused or had started a prosecution showing contempt for human beings (menschenverachtende Verfolg) even though in the eyes of the law his conduct had not been so culpable as to constitute perverse administration of justice (Rechtsbeugung).
The Federal Court held that in the present case the applicant, while in the high-ranking position of president of a criminal division, had for years voluntarily taken part in decisions, which, at least as a whole (in der Gesamtschau), had shown contempt for human beings and had been contrary to justice. The applicant had applied laws which had been contrary to the rule of law, to the former GDR’s Constitution and to the international conventions to which the former GDR had been a party. In all cases, hearings had been held in camera in a kind of secret trial and heavy prison sentences had been imposed on citizens who merely wished to leave the former GDR, which often meant the destruction of their personal and social lives.
In the opinion of the Federal Court, those criticisms were still valid because the applicant had flagrantly violated human rights by taking part in politically-motivated criminal justice (politische Strafjustiz) for years, thus assisting the apparatus of State repression. Failure to penalise that would have met with the incomprehension, not only of the victims but also of the population in general and would have undermined the confidence of the public, especially people from the former GDR (for whom politically-motivated criminal justice still remained a painful memory), in the integrity of the legal profession. The Federal Court held that even though the applicant had practised the profession of lawyer for six years without fault, that had been too short a period to allow the applicant’s interest in practising his profession to override the public interest in confidence in the integrity of the legal profession.
In a decision of 28 May 1997 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three members, declined to accept the applicant’s constitutional appeal for adjudication.
In the opinion of the Constitutional Court the appeal was not of fundamental constitutional importance, since it had already decided the issue of the constitutionality of section 1(2) of the 1992 Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge. The disbarment of lawyers who, because of their participation in acts manifestly contrary to justice committed under the regime of the German Unified Socialist Party (Beteiligung an eklatanten Unrechtshandlungen des SED-Regimes), were not worthy of confidence and were a burden for the administration of justice, was in accordance with the Basic Law (Grundgesetz).
The Constitutional Court added that both the interpretation of that section by the Federal Court of Justice — which had looked beyond the simple fact of the former judge’s involvement in politically-motivated criminal justice (Befassung mit politischem Strafrecht) in that it had also examined the actual application of the law and had held that for the offence to be made out the judge must have adopted an extreme construction and application of the relevant provisions at the material time, to the detriment of the accused — and its application of the section in the present case had also been in accordance with the Basic Law.
As to the applicant’s submissions that the courts had not sufficiently taken into account the conditions under which the former-GDR’s court system had been functioning and that it had been impossible for him to act differently at the time, the Constitutional Court held that the applicant should have raised and supported those arguments in the ordinary courts, which he had failed to do. In that connection, he should, in particular, have pleaded in the relevant courts the actual circumstances which had led him to take part in politically-motivated trials, and explained whether and under what conditions he could have withdrawn and what would have been the consequences for him had he departed from the habitual practice in criminal cases and had acted in favour of the accused.
B. Relevant domestic law
Article 19 of the German Unification Treaty (Einigungsvertrag) of 31 August 1990 provided that the former GDR’s administrative decisions remained in effect but could be set aside if they were incompatible with the principles of the rule of law (mit rechtstaatlichen Grundsätzen unvereinbar).
German reunification itself took effect on 3 October 1990.
Section 1(2) of the Act of 24 July 1992 on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge provides:
“Permission to become a member of the Bar granted by the Ministry of Justice of the former GDR or by admission to the College before 15 September 1990 shall be struck down where before his admission as a member of the Bar the lawyer concerned behaved in a way that made him unworthy to practise the profession of lawyer, having violated the principles of humanity or the rule of law, particularly as a member of or unofficial collaborator with the State security services.”
(“Vor dem 15. September 1990 durch Aufnahme in das Kollegium oder durch den Minister der Justiz der Deutschen Demokratischen Republik ausgesprochene Zulassungen zur Rechtsanwaltschaft werden mit Wirkung für die Zukunft zurückgenommen, wenn sich der Rechtsanwalt vor seiner Zulassung eines Verhaltens schuldig gemacht hat, das ihn unwürdig erscheinen läßt, den Beruf des Rechtsanwalts auszuüben, weil er gegen Grundsätze der Menschlichkeit oder der Rechtsstaatlichkeit insbesondere im Zusammenhang mit einer Tätigkeit als hauptamtlicher oder inoffizieller Mitarbeiter des Staatssicherheitsdienstes verstoßen hat.”)


ITEMID: 001-93454
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PADALEVICIUS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1943 and lives in the Kaunas region.
5. On an unspecified date in 1991 the former owners of the land belonging to the Noreikiškės settlement, situated on the territory of the Lithuanian Academy of Agriculture (“the LAA”), filed claims for restitution of their ownership rights.
6. On 13 March 1992 the Noreikiškės settlement local council assigned a plot of land for the applicant’s use and for construction of a private house. On 20 July 1992 the applicant paid 2,970 Russian roubles (RUR) for the use of that plot.
7. On 13 October 1992 a meeting of the Kaunas Regional Board took place attended by the applicant, acting on behalf of the LAA, a representative of the pre-nationalisation owners who sought to restore their property rights to the land assigned to the territory of the new LAA settlement, and representatives of various municipal and State institutions. It was decided to organise another meeting to discuss the possibility of restoring property rights to the land in Noreikiškės settlement in kind and to propose to the Government that plots of 0.3 hectares be allocated to the former owners for the construction of private houses.
8. Between 1992 and 1995 the Government enacted several decrees allowing persons in the applicant’s position to acquire ownership of the land they had been using.
9. On 11 April 1995 the applicant and the Kaunas municipality signed a land-purchase agreement which specified that on 20 July 1992 the applicant had paid 29.70 Lithuanian litas (LTL) for the plot of land. On 14 April 1995 the plot of land was registered in the State Land Registry in the applicant’s name and, in accordance with Lithuanian law, the applicant became its owner.
10. On 5 June 1995, civil proceedings were brought by a group of eight private individuals for annulment of the land-purchase agreements, including that of the applicant. The plaintiffs claimed restitution of their property rights to the land in question, which the LAA had allocated for the building of private houses and which had been nationalised by the Soviet occupying power in the 1940s. The dispute involved a total of 129 co-defendants, including the applicant.
