ITEMID: 001-58099
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF EL BOUJAÏDI v. FRANCE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: C. Russo;John Freeland
TEXT: 7. Mr El Boujaïdi was born in Morocco in 1967 and is a Moroccan national. In 1974 he went with his mother, his three sisters and his brother to join his father in France. He has been living in Morocco since enforcement on 26 August 1993 of an order for his permanent exclusion from French territory.
8. The applicant went to school in France, where he also worked for several years.
9. In October 1986 a network of traffickers in heroin imported from the Netherlands was discovered in the Saint-Etienne area (Loire). Eight people, including the applicant, were committed for trial at Saint-Etienne Criminal Court charged with consumption of and trafficking in prohibited drugs.
10. On 24 March 1988 the Saint-Etienne Criminal Court sentenced Mr El Boujaïdi to three years’ imprisonment, to run concurrently with another sentence of thirty months’ imprisonment imposed by the Annecy Criminal Court on 25 September 1987 for dealing in heroin, and ordered him to pay customs fines. Applying Article L. 630-1 of the Public Health Code, it further imposed permanent exclusion orders on Mr El Boujaïdi and three of his co-defendants and a three-year exclusion order on a fourth.
11. On appeal by the prosecution, the Lyons Court of Appeal, in a judgment of 12 January 1989, increased the applicant’s sentence to six years’ imprisonment, with ineligibility for parole during the first two-thirds thereof, and confirmed the permanent exclusion order. The reasons for the judgment were set out as follows:
“In April 1987, in the course of an inquiry aimed at breaking up a heroin-trafficking network operating in Saint-Etienne, the police arrested [the applicant], who had been named as a supplier by various users.
During questioning by the police and the investigating judge El Boujaïdi admitted that he had been using heroin for several months and that he injected himself with up to 1.5 grams per day. According to his statements, he obtained his supplies from [K., A. and I.], who obtained their supplies in Holland.
Again according to his own statements, El Boujaïdi had been peddling heroin since November 1986 to finance his own consumption. He even stated at one interview that each time he bought five grams he sold on three.
The various users named in the charge as buyers from El Boujaïdi confirmed during the course of the inquiry that they had obtained varying quantities of heroin from him throughout the relevant period, namely from September 1986 to April 1987.
According to the statements made by a number of these buyers, El Boujaïdi was known to drug addicts in Saint-Etienne as a supplier and users could meet him in a bar in Place Chavanelle, where the transactions took place.
El Boujaïdi was found guilty of selling heroin to [B.] in a judgment of Annecy [Criminal] Court of 25 September 1987, which has become final. There is therefore no need to rule on that offence. As regards the remaining charges, and in view of the extreme seriousness of the accused’s conduct, the Court upholds the guilty verdict referred from the court below and sentences El Boujaïdi to six years’ imprisonment, to run concurrently with the thirty-month sentence passed on 25 September 1987 by Annecy Criminal Court ...
The Court orders [the applicant’s] permanent exclusion from French territory.
...”
12. On 25 March 1991, pleading his family ties in France, Mr El Boujaïdi lodged a first application to have the order permanently excluding him from French territory rescinded.
In a judgment of 14 May 1991 the Lyons Court of Appeal declared the application inadmissible on the ground that under Article L. 630-1 of the Public Health Code an alien permanently excluded from French territory could not apply for the relevant order to be rescinded.
13. Following an attempted robbery, the applicant – who had been released on 19 June 1991 – was arrested and, on 6 December 1992, detained under a committal warrant. For this offence and the fact that he had stayed in France in spite of the permanent exclusion order imposed on him, on 11 January 1993 the Saint-Etienne Criminal Court sentenced him to one year’s imprisonment.
14. On 25 May 1992 Mr El Boujaïdi again applied to have the exclusion order rescinded. He submitted that the length of time he had been living in France brought him into a category of convicted aliens on whom, under Article L. 630-1 of the Public Health Code, in its new version as amended by the Law of 31 December 1991, an exclusion order could not be imposed. He also argued that on account of his family ties in France the exclusion order was in breach of Article 8 of the Convention.