11. On 27 June 1995 the Kaunas District Court ordered the seizure of the applicant’s land. The order was later upheld by the Kaunas Regional Court and the Supreme Court, and specified that the applicant could grow only plants with a one-year lifespan on the land at issue. Moreover, the applicant was forbidden from carrying out any construction activities on the land pending the court proceedings.
12. On 28 October 1996 the Kaunas District Court dismissed the action as unsubstantiated.
13. On 5 February 1998 the Kaunas Regional Court quashed the decision, noting that the lower court had failed to properly inform 38 defendants in the case about the forthcoming hearing. The case was returned for fresh examination at first instance.
14. On 26 February 1999 the Kaunas District Court again dismissed the action.
15. On an unspecified date the case was transferred to the Panevėžys Regional Court, which examined it on appeal.
16. On 14 March 2000 the Panevėžys Regional Court stayed the proceedings, deciding to submit a question as to the constitutionality of the Government decrees on the basis of which the land had been sold to the applicant.
17. On 6 March 2002 the Kaunas County Governor’s Office informed the applicant that despite the courts’ ban on pursuing any activities on the plot of land, “at present there are perennial plants and there is also a pond”. The applicant was requested to “bring the illegal actions to an end”. On 12 April 2002 the applicant informed the local authorities that “it was only from your letter that I learned about the seizure of my plot of land. The pond was dug, the plants were planted and other works were done in 1993, 1994 and the first half of 1995”.
18. On 10 May 2002 the Constitutional Court adopted a ruling, finding that the Government decrees in question violated the rights of the former owners of the land, who had the right to restitution of their property. The decrees were declared unconstitutional as contradicting Article 23 of the Constitution and, inter alia, Article 12 § 1 (15) of the Law on the procedure and conditions governing the restoration of rights of ownership to existing real property (Įstatymas dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų) (“the Restitution Law”). The ruling read in part as follows:
“... although the legislature enjoys a certain discretion in establishing the conditions and procedure for the restoration of rights of ownership, in doing so it must take account of the constitutional principle of protection of the right of ownership. This principle also presupposes that, unless it is necessary for the needs of society, land unlawfully nationalised by the occupying government must be returned to its owners in kind under the procedure and conditions established by law...
... given that Government Decree no. 649 of 25 August 1993 and Government Decree no. 294 of 19 April 1994 established that the land allocated to the LAA also included an area designated for building private dwelling houses, and that it was established that the status of the land, subject to being bought out by the State, was granted because that land was on territory allocated to the scientific and educational establishment, and given also that Government Decree no. 350 of 9 March 1995 permitted natural persons to acquire private ownership of the plots of land on the territory attributed to the educational-production base of the LAA, the right of the owners to restore their ownership rights over the said land has been denied”.
19. As a result, on 28 June 2002 the Panevėžys Regional Court reversed the decision of the Kaunas District Court of 26 February 1999. It was noted that the Government decrees on the basis of which the applicant had signed the land-purchase agreement had been declared unconstitutional. Consequently, the administrative acts whereby the land had been sold to the applicant were declared null and void. The court also observed that “the defendants [one of them being the applicant] have for the most part not started the construction works. Not all the defendants have bought out the plots of land which were assigned to them for construction of private houses and not all the [defendants] who signed land-purchase agreements have had them registered”. The court applied Article 1.80 of the Civil Code and ordered restitution, obliging the local authorities to return to the applicant the sum of LTL 29.70 which he had previously paid for the plot of land at issue. As some of the defendants had paid for their plots of land in 1992 with “single-use investment vouchers” (vienkartinėmis išmokomis), the court ordered that those sums be repaid to them.
20. The defendants, including the applicant, lodged an appeal on points of law. They alleged, inter alia, that the Panevėžys Regional Court had examined the case in the absence of their lawyer. The defendants further argued that it would be impossible to execute the appellate court’s decision since it ordered restitution in “single-use investment vouchers”, which no longer had any pecuniary value in Lithuania. Lastly, they contended that the annulment of the land-purchase contracts was contrary to the right to protection of private property and would amount to re-privatisation.
21. On 31 January 2003 the Supreme Court upheld the decision. It stated that the annulment of the impugned acts was necessary to protect the legitimate interests of the pre-nationalisation owners. The court acknowledged that the “single-use investment vouchers” had in the meantime ceased to exist as a means of payment. The Supreme Court noted, however, that the subject matter of the proceedings was the annulment of the land-purchase contracts and that the assessment of possible compensation for the investment vouchers had not been its subject matter. Finally, the court found that on 19 June 2002 the applicant’s lawyer had been duly notified of the appellate court hearing which was to take place on 27 June 2002, and that she had requested that the hearing be postponed, given that she had to attend another court hearing at the same time. The Supreme Court, however, noted that the applicant’s lawyer had failed to provide any proof of that hearing. The court ruled that, taking into account the need to ensure the speediness of the proceedings and the high number of participants in the case, the appellate court had taken a reasonable decision to hear the case in the lawyer’s absence.
22. By a decision of 14 March 2005 the Deputy Governor of Kaunas County restored the former owners’ title to the plot of land on the LAA settlement of which the applicant had acquired ownership under the annulled land-purchase agreement of 11 April 1995.
23. The Constitution of the Republic of Lithuania provides:
“Property shall be inviolable. Rights of ownership shall be protected by law. Property may be expropriated only for the needs of society and in accordance with the procedure established by law, and shall be justly compensated.”
24. The Restitution Law, adopted on 18 June 1991 and amended on numerous occasions, provided that, in restoring property rights, priority was to be given to restitution in kind. The State retained the right to buy out the property from the previous owners if the current social conditions and relations so required (atsižvelgiant į visuomeninius santykius). In particular, Article 12 § 1 (15) of the Law provided that the State could buy out land which had been allocated to scientific or educational institutions for carrying out experiments or for other scientific purposes.
25. On 25 August 1993 the Government adopted decree no. 649 on the status of land used by the Lithuanian Academy of Agriculture and approval of the zoning scheme for its use. In an attempt to create better conditions for the LAA to address scientific, educational and social issues, it was decided that the land, which was used by the LAA and which the LAA’s management had earmarked for the construction of private housing, could be bought out by the State.