15. The Lyons Court of Appeal refused this application on 26 November 1992 in a judgment containing the following reasons:
“The applicant has submitted not only that the order permanently excluding him from French territory should be rescinded in the light of Article 8 of the ... Convention ... but also that, as a matter of fact, he has lived in France since 1974 and the whole of his family lives here too.
…
While Mr El Boujaïdi’s application has become admissible since the repeal by the Law of 31 December 1991 ... of the last paragraph of Article L. 630-1 of the Public Health Code, the applicant cannot rely on the substantive provisions of that legislation, which are not retrospectively applicable to convictions that became final, as in this case, before its entry into force.
His application must accordingly be dealt with on its own merits, on the basis of Article 55-1 of the Criminal Code.
Mr El Boujaïdi has adduced no new evidence since his conviction on 12 January 1989.
He cannot argue, as an unmarried man, that his exclusion from French territory is an intolerable interference in his family life within the meaning of Article 8 of the Convention ...
The offences he has committed, after two previous convictions for drug offences, make his presence on French territory dangerous for public health and public order.
...”
16. On 15 March 1994 the Court of Cassation (Criminal Division) dismissed an appeal on points of law lodged by the applicant on 30 November 1992 against the judgment of the Lyons Court of Appeal on the ground that Mr El Boujaïdi’s statement of the grounds of appeal did not bear his signature.
17. On 22 July 1993 Mr El Boujaïdi made a third application requesting the Lyons Court of Appeal to rescind the exclusion order. In support of his appeal – which was based on Article 8 of the Convention – he pleaded changes in his personal circumstances, namely the fact that he was living with a Frenchwoman, Mrs M., and was the father of the child she had given birth to on 6 July.
On 5 August 1993 the social worker at the prison where Mr El Boujaïdi was detained wrote to his lawyer in the following terms:
“...
In reply to your letter of 28 July 1993 concerning the steps taken over the last few months regarding recognition of the child of Mr El Boujaïdi, currently imprisoned, for whose social welfare I am responsible, I can inform you that, at the request of Mr El Boujaïdi and [Mrs M.], his cohabitant:
1. In April I prepared the paperwork for a prenatal recognition of paternity and sent the file both to the town hall of La Talandière and to Assistant State Counsel so that the appropriate submissions could be made to the Registrar of Births, Marriages and Deaths.
2. As this application had been unsuccessful and the child had been born – on 6 July 1993 – I compiled a new recognition of paternity file and sent it on 3 August 1993 to State Counsel’s Office at the Saint-Etienne tribunal de grande instance.
...”
18. On 26 August 1993 the exclusion order was enforced.
19. On 20 October 1993, at the French Consulate in Fez, Mr El Boujaïdi recognised paternity of Mrs M.’s child.
20. In a judgment of 16 December 1993 the Lyons Court of Appeal refused the application to have the exclusion order rescinded on the following grounds:
“Mr El Boujaïdi’s lawyer has produced various documents showing that Mr El Boujaïdi met Mrs M. in January 1992, that is at a date when he should not have been present on French territory. Their child was born on 6 July 1993. The circumstances he relies on therefore came into being at a time when he was permanently excluded from French territory.
The exclusion order was imposed to penalise a dangerous trade in heroin. That being so, the Court does not see fit to allow the present application.
...”
21. Relying mainly on Article 8 of the Convention and the European Court’s case-law, the applicant appealed on points of law. In a judgment of 25 October 1994 the Court of Cassation dismissed the appeal on the following grounds:
“The judgment under appeal shows that Abderrahim El Boujaïdi, who is a Moroccan national, was sentenced, inter alia, to be permanently excluded from French territory for an offence against the dangerous drugs legislation, in a judgment of the Lyons Court of Appeal of 12 January 1989, which has become final, and that by an application dated 22 July 1993 he sought to have that exclusion order rescinded.
In rejecting that application the Court of Appeal observed that the family circumstances on which the appellant relies came into being while he was permanently excluded from French territory. It further stated that the purpose of the additional penalty imposed on the appellant was to ‘penalise a dangerous trade in heroin’.
… Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not prohibit limitations prescribed by law on the right to respect for family life, provided that they are necessary for, among other things, public safety, the prevention of disorder and the protection of health. That is the position in the present case.
It follows that the appeal, which amounts to a challenge to the courts’ discretionary power under Article 55-1 of the Criminal Code, then in force, cannot be allowed.
...”
22. Article L. 630-1 of the Public Health Code formerly provided:
“... the courts ... may order an alien convicted of an offence under Article L. 627 to be permanently excluded from French territory.
Exclusion from French territory shall of itself entail the deportation of the convicted person at the end of his sentence.
...
Where a person, on conviction, is permanently excluded from French territory, he may not request the benefit of the provisions of Article 55-1 of the Criminal Code.”
Law no. 91-1383 of 31 December 1991 replaced the last three paragraphs by the following provisions:
“However, exclusion from French territory shall not be imposed on:
...
2. a convicted alien who is the father or mother of a French child resident in France, provided that he or she is vested with or shares parental authority over that child or provides for its needs;
...
Nor shall exclusion from French territory be imposed on a convicted alien who can prove either:
1. that he has been normally resident in France since reaching the age of 10 at the most or for more than fifteen years; or
2. that he has been lawfully resident in France for more than ten years.
...
Exclusion from French territory shall of itself entail the convicted person’s deportation, where necessary after the end of his prison sentence.”
Article L. 630-1 was repealed by Law no. 92-1336 of 16 December 1992.
23. Article 55-1 of the Criminal Code provides:
“...
Any person who has incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ..., in whole or in part, or vary its duration.
…”
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-113812
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BUREŠ v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens
TEXT: 6. The applicant was born in 1985 and lives in Brno. He is a violoncello player and has been diagnosed as having a psycho-social disability. At the material time he weighed 64 kg and was 176 cm tall. In the past, he has been treated in Italian psychiatric hospitals as a voluntary patient. At the time of the events at issue, he was using Akineton, a calming psychiatric medication prescribed to him by his psychiatrist.
7. On 9 February 2007 the applicant inadvertently overdosed on Akineton. In the evening, he left his flat and went to buy some food. Being under the influence of the medication, he did not notice that he was wearing only a sweater, but no trousers or underwear. On the way he was stopped by a police patrol that assumed that he was a drug addict and called an ambulance, which took him to Brno-Černovice Psychiatric Hospital. The record drawn up by the ambulance staff states that the applicant was receiving psychiatric treatment and that he was calm during transport.
8. At the hospital he was examined by Dr V., who did not find any injuries on the applicant’s body and sent him to the sobering-up centre in the same hospital at about 8 p.m. The applicant was calm during the medical examination. In the sobering-up centre he was again examined by Dr H., who confirmed that there were no injuries on the applicant’s body when he was admitted to the centre.
9. On 10 February 2007 at 7:24 a.m. the applicant was transferred to the Intensive Psychiatric Care Unit where, according to the admission record, he had visible abrasions on the front of his neck, both wrists and both ankles, caused probably by friction against textile, and abrasions of an unspecified different type on his knees. He complained about his treatment in the sobering-up centre to the hospital authorities, but they did not take any action.
10. On 15 February 2007 the applicant was examined by a neurologist, who stated that as a result of the use of straps the applicant suffered severe paresis of the left arm and medium to severe paresis of the right arm. He began a course of intensive treatment at the Rehabilitation Unit.
11. The applicant remained in the hospital involuntarily until released on 13 April 2007.
12. However, because of his two-month hospitalisation, he was confused and was not able to fully take care of himself. He voluntarily returned to the hospital on 14 April 2007 and remained there until 1 July 2007.