26. On 19 April 1994 the Government adopted decree no. 294 and partially amended decree no. 649, specifying that part of the total area of land used by the LAA was to be set aside for building private houses on campus. On 9 March 1995 the Government enacted decree no. 350, which granted natural persons the right to acquire private ownership of the plots of land which were on the territory of the LAA and which had been allocated to them by the Noreikiškės settlement local council prior to 15 March 1992 for the building of dwelling houses.
27. On 27 May 1994 the Constitutional Court examined the issue of compatibility with the Constitution of the domestic laws on the restitution of property rights. In its decision the Constitutional Court held, inter alia, that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated that, if possible, the property rights should be restored in kind. It further ruled that buying out land in the countryside for the purpose of building private housing served no public interest, since after such land was bought out it could be privatised, thereby breaching the previous owners’ right to restitution.
28. The Law on the initial privatisation of State property (Valstybinio turto pirminio privatizavimo įstatymas), adopted on 28 February 1991 and amended on numerous occasions, provided that Lithuanian citizens would be granted “single-use investment vouchers” (vienkartinės išmokos), for amounts ranging from RUR 2,000 to RUR 10,000, for the initial privatisation of State property.
29. On 16 September 1992 the Litas Committee adopted decision no. 2, pursuant to which the rouble as a currency unit was to be withdrawn from monetary transactions with effect from 1 October 1992. A new temporary currency, the talonas, was to be used instead of the rouble, the exchange rate between the two being 1:1.
30. Under the Litas Committee’s decision of 14 June 1993 the talonas ceased to exist and was replaced by a new permanent currency, the Lithuanian litas. The exchange rate was 100 talonai to 1 litas.
31. The Civil Code, in force since 1 July 2001, provides insofar as relevant as follows:
“1. Any transaction that fails to comply with the mandatory statutory provisions shall be null and void.
2. When a transaction is declared null and void, each party shall be required to restore to the other party everything he or she has received by means of that transaction (restitution). Where it is impossible to restore in kind the items received, the parties shall be required to compensate each other in money, unless the law provides for other consequences as a result of the transaction’s being declared void.
...”
“1. In claiming an item as stipulated by Article 4.95 of this Code, the owner shall have the right to demand: from the person who knew or should have known that his possession was illegal (possessor in bad faith), that he or she reimburse or provide compensation for all income he or she received or should have received during the entire period of possession; from an illegal possessor in good faith – all income which such possessor received or should have received since the time when he or she found out or should have found out about the possession being illegal or found out about the commencement of a civil case concerning restitution of the item concerned.
2. An illegal possessor in bad faith shall have the right in his or her turn to claim from the owner necessary expenses related to the item concerned from the time the owner receives income from it.
3. An illegal possessor in good faith shall have the right to claim from the owner compensation for all his expenses incurred in connection with the item concerned that have not been covered by income received from it.
4. An illegal possessor in good faith shall have the right to keep those parts that have been added to improve the item concerned, provided these can be removed without causing damage to it. If the parts added as improvement cannot be removed or if the item was improved in a different manner, the illegal possessor in good faith shall have the right to claim a compensation for the expenses arising from such improvement, in an amount not greater than the increase in value.”
“1. Restitution shall take place where a person is required to return to another person the property he or she has received either unlawfully or by error, or as a result of the transaction whereby the property was received by him or her being annulled ab initio, or as a result of the obligation becoming impossible to perform because of force majeure. ...”
“Restitution shall be made in kind, except in cases where this is impossible or would cause serious inconvenience to the parties. In the latter case, restitution shall be effected by means of an equivalent monetary payment.”
“1. The monetary equivalent shall be estimated on the basis of the prices valid at the time when the debtor received the items he is required to restore.”
“The repayment of expenses for the care and custody of the property subject to restitution which have been incurred by the person who is required to return the property shall be carried out in accordance with the provisions of Book IV of this Code, applicable in respect of possessors in good faith and possessors in bad faith.”
“1. The fruits and revenues accruing from the property subject to restitution shall belong to the person required to make restitution. This person shall bear all the expenses incurred in the production of those benefits and revenues. ...”
32. Article 240 of the Code of Civil Procedure, in force until 1 January 2003, provided that a court could suspend proceedings in a case, at the request of the participants in the proceedings or of its own motion, when it submitted a request to the Constitutional Court to resolve a question as to the constitutionality of the act applicable in that particular case. Under Article 241 of the Code, the proceedings were suspended until the Constitutional Court had given its ruling.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91469
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: HOISCHEN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Ferdinand Hoischen, is a German national who was born in 1949 and lives in Lübeck.
On 26 March 2003 the Dresden District Court issued a warrant of arrest against the applicant, as he was suspected of having obtained with two co-suspected 82 million United States dollars (USD) from more than 6,000 investors. Referring to the evidence obtained during the investigations, the District Court found that the applicant was strongly suspected of 202 counts of fraud and of 50 counts of breach of trust. Furthermore, it found that the applicant had fled to or was hiding in Sweden within the meaning of section 112 § 2 no. 1 of the Code of Civil Procedure (see “Relevant domestic law” below).
On the basis of that warrant, the applicant was arrested in his habitual residence in Sweden on 29 March 2003.
On 12 May 2003 he was extradited to Germany and remanded in custody.
On 13 May 2003 the German authorities presented the arrest warrant of 26 March 2003 to the applicant.
On 5 November 2003 the Dresden District Court issued a new arrest warrant adapted to the recent results of the investigations charging the applicant with, inter alia, 6,554 counts of fraud. That arrest warrant was not executed. It was issued with a view to gaining the approval of the Swedish Government for the applicant’s extradition in respect of further charges against him which had not been the object of the initial warrant of 26 March 2003.
Accordingly, on 11 November 2003 the Saxony Ministry of Justice requested the Swedish Government to approve the applicant’s extradition also concerning the further charges specified in the arrest warrant of 5 November 2003.
On 10 November 2003 the applicant’s case files were sent to the Dresden Court of Appeal with a view to seeking a decision on an extension of the applicant’s detention.
On 26 November 2003 the Dresden Court of Appeal upheld the arrest warrant of 26 March 2003. Based on the investigations and in particular on documentary evidence and on evidence given by the co-suspected and several witnesses, the court held that the applicant was under strong suspicion of having committed fraud in numerous cases. It found that there was now a risk of the applicant’s absconding within the meaning of section 112 § 2 no. 2 of the Code of Civil Procedure (see “Relevant domestic law” below). In particular, he was charged with serious offences and risked not only incurring a lengthy prison sentence but also losing his licence to practise as a lawyer. Furthermore there was a strong incentive to abscond as he had good connections with the United States and Caribbean states and an excellent command of English.