13. The following facts are disputed by the parties.
14. According to the applicant, at 8.10 p.m. on 9 February 2007 he was strapped to a bed with leather straps around his wrists, knees and ankles by two male nurses, Mr M. and Mr H. While strapping him, they kneeled on his chest and verbally abused him. He remained strapped for the whole night, until 6.30 a.m. The staff did not check up on him during that time. As the straps were too tight, he struggled to breathe and as a result of insufficient blood circulation the nerves in his arms were damaged.
15. According to the Government the applicant was strapped to a bed for three intervals, namely, from 8.10 p.m. to 10 p.m., 4.30 a.m. to 5 a.m. and 6.30 a.m. to 7.15 a.m.
16. They submitted a record from the sobering-up centre containing the following information. When brought to the centre the applicant was intoxicated and was put to bed. He was unstrapped at 10 p.m. At 4.30 a.m. he attacked a nurse and was strapped again. Checks were carried out. The applicant was restless. At 6.30 a.m. he was checked on and again strapped. The record noted that he showed destructive behaviour. He was released at 7.15 a.m. and sent to the psychiatric hospital.
17. The version of the record submitted by the applicant and obtained from his medical files contains less information. The information about the release of the applicant at 10 p.m. is illegible. According to the Government, the version submitted by the applicant was an incomplete version sent to the psychiatric hospital as an accompanying document.
18. On 12 February 2007 the hospital informed the Brno Municipal Court (městský soud) that the applicant had been detained because he showed signs of a mental illness and was a danger to himself and his surroundings. He was described as –“restless, aggressive and suspected of intoxication by psycho-stimulants”.
19. On 16 February 2007 the court began reviewing the lawfulness of the applicant’s involuntary admission under Article 191b of the Code of Civil Procedure. At the same time, it appointed an attorney, Ms P., to represent the applicant in the proceedings. On the same day a court employee visited the hospital and questioned the applicant’s treating doctor, Dr V., in the absence of the applicant and his representative. Dr V. testified that the applicant had been admitted to the hospital due to his confusion, restlessness and inappropriate behaviour and that he had been intoxicated when admitted. He further stated that the applicant was only partly able to understand the proceedings. The court employee did not question or even see the applicant because Dr V. told her that contact with him “would not be entirely beneficial”.
20. On the same day and without any further evidence the court ruled that the applicant’s involuntary admission had been lawful because he suffered from an illness that made him dangerous to himself and his surroundings. The decision was served on the applicant’s representative only. The latter did not take part in the proceedings, not being aware of them as the decision on her appointment was sent to her together with the decision on the merits. The applicant never saw her during his detention.
21. After his release in July 2007, the applicant contacted a local office of the Mental Disability Advocacy Center (“the MDAC”). On 10 July 2007 an MDAC lawyer lodged an appeal on his behalf, applying at the same time for a waiver of the deadline for lodging the appeal.
22. On 20 August 2007 the Municipal Court granted the waiver. However, on 31 October 2007, the Brno Regional Court (krajský soud), terminated the appeal proceedings without deciding on the merits. It stated that the applicant had been released on 13 April 2007, that on 30 May 2007 the Municipal Court had stayed the proceedings on the applicant’s continuing detention and that, therefore, the court did not have the authority to deal with the case.
23. In the meantime, on 23 July 2007, the applicant lodged an action for nullity (žaloba pro zmatečnost) under Article 229 § 1 c) of the Code of Civil Procedure seeking to have the Municipal Court’s decision of 16 February 2007 quashed on the ground that he had been denied the right to participate in the proceedings and had not been properly represented. On 22 May 2008 the Municipal Court dismissed the applicant’s action, finding, inter alia, that Ms P. had not been wholly inactive, referring to a letter of 26 February 2007 by which she had allegedly tried to establish contact with the applicant, but which, according to the applicant, had never been delivered to him. On 25 February 2009 the Regional Court upheld the decision.
24. On 5 February 2008 the applicant lodged a constitutional appeal challenging the decision of 31 October 2007 and alleging a violation of his rights to liberty, a fair trial and an effective remedy because the Regional Court had failed to rule on the merits of his appeal and thus the legality of his detention in the psychiatric hospital.