The court also pointed out that the detention had been proportionate, as the instant proceedings, which concerned large-scale fraud, were extraordinarily complex. Given the constant new findings of the investigation authorities it was necessary to investigate a further 6,554 cases of possible fraud. Thus, the investigations required, amongst other elements, the hearing of numerous witnesses, who were in fact heard without any delays. It was also necessary to evaluate the computers, CD-ROMs, discs and numerous other documents seized in Sweden, Switzerland and the Caribbean. Furthermore, the investigation authorities had requested the authorities of several states for legal assistance to obtain further documents. One of those very time-consuming procedures was still pending.
On 2 March 2004 the Dresden Court of Appeal remanded the applicant in custody for a further period, holding that the strong suspicion and a risk that he would abscond persisted. His very good command of English and his close connections with the USA and the Caribbean provided him with the realistic opportunity to move to one of these countries with his family and to evade the proceedings. Furthermore the possible consequences for the exercise of his profession gave a strong incitement to abscond which could not be countered by any alternative measures such as conditions or guarantees.
It also pointed out that the proceedings had been conducted with the required diligence, given that since 26 November 2003 numerous witnesses had had to be identified and heard (also abroad), that the Swedish State had been asked for legal assistance on 11 November 2003, that on 14 November 2003 the investigating authorities had received a report concerning data seized on the Caribbean island of St. Vincent and that the co-suspected had had to be reheard several times.
On 2 April 2004 the applicant lodged a constitutional complaint against the Court of Appeal’s decision with the Saxony Constitutional Court.
On 22 April 2004 the Constitutional Court rejected the applicant’s constitutional complaint as being unfounded. It confirmed the Court of Appeal’s findings that the applicant’s bonds with non-European countries and the legal consequences of his conviction had been sufficient to justify the risk of his absconding. Furthermore the Court of Appeal did not violate the applicant’s right to expeditious proceedings as guaranteed by Article 16 § 1 of the Constitution of the Free State of Saxony (see “Relevant domestic law” below). The Court of Appeal had convincingly held that the investigations had been extraordinarily complex given the existence of 30 files with more than 12,000 pages and 46 files of related files and the necessity to ask several states for legal assistance.
On 25 May 2004 the Saxony Office of Criminal Investigations (Landeskriminalamt) submitted its final report as to the investigations.
On 9 June 2004 the Dresden Court of Appeal upheld the arrest warrant. Referring to the reasons stated in its previous decisions and taking account of the new evidence obtained, it held that the applicant was still strongly suspected of numerous counts of fraud. In view of his personal contacts to the U.S. and the Caribbean and given that it was very likely that he had further funds of several million US dollars, the danger of his absconding persisted.
It also found that the exceptional circumstances in the instant case warranted a further extension of the applicant’s detention given in particular the extraordinary complexity of the investigations, the high number of aggrieved parties and the extensive evidence seized.
It further observed that since 2 March 2004 the investigating authorities had received substantial documentary evidence in English, translations of which had been prepared between March and May 2004. Furthermore the authorities commissioned a further expert report on data received in March 2004, heard numerous further witnesses and reheard both co-suspects. The evidence obtained gave constantly new leads for enquiries. Therefore it was impossible to speed up the taking of evidence. For the same reasons the employment of further staff could not have contributed to a faster termination of the investigations. In these circumstances the authorities had complied with the obligation to conduct the proceedings speedily.
Finally, it pointed out that following the submission of the final report of the Office of Criminal Investigations, the prosecution would now proceed with the elaboration of the indictment concerning the charges covered by the first extradition request as there had still been no reaction from the Swedish Government concerning the request for legal assistance.
On 13 July 2004 the applicant lodged a constitutional complaint with the Saxony Constitutional Court complaining that the continuation of his detention was disproportionate, that the arrest warrant of 26 March 2003 was based on wrong information and that he had been discriminated against on grounds of his domicile in Sweden when compared to the co-defendants.
On 15 July 2004 the Dresden Public Prosecutor’s Office severed the investigations in so far as they were not covered by the arrest warrant of 26 March 2003. In so far as they were covered by the warrant, the prosecution filed a bill of indictment with the Dresden Regional Court. The applicant was charged with 116 counts of fraud. The reasons for the applicant’s indictment were set out on 287 pages.
On 10 August 2004 the Saxony Constitutional Court rejected the applicant’s constitutional complaint. As to the alleged discrimination, it declared the complaint inadmissible as the applicant had failed to substantiate his allegation. As to the lawfulness of the applicant’s detention, the court found that the Court of Appeal had convincingly held already, on 2 March 2004, that the applicant had been strongly suspected of numerous counts of fraud. Furthermore, the latter court comprehensively argued that the special conditions for continued detention as required by section 121 § 1 of the Code of Criminal Procedure (see “Relevant domestic law” below) had been fulfilled. In this connection, it was unobjectionable that the Court of Appeal had referred to the extraordinary complexity of the case, the high number of victims involved and the amount of documents to be examined. Furthermore, after 2 March 2004 a substantial number of new evidence had to be taken. Finally, the Constitutional Court was bound by the findings of the Court of Appeal that it had been impossible to time the taking of evidence in a more concentrated way and that the investigations could not have been finished earlier if more staff members had dealt with the applicant’s case.
On 18 August 2004 the Federal Constitutional Court, without stating further reasons, refused to admit the applicant’s constitutional complaint about the length of his detention.
On 6 September 2004 the Dresden Regional Court replaced the arrest warrant of 26 March 2003 with a new warrant, which took into account the recent results of investigations. Referring to the evidence obtained during the investigation it found that the applicant was strongly suspected of 161 counts of fraud. Under the given circumstances and with regard to the heavy sentence which might be imposed, there was a persistent risk that he would abscond. Furthermore, it decided to open the trial against the applicant and other persons.
On 22 September 2004 the Dresden Court of Appeal again ordered the applicant’s continued detention.
On 23 February 2005 the applicant lodged a request for review of his detention order (Haftprüfung) (see “Relevant domestic law” below), with the Dresden Regional Court.