25. On 18 March 2008 the Constitutional Court (Ústavní soud) dismissed his appeal on the grounds that he had not exhausted all available remedies. It held that the applicant should have lodged a plea of nullity under Article 229 § 4 of the Code of Civil Procedure against the 31 October 2007 decision of the Regional Court.
26. After ruling on the lawfulness of the applicant’s involuntary admission to the hospital, the Municipal Court continued proceedings under Article 191d of the Code of Civil Procedure to review the lawfulness of the applicant’s continuing detention. On 6 March 2007 a forensic psychiatric expert was appointed for these purposes. On 30 May 2007 the court terminated the proceedings without deciding on the merits, the applicant having been released in the meantime.
27. On 7 June 2007 the applicant filed a criminal complaint concerning the measure of restraint applied to him and alleged ill-treatment on the night from 9 to 10 February 2007 in the sobering-up centre of the psychiatric hospital.
28. He was questioned by the police on 29 June 2007 and gave a full account of the events. The police then questioned numerous other persons.
29. The male nurses on duty, Mr M. and Mr H., did not recall the applicant at all and were not able to provide any specific information about him. Mr. M noted that during the winter of 2007 checks had been always carried out in accordance with the instructions of the psychiatric hospital management.
30. The third nurse on duty that night, Ms K., stated that the applicant had been strapped to the bed because he had been restless and intoxicated by an unknown substance and had refused to undergo a blood test to identify the substance. She admitted that it was possible that regular checks every twenty minutes might not have been performed due to the high number of patients at the centre that night. She also alleged that the applicant had attacked a male nurse at 4.30 a.m. but she could not remember who exactly.
31. Dr H., who had been on duty at the sobering-up centre that night, confirmed that the applicant had had no injuries when he had been admitted. He noted that the applicant had been strapped to the bed due to his restlessness but that he and other staff had duly checked on him.
32. Nurse P. recalled that while she was taking over patients from Ms K. at around 6 a.m. in the morning of 10 February, the applicant’s arms and legs had been strapped. They had tried releasing the straps one by one but because he defended himself each time a limb was released he was strapped again.
33. In his report of 10 December 2007 commissioned by the police, a forensic expert, Dr V., stated that the applicant had suffered bilateral severe paresis of the elbow nerves as a result of compression of the nerves and blood vessels. He confirmed that these injuries corresponded to the cause as described by the applicant. According to him, the injury on the applicant’s left arm limited his ability to play the violoncello. He concluded that the injury would have a long-lasting effect which was unlikely to be permanent.
34. On 11 December 2007 the Brno-Komárov Municipal Police Directorate (městské ředitelství policie) terminated the criminal proceedings, finding that no criminal offence had been committed regarding the applicant’s strapping on the night of 9 to 10 February 2007. It held that the applicant had suffered the injuries partly as a result of the staff’s failure to check on him regularly but that the extent of the guilt of individual suspects could not be determined. It also held that the injuries had almost healed and that the applicant was partly responsible for them.
35. The applicant appealed, disputing the conclusions of the police, and requested that the doctors and nurses give evidence again.
36. On 12 February 2008 the Brno Municipal Prosecutors’ Office (městské státní zastupitelství) dismissed the applicant’s appeal. Without examining any additional evidence it stated that the strapping of the applicant on account of his aggressive behaviour at the time of his admission to the sobering-up centre had been in compliance with the law and the hospital’s internal rules and he had been checked on every twenty minutes. The applicant had been strapped from 8.10 p.m. to 10 p.m., from 4.30 a.m. to 5 a.m. and from 6.30 a.m.
37. The applicant lodged a constitutional appeal claiming a violation of Articles 3, 6 § 1 and 13 of the Convention. He alleged that the investigation had not been effective because, inter alia, he had not been allowed to be present during the questioning of witnesses and put questions to them.
38. On 30 October 2008 the Constitutional Court dismissed his constitutional appeal as manifestly ill-founded. It held that there was no right to have a third person prosecuted so the applicant could claim his rights only in civil proceedings for damages and protection of his personality rights (ochrana osobnosti). It further found no violation of procedural obligations as developed by the Court under Article 3 of the Convention. It noted that the police had conducted a number of interviews and examined other evidence and that the investigation had also been independent and prompt. Lastly, it held that it had no jurisdiction to rule on the ill-treatment in the hospital because that was an instantaneous act, whereas it could only rule on interference with rights that was ongoing and that could be remedied by a decision on its part.
39. On 8 December 2008 the applicant instituted proceedings for protection of his personality rights against Brno-Černovice Psychiatric Hospital, claiming a violation of his right to liberty, inhuman treatment and interference with his health and physical integrity.
40. On 19 January 2012 the Brno Regional Court rejected his claim, holding that the applicant’s internment in the sobering-up centre and the use of restraints had been necessary for his own protection and that of his surroundings.
41. The applicant appealed and the proceedings are pending.
42. Under Article 191a a health-care facility that admits a patient against his or her will must inform the competent court within twenty-four hours.
43. Under Article 191b § 1 a court has to review the lawfulness of an involuntary admission to a health-care facility within seven days. Article 191b § 2 provides that the patient has a right to be represented by counsel of his or her own choosing. If he or she does not have counsel, the court shall appoint him or her an attorney. In accordance with Article 191b § 3, the court shall assess evidence, hear the detained person, his or her treating doctor and other persons at the detained person’s request unless it considers it unnecessary.
44. Under Article 191c an appeal can be lodged against a decision taken under Article 191b, but does not have a suspensive effect. The health-care facility can release the patient even if a court has declared that the involuntary admission was lawful.
45. Article 191d § 1 provides that if the court finds that the admission was lawful, it shall continue to review the lawfulness of the continued confinement. Pursuant to paragraph 2, the court shall appoint an expert to assess the necessity of the confinement. That expert must not be working in the health-care facility where the person is detained. In accordance with paragraph 3 the court shall hold a hearing and summon the patient and his or her counsel (provided that according to the treating doctor or written expert opinion the patient is able to follow and understand the meaning of the proceedings). At the hearing, the court shall hear the expert, the treating doctor if needed and the patient and assess any other relevant evidence. Its decision must be issued no later than three months from the decision by which the admission to the health care facility was approved.
46. Under Article 191f the patient, his or her counsel, guardian and other persons close to him may, before the expiration of the time for which his or her admission to the health-care facility was approved, request a new medical examination and release, if there is a reasoned presumption that continued confinement is not necessary.
47. Under Article 229 § 1 c) a final court decision may be challenged by an action for nullity on the ground that a party to the proceedings lacked legal capacity to act or could not attend the court and was not properly represented. Paragraph 4 provides that an action for nullity may also be lodged against a final decision of an appellate court by which an appeal was dismissed or the appellate proceedings were terminated.
48. Under section 23(4)(b) a person can be involuntarily hospitalised if he shows signs of a mental illness and is a danger to himself or his surroundings.
49. Section 17(1) defines an alcohol and drug sobering-up centre as a health-care facility established by a regional self-governing unit.
50. Section 17(2) stipulates that should a health-care facility find that a person’s life is not endangered by failure of basic vital functions but that he or she is under the influence of alcohol or another drug and cannot control his or her behaviour, thereby directly endangering him or herself or other persons, public order or property, or is causing public annoyance, that person shall undergo treatment and stay at the sobering-up centre for however long is necessary for the acute intoxication to subside.