On 8 March 2005 the Regional Court upheld the arrest warrant, arguing that the strong suspicion and the risk of the applicant’s absconding would persist.
On 30 March 2005 the Dresden Court of Appeal dismissed the applicant’s appeal, and on 11 April 2005 it rejected his objection (Gegenvorstellung).
Between 4 November 2004 and 30 March 2006 the Dresden Regional Court held eighty-nine hearings, during which the applicant, represented by two counsel, lodged numerous requests to obtain further evidence. With fifty-four decisions altogether the Regional Court rejected these requests as being irrelevant or unnecessary.
On 30 March 2006 the Dresden Regional Court convicted the applicant of 119 offences of fraud and sentenced him to seven years and ten months’ imprisonment. The Regional Court set out the reasons for the applicant’s conviction on 211 pages. In establishing the relevant facts, the Regional Court had regard to documentary evidence, to the confessions of the two co-accused, the statements of numerous other witnesses and the applicant’s own statements. The court considered the length of the applicant’s pre-trial detention a mitigating factor.
On 24 May 2007 the Federal Court of Justice dismissed an appeal by the applicant on points of law.
On 30 June 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which he complained about the refusal of his numerous requests to obtain further evidence.
On 14 August 2007 the Federal Constitutional Court refused to admit his constitutional complaint without giving any further reasons.
Article 2 § 2 of the German Basic Law (Grundgesetz) and Article 16 § 1 of the Constitution of the Free State of Saxony provide as follows:
“Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.”
According to the German Federal Constitutional Court’s well-established case-law, pre-trial detention is only permissible under exceptional circumstances, having special regard to the presumption of innocence. The domestic authorities constantly have to weigh the public interest in criminal prosecution against the individual’s right to liberty. The length of the detention has to be proportionate to the likely penalty, if the individual is convicted. Furthermore, the prosecution authorities and criminal courts are required to expedite proceedings by taking all feasible steps swiftly to terminate the investigations and to reach a judicial decision. In case of an avoidable delay in the criminal proceedings, continued pre-trial detention can generally not be justified (see, most recently, the decision of the Second Chamber of the Second Senate dated 11 June 2008, no. 2 BvR 806/08, with further references).
Article 2 § 1 of the German Basic Law (and Article 16 § 1 of the Constitution of the Free State of Saxony) in conjunction with the principle of the rule of law guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Court of Justice (see, decision of 21 July 1994, no. 1 StR 396/94, decision of 26 June 1996, no. 3 StR 199/95) and of the Federal Constitutional Court (see, among others, decision of 24 December 1983, no. 2 BvR 121/83, and decision of 19 April 1993, no. 2 BvR 1487/90), the consequence of the excessive length of criminal proceedings must be either a reduction of the sentence or even the discontinuation of the proceedings. Pursuant to recent decisions of the Federal Constitutional Court, that principle applies to the criminal courts as well as to the Public Prosecutor’s Office (see decision of 25 July 2003, no. 153/03, Reports of Chamber Decisions (BVerfGK) no. 1, pp. 269 et seq.; decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions (BVerfGK) no. 2, pp. 239 et seq.; and decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06).
Sections 112 et seq. of the Code of Criminal Procedure (Strafprozessordnung) concern detention during judicial proceedings. Pursuant to section 112 § 1 of the Code, a defendant may be detained during judicial proceedings if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Grounds for arrest will exist where certain facts warrant the conclusion that the suspect has fled or is hiding (section 112 § 2 no. 1) or that there is a risk of his absconding (section 112 § 2 no. 2).
Section 121 § 1 of the Code provides that as long as a judgment imposing a prison sentence has not been given, detention pending trial for the same offence shall only be executed for a period exceeding six months if the particular difficulty or the unusual extent of the investigations or a different important reason do not yet permit pronouncement of the judgment and justify continued detention.
Under section 117 § 1 of the Code, remand prisoners may ask at any time for judicial review (Haftprüfung) of the decision to issue an arrest warrant or for the warrant to be suspended.
The calculation of the six-month period does not include any period of detention served abroad with a view to the detainee’s extradition. According to section 121 § 3 of the Code the running of the six-month period is suspended as soon as the files are lodged with the Court of Appeal.
According to section 205 of the Code, the trial court may, by order, provisionally terminate the proceedings if the absence of the indicted accused or other personal impediment would prevent the holding of the main hearing for a considerable time. That provision must be seen in connection with section 230 § 1 of the Code according to which no trial shall be held in respect of an absent person.


ITEMID: 001-4950
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TEWS v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1956 and residing in Linz. He is a lawyer by profession.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 April 1991 the Linz District Court (Bezirksgericht) dissolved the applicant’s marriage with C.T. The District Court based its decision on an agreement the applicant and his wife had concluded the same day in court which, inter alia, provided that custody of the two children, E.T. and R.T., be granted to her.
On 17 May 1991 the applicant remarried.
On 11 November 1991 the applicant introduced a request with the Linz District Court for reduction of the maintenance payments for E.T. and R.T. These proceedings are the subject of application No. 25903/94.
On 14 October 1992 the applicant introduced court proceedings with the Linz District Court against his divorced wife for transfer to him of the custody of E.T. and R.T.
On 3 November 1992 the District Court heard C.T.
On 10 November 1992 C.T. requested the District Court to hear three witnesses. On 12 and 25 November the applicant requested the District Court to hear altogether nine witnesses and to obtain the opinion of a medical expert.
On 27 November 1992 the District Court appointed an expert child psychologist.
On 9 January 1993 Judge A.E. who had been dealing with the applicant’s case was replaced by Judge H.K.
On 10 January 1993 the applicant requested the District Court to transfer custody provisionally to him and to hear further three witnesses.
On 22 January 1993 the expert submitted his report to the District Court. On 2 February 1993 the expert’s report was transmitted to the parties. On 15 February 1993 the applicant requested the District Court to order the expert to amend his report. He also requested that a hearing be held in order to discuss the report. On 24 and 25 February 1993 C.T. commented on the expert’s report. On 15 March 1993 the applicant made further submissions. He also requested that he and one more witness be heard.
On 6 July 1993 the Braunau District Court heard one witness on letters rogatory.