51. This guideline stipulates, inter alia, the following:
“The use of measures of restraint must be considered as a last resort in cases when it is necessary for the protection of the patient, other patients, the patient’s surroundings and staff of psychiatric facilities. They may be used only after all other possibilities have been exhausted. Any decision to restrain the patient must be sufficiently grounded. Restraint cannot be used to facilitate treatment or to deal with a restless patient. Potential causes of problematic behaviour, for example, pain, discomfort, side effects of medicinal products, stress, interpersonal problems between the caregivers and the patient, or other illnesses must always be identified. The use of measures of restraint is justified only if a removable cause of the patient’s behaviour cannot be found or in situations when the risk arising from the patient’s behaviour is unacceptably high. The benefit of the use of restraining means must outweigh the risks ...
2. Measures of restraint can be used only exceptionally and only when the patient behaves in a way which endangers himself and his surroundings, and not on an educational or corrective basis. In the case of each individual patient it is necessary to use the most gentle and appropriate means of restraint ...
5. A patient restrained by these means shall be checked on on a regular basis, intervals between the checks shall be specified, provisions shall be put in place to prevent the patient hurting himself or suffering from dehydration, malnutrition, hypothermia and pressure ulcers, and to allow for personal hygiene. Measures of restraint should be used for the shortest time possible, and during checks the need for the measures and the possibility of using less restraint should be reassessed ...
6. The doctor shall decide on the use of measures of restraint, and make a record that shall always include: the name of the person who ordered the measure of restraint, the type of restraint used, the reason for using it, the time when restraint was employed and the time when it ended, the frequency of checks by the medical staff and the doctor, a description of the person’s physical and mental condition ... A member of the medical staff shall inform the doctor of any change in the patient’s symptoms. The record on the use of restraint shall be subsequently signed by the head doctor during the ward round.”
52. In its section on the use of restraints the Guidelines contain similar principles as the above-mentioned Guideline no. 1/2005 of the Journal of the Ministry of Health. In particular they state that mechanical restraints should be used only as a matter of last resort. Strapping to a bed should be applied only in cases of serious manifestations of distress endangering surroundings, auto-aggressive manifestations with immediate risk of selfharm or suicide or conditions that will with the highest probability result in these manifestations.
They also state that all circumstances connected with the use of restraints must be transparently and clearly documented. Every use of restraints must be recorded in a concrete way, including, inter alia, the time when the restraints were applied and removed and checks on the patient.
53. On 14 January 2009 the Supreme Court adopted an opinion on this matter, because the courts had not been dealing with cases concerning proceedings to decide on the lawfulness of admission to a health-care facility (Article 191b of the Code of Civil Procedure) and continuing confinement therein (Article 191d of the Code of Civil Procedure) in a uniform manner.
It held, inter alia, that if the detained person is released there are no more reasons for continuing the proceedings either under Article 191b or 191d and both should be discontinued.
54. The Articles, drawn up by the International Law Commission of the United Nations, are largely considered to contain rules of customary international law. They stipulate, inter alia, the following possibilities of attribution of a conduct to a State:
“1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State.”
“The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.”
In its commentary to Article 5, the International Law Commission explained that the rule dealt with situations when entities which were not considered organs of a State exercised functions of a public character normally exercised by State organs, and the conduct of the entity was related to the exercise of the governmental authority concerned. It gave the power of detention as an example of such a public function.
55. Article 27, entitled “Seclusion and restraint” stipulates:
“1. Seclusion or restraint should only be used in appropriate facilities, and in compliance with the principle of least restriction, to prevent imminent harm to the person concerned or others, and in proportion to the risks entailed.
2. Such measures should only be used under medical supervision, and should be appropriately documented.
3. In addition:
i. the person subject to seclusion or restraint should be regularly monitored;
ii. the reasons for, and duration of, such measures should be recorded in the person’s medical records and in a register.
4. This Article does not apply to momentary restraint.”
56. The CPT standards contain the following rules on restraining patients in psychiatric establishments:
“Involuntary placement in psychiatric establishments Extract from the 8th General Report [CPT/Inf (98) 12]
47. In any psychiatric establishment, the restraint of agitated and/or violent patients may on occasion be necessary. This is an area of particular concern to the CPT, given the potential for abuse and ill-treatment.