On 21 July 1993 a hearing took place before the Linz District Court. The case had meanwhile been assigned to Judge K.L. In the course of the hearing the District Court heard three witnesses. On 29 July 1993 the applicant requested the District Court to hear a further seven witnesses. He also withdrew a previous request for the hearing of one witness.
On 11 and 17 August 1993 hearings took place before the District Court in which the court heard the applicant and six witnesses. On 27 August and 1 September 1993 the applicant requested the District Court to hear a further fourteen witnesses and to instruct the expert to amend his report of 22 January 1993.
On 28 September 1993 and 11 October 1993 the parties made further submissions to the District Court.
On 13 October 1993 the District Court summoned the parties to a hearing scheduled for 29 October 1993. This hearing was postponed to 3 November 1993, on the request of C.T, when the District Court heard three witnesses and distributed an amended expert report.
On 21 December and 29 December 1993 the District Court heard two witnesses in the absence of the parties. On 22 February 1994 the applicant requested the District Court to hear a further seven witnesses.
On 11 April 1994 the applicant filed a request with the Regional Court (Landesgericht) to set the District Court a time limit for holding a hearing. He submitted that since 3 November 1993 no hearing had taken place, and that the transcript of this court hearing had not yet been transmitted to the parties.
On 27 April 1994 a hearing took place before the District Court, which heard C.T. and decided that the appointed expert should, after an examination of the parties and the children, prepare a new report. This report was submitted on 13 May 1994.
On 6, 7, 13, 14, 18, and 21 July 1994 the District Court heard eleven witnesses in the absence of the parties. On 12 September 1994 the applicant made further submissions to the District Court. On 15 September 1994 the District Court heard one witness, already heard on 7 July 1994, in the absence of the parties.
On 20 September 1994 the applicant requested the District Court to grant the transmission to the parties of the material upon which the expert had based his report of 13 May 1994.
On 23 December 1994 the District Court heard four witnesses, already heard on 7, 13 and 21 July 1994, in the absence of the parties.
On 28 December 1994 a hearing took place before the District Court in which the expert’s report of 13 May 1994 was discussed. The applicant requested amendments to the report and the hearing of further witnesses.
On 31 December 1994 the Judge K.L. left the Linz District Court. On 8 February 1995 the applicant requested the District Court to resume the taking of evidence because of the change in judge.
On 14 February 1995 the President of the District Court assigned the applicant’s case to Judge A.E. (who had previously dealt with the case in 1992).
On 10 April 1995 the District Court heard C.T., E.T. and R.T. and C.T.’s companion in the absence of the applicant. On 11 April 1995 the applicant requested the District Court to hear two further witnesses. On 13 April and 5 May 1995 the District Court heard the applicant and his second wife in the absence of C.T. On 24 May 1995 the District Court heard C.T. in the absence of the applicant. On 3 July 1995 the applicant requested the District Court to re-hear in his presence all previous witnesses.
On 12 July 1995 Judge A.E. declared that she felt bias against the applicant.
On 11 September 1995 the applicant filed an application for a time-limit to be set for a decision on this declaration. On 19 September 1995 the President himself requested that he be withdrawn from the case for bias. Both requests were dismissed. Judge A.E.’s appeal of 21 November 1995 was rejected on 7 December 1995.
Meanwhile, on 11 October 1995 the applicant had filed a motion challenging the probable substitute Judge G. for bias. And on 10 November 1995, the applicant had filed a motion challenging Judge A.E. for bias. On 19 January 1996 he filed an application for a time-limit to be set for the delivery of a decision on his latter request.
His applications were dismissed on 6 November 1995 and 17 January 1996, respectively. On 22 March 1996 the Linz Regional Court (Landesgericht), following the applicant’s appeal, withdrew Judge A.E. from the case.
On 11 April 1996 Judge K.S. was appointed to deal with the case but was also challenged for bias by the applicant on 17 April 1996. On 29 April 1996 Judge R.K. was appointed to deal with the case.
On 23 July 1996 the court heard C.T. and C.T.’s companion. On 29 August 1996 the applicant made further submissions. On 6 November 1996 the court heard the applicant and his second wife. On 12 November 1996 an expert was appointed. On 18 November 1996 the court heard C.T. and her father. On 26 November 1996 another expert was appointed.
On 9 December 1996 the applicant’s children were granted legal aid. The applicant appealed against this decision on 18 December 1996.
On 13 March 1997 the expert submitted his report to the court. On 18 March 1997 the applicant requested the court to hold a hearing in which the expert opinion be discussed in the presence of the expert.
On 21 March 1997 the hearing was scheduled for 17 April 1997. Following the applicant’s request for an adjournment, the hearing was postponed until 20 May 1997. Granting the defendants’ motion for an adjournment, the court further postponed the hearing until 26 May 1997. Following another request for an adjournment by the applicant, the hearing was eventually held on 9 June 1997.
On 4 September 1997 the Linz District Court dismissed the applicant’s request for the transfer of custody and withdrew his right of access. Having regard to the submissions of the parties, the evidence of more than 30 witnesses, several expert opinions, documentary evidence and the case files of more than 10 related cases, the District Court found that the children were well cared for by their mother and that continuity in exercising custody was important for the children’s well-being. Furthermore, the children’s feelings towards their father were negative or at best ambivalent. Therefore the court found no reason to transfer their custody from their mother to the applicant. As to the withdrawal of the right of access, the court noted that the right of access like the right of custody
On 15 September 1997 the applicant lodged an appeal, which was dismissed on 27 November 1997 by the Linz Regional Court for essentially the same reasons as those given by the District Court.
On 2 January 1998 the applicant lodged a further appeal, which was dismissed on 24 February 1998 by the Supreme Court, whose decision was served on 6 March 1998.


ITEMID: 001-58100
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF R.M.D. v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 6. Mr R.M.D., a Swiss national born in 1965, currently lives at Benglen in the Canton of Zürich, Switzerland.
7. On 13 January 1992, at the request of the Willisau district authority (Amtsstatthalteramt) in the Canton of Lucerne, the Zürich cantonal police arrested the applicant on a warrant issued by the district prosecutor’s office (Bezirksanwaltschaft) of Uster (Canton of Zürich) and held him in custody at Uster on suspicion of having committed several thefts and other offences in the cantons of Zürich, Lucerne, Berne and Aargau.
8. On 15 January 1992 his counsel applied to the Uster district prosecutor’s office for the applicant’s immediate release. In an order issued on the same day the district prosecutor’s office refused the application and sent it for review by the President of the Uster District Court (Bezirksgericht).
On 17 January the investigating judge (Haftrichter) at that court declared that the application had become devoid of purpose as Mr R.M.D. had that day been transferred to the Canton of Lucerne and that there was accordingly no need to rule on the merits.
9. On 17 January 1992 the applicant was indeed transferred to Willisau. On the same day, the Willisau district authority ordered that the applicant be detained pending trial.
10. On 20 January 1992 the applicant’s counsel applied by telephone to the Willisau Prefect (Amtsstatthalter) to be appointed as the applicant’s lawyer and to be allowed to visit the applicant on 21 January. The Prefect replied that on 21 January Mr R.M.D. was to be transferred to Aarwangen in the Canton of Berne, at the request of the investigating judge in that canton.
11. On 21 January 1992 the applicant was transferred to Aarwangen to be interviewed by the investigating judge. His counsel was informed of this in writing by the Willisau Prefect on the same day.
12. The applicant’s counsel sought to challenge the decision to keep his client in detention at Aarwangen. However, the Aarwangen investigating judge informed him by telephone that he himself had not made any order for Mr R.M.D.’s continued detention pending trial as the order issued by the Willisau district authority on 17 January 1992 (see paragraph 9 above) was still valid.
13. On 24 January 1992 the applicant was transferred to the town of Glarus, in order to be interviewed by an investigating judge in connection with a burglary committed in the canton of Glarus. On the same day, the investigating judge ordered that the applicant remain in detention pending trial.
14. On 3 February 1992 the applicant was transferred to the town of St Gall.
15. On 21 February 1992 Mr R.M.D. was transferred to the town of Schwyz.
16. On the same day his counsel applied to the investigating judge in the Canton of Schwyz for his release, but the application was refused on 24 February.
17. On 25 February 1992 the applicant was transferred back to Uster.
18. On 26 February 1992 the Uster district prosecutor’s office ordered that he remain in detention.
19. On the same day, the applicant’s counsel applied to the Uster District Court for his release. That application was refused on 28 February.
20. On 3 March 1992 Mr R.M.D. was transferred to the town of Aarau.
21. On 4 March 1992 the Aarau prosecutor’s office ordered that he remain in detention.
22. On 13 March 1992 the applicant was once again transferred to Uster.
23. His counsel at once made a further application for his release, and he was released that same day.
24. On 23 January 1992 Mr R.M.D.’s counsel appealed to the Lucerne Court of Appeal (Obergericht) against the detention order issued on 17 January (see paragraph 9 above) and applied for his client’s immediate release.
25. On 27 January 1992 the Lucerne Court of Appeal struck out the appeal on the ground that it had become devoid of purpose because, as the applicant had been transferred on 21 January to Aarwangen and on 24 January to Glarus, the detention order made on 17 January had lapsed (dahingefallen).
26. On 31 January 1992 Mr R.M.D.’s counsel lodged a public-law appeal with the Swiss Federal Court against the judgment of the Lucerne Court of Appeal.
He asked the Federal Court to quash the judgment of the Court of Appeal and to direct that court to rule on the merits and order his client’s immediate release. In his submission, the Court of Appeal’s refusal to consider the merits of the case had infringed the provisions of the Canton of Lucerne Code of Criminal Procedure, the Swiss Constitution and the Convention guaranteeing the applicant’s right to be given a fair trial, to have the lawfulness of his detention reviewed by a court and to be assisted by a lawyer.
27. On 12 February 1992 the Federal Court dismissed the applicant’s public-law appeal.
It said, firstly, that the fact that the Court of Appeal had not considered the merits of the case had not entailed an infringement of the provisions of the Canton of Lucerne Code of Criminal Procedure:
“The view can reasonably be maintained that the Court of Appeal no longer needs to consider the merits of an appeal against a detention order if the detention in the Canton of Lucerne ends during the appeal proceedings, either because the accused has been released or because he is detained in another canton and the detention in the Canton of Lucerne accordingly lapses. The Federal Court has proceeded in a similar manner: leaving aside exceptional cases, it will regard an appeal against detention as having become devoid of purpose and strike it out of its list if the applicant has been released during the Federal Court proceedings ... The justification it gives for this case-law is that in such a case there is no longer a live practical interest in securing a decision on the appeal against detention, even in respect of any claims for compensation and satisfaction ... These considerations are applicable also in relation to cantonal appeal proceedings. The applicant can still maintain in any subsequent compensation proceedings that he was unlawfully arrested in the Canton of Lucerne.”
With regard to the procedure for “amalgamation” (Sammelverfahren) of the judicial investigations in respect of Mr R.M.D. that had been launched in various cantons, the Federal Court held that, in order to avoid any uncertainty about who had jurisdiction to order a person’s detention at the beginning of an investigation, it was important to establish clearly whether and when detention in a given canton came to an end so as to enable the person detained to apply to the relevant cantonal court. For that reason it would have been preferable for the Willisau Prefect to have indicated in writing that the applicant’s detention in the Canton of Lucerne had come to an end and that Mr R.M.D. was thereafter subject to the jurisdiction of the authorities in the Canton of Glarus. However, that did not alter the fact that the Lucerne Court of Appeal had not in its judgment infringed either the provisions of the Constitution relating to personal freedom or Article 5 § 4 of the Convention, seeing that when the applicant had lodged his appeal he was no longer in detention in the Canton of Lucerne.
Lastly, the Federal Court declared the applicant’s complaint under Article 6 § 3 (c) of the Convention inadmissible because the question whether a lawyer had officially been assigned to represent him had not been raised in the Court of Appeal.
28. The first and second sub-paragraphs of Article 64 bis of the Federal Constitution of the Swiss Confederation provide:
“The Confederation shall have the right to legislate on criminal law.
The organisation of the judiciary, court procedure and the administration of justice shall be matters for the cantons ...”

29. Each canton consequently applies its own code of criminal procedure.
30. The relevant provisions of the Swiss Criminal Code read as follows:
“1. Where an accused is prosecuted for several offences committed in different places, the authority of the place where the offence carrying the heaviest penalty has been committed shall also have jurisdiction to prosecute and try the other offences.
If the different offences carry the same penalty, jurisdiction shall vest in the authority of the place where the first investigation was begun.
2. Where an accused, contrary to the rules governing multiple offences (Article 68), has been sentenced by several courts to several terms of imprisonment, the court which has sentenced him to the heaviest penalty shall, on an application by the convicted person, fix a consolidated sentence.”
“If there is a dispute over jurisdiction between the authorities of several cantons, the Federal Court shall determine which canton has the right and obligation to prosecute and try the accused.”
31. The relevant provisions of the Canton of Lucerne Code of Criminal Procedure (Luzerner Strafprozeßordnung) read as follows:
“1. ...
2. Where an order has been issued by the Prefect, the prosecutor or a lower court or its president for the detention of an accused pending trial, the accused may appeal against the order to the Court of Appeal. He must be informed of this right.
3. The Court of Appeal shall rule on the appeal within three days.”
“1. An order for detention pending trial shall lapse after fifteen days. If the reason for keeping the accused in detention continues to apply, the authority dealing with the case must order that he remain in detention. Such detention may not exceed thirty days ...
2. A person detained may at any time apply to the authority dealing with his case for release. The authority must rule on the application within three days.
3. If the Prefect, the prosecutor or a lower court or its president orders that the accused remain in detention or refuses an application for his release, the accused may appeal to the Court of Appeal, which shall rule on the appeal within seven days.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-67643
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: WARD v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Martin Ward, is an Irish national born in 1941 and living in London. He is represented by Mr C. Johnson, a solicitor practising in London.
The applicant is a traveller who, since 1972, has lived with his family in a caravan on Westway Travellers' Site. This site was established as an official local authority site in 1975 under the duty to provide gypsy sites contained in the Caravan Sites Act 1968. The site is now leased by the Royal Borough of Kensington and Chelsea and managed by the London Borough of Hammersmith and Fulham. It is located beneath two flyovers that make up part of the motorway bridge known as the Westway leading from Marylebone Road in London. A railway line also passes nearby. Plots 1 and 20 were directly under the flyover, the carriageways to the east and west were separated from the site by a concrete barrier and vehicles passed within several metres of residential caravans.
Virtually since the opening of the site, the applicant has been campaigning for its relocation because of the pollution and noise, coming from the adjacent highways.
In November 1992 two independent Environmental Health Officers inspected the site and concluded:
"The present conditions are unsatisfactory, and are prejudicial to health within the meaning of s. 79 of the Environmental Protection Act 1990.
Environmental issues, such as rat infestations, lead levels in dust and noise levels, smells and nuisance from adjoining premises are largely beyond the control of the managing authority. In our opinion the site is not suitable for residential occupation. The original decision to locate the site in such a position fails any commonsense assessment of the suitability of the environment."
They noted that while a number of items could be remedied by works, for example, site drainage, other problems, such as, nitrous oxide poisoning and noise levels resulted from the site's location and could not be remedied.
Following the coming into force of the Human Rights Act 1998, the applicant instructed his solicitors to obtain an updated environmental report from the two officers who produced the 1992 report. This was finalised in February 2002 and confirmed the earlier conclusion that it was not a suitable location for a gypsy site. The two experts noted that lead levels had dropped since 1992 due to a ban on leaded petrol and this was no longer a ground of concern. It found the residents at the site were being exposed to nitrogen dioxide levels above the air quality objective of 21 ppb (a mean concentration in 1992 of 24.2 and in 2001 of 25.6). The report noted that air pollution in the United Kingdom was unlikely to cause any serious health effects in the population as a whole but that young children, the elderly or those suffering from respiratory problems might be more sensitive to air pollution. No formal measurement of noise levels was made but it was noted that road traffic noise was intrusive and almost continuous during both their visits. Given the location between major roads and adjacent to a railway they recommended formal monitoring of noise levels be undertaken.
The applicant presented the report to the Royal Borough and renewed requests for relocation of the site, invoking arguments under the Convention.
By letter of 23 August 2002, the Royal Borough responded to the applicant's complaints stating that the alleged treatment failed to satisfy the degree of severity for a breach of Article 3 and that no claim arose under Article 8 as it would be akin to interpreting the provision as requiring a right to be given a home. It denied that it was under any duty to provide a new site.
The Royal Borough obtained that year Government approval of a major grant for 75% of the total expenditure for refurbishment of the site then estimated at GBP 700,000.
The applicant commenced judicial review proceedings in December 2002.
On 12 May 2003, the High Court judge refused the application on the ground of delay.
Following a hearing on 30 July 2003, the Court of Appeal dismissed his appeal. Lord Justice Carnwath noted the delay in bringing the proceedings:
“In this case it seems to me that the important issue is the delay in bringing the proceedings. From October 2000 the rights under the Human Rights Act 1998 were established. Mr Ward was being advised by his present solicitors ... In November 2000 he was also being advised by [counsel] who appeared before us. There was no doubt as to the nature of his rights. The only excuse put forward for the delay until the end of 2002 was the time taken to get this report. However the report itself, although detailed, is reiterating matters which [the applicant] had been asserting for many years. The council has had its own reports in 2000 which showed as a matter of principle that there were major problems with the site.
It seems to me that during this time the council was, to [the applicant's] knowledge presumably, putting forward major proposals for refurbishment with the support of the majority of the residents. It was crucial that, if there was some legal error in the way the council approached it, it should be established as soon as possible. In my view the judge was right to refuse permission on the ground of delay. I see no arguable basis for appeal.”
Concerning the substantive issues, he held:
“.. The problem in this case is that it is accepted that, as a result of changes in the law since the 1968 Act, the council is under no duty to provide [the applicant] with a site here or anywhere else. In those circumstances, it seems difficult to see that he can argue for a right to be relocated to another and better site. If the argument is right, it is difficult to see what distinction there would be between [the applicant] and any other inhabitant of a caravan or a house who is concerned about pollution levels in his home.
In my view, there is nothing in European law or, more particularly the cases we have been shown, which provides any support for such a claim. Under English law, [the applicant] has potential remedies under the Environmental Health Act which do not seem to have been activated. As I understand from the evidence, the council is taking active measures to improve the site.
The more general problems about which [the applicant] complains are the pollution levels, nitrogen dioxide and noise. Those are problems which, unhappily, are shared by a number of urban sites. The council's Environmental Health Officer has acknowledged the problems but considers they do not cause unacceptable conditions ...”