The restraint of patients should be the subject of a clearly-defined policy. That policy should make clear that initial attempts to restrain agitated or violent patients should, as far as possible, be non-physical (e.g. verbal instruction) and that where physical restraint is necessary, it should in principle be limited to manual control.
Staff in psychiatric establishments should receive training in both non-physical and manual control techniques vis-à-vis agitated or violent patients. The possession of such skills will enable staff to choose the most appropriate response when confronted by difficult situations, thereby significantly reducing the risk of injuries to patients and staff.
48. Resort to instruments of physical restraint (straps, strait-jackets, etc.) shall only very rarely be justified and must always be either expressly ordered by a doctor or immediately brought to the attention of a doctor with a view to seeking his approval. If, exceptionally, recourse is had to instruments of physical restraint, they should be removed at the earliest opportunity; they should never be applied, or their application prolonged, as a punishment ...
50. Every instance of the physical restraint of a patient (manual control, use of instruments of physical restraint, seclusion) should be recorded in a specific register established for this purpose (as well as in the patient’
This will greatly facilitate both the management of such incidents and the oversight of the extent of their occurrence.”
“Means of restraint in psychiatric establishments for adults Extract from the 16th General Report [CPT/Inf (2006) 35]
43. As a general rule, a patient should only be restrained as a measure of last resort; an extreme action applied in order to prevent imminent injury or to reduce acute agitation and/or violence ...
52. Experience has shown that detailed and accurate recording of instances of restraint can provide hospital management with an oversight of the extent of their occurrence and enable measures to be taken, where appropriate, to reduce their incidence.
Preferably, a specific register should be established to record all instances of recourse to means of restraint. This would be in addition to the records contained within the patient’”
“118. At Brno Psychiatric Hospital ... [t]he restraints would be applied either on the patient’s own bed or in a separate room close to the nurses’ office. A protocol on the use of immobilisation was in force, but the protocol does not mention the surveillance intervals; it appears that the hospital staff had adopted a practice to monitoring an immobilised patient every twenty minutes.
The delegation was pleased to note that registers recording the use of restraints had been introduced on the wards of Brno Psychiatric Hospital, thus meeting a longstanding CPT recommendation. However, the delegation found that the entries were not always meticulously kept; the release time and, on occasion, the moment of application of the immobilisation were not recorded.
As indicated above (cf. paragraph 114), in the CPT’s view, patients who are immobilised should always be subject to continuous, direct personal supervision by a member of staff. However, the delegation was told that a pilot project on ward 12 to have patients accompanied by a member of staff for the full duration of the immobilisation had failed due to a lack of staff. Nevertheless the CPT considers that hospital management should ensure the permanent presence of a staff member whenever a patient is immobilised.
The CPT recommends that in Brno Psychiatric Hospital:
- the register on restraints clearly records the duration of the measure, as well as all other events that occur during the period of restraint;
- the protocol on restraints be amended in order to include a paragraph on supervision of an immobilised patient.
Further, the CPT recommends that all patients who are immobilised are always subject to continuous, direct personal supervision by a member of staff.”
VIOLATED_ARTICLES: 3


ITEMID: 001-105929
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KUZLAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: The applicant was born in 1958 and is serving a prison sentence in Wronki Prison.
On an unspecified date in January 2000 the applicant lodged with the Gliwice Regional Court (Sąd Okręgowy) a civil action against the State Treasury and Racibórz Prison. He sought compensation for the loss of vision in his left eye which, in his view, resulted from the insufficient medical care provided to him in Racibórz Prison after his accident of 17 September 1999 and from the inadequate conditions of his detention in that facility.
On 15 May 2000 the trial court decided to grant the applicant legal-aid. On 9 November 2000 a hearing was held. On 10 October 2001 the court admitted to the case file a report of an expert in ophthalmology.
On 18 December 2003 the Gliwice Regional Court dismissed the applicant’s claim. The court held that there was no causal link between the applicant’s accident, which was a direct cause of his eye-condition, and the fact that he had been held in solitary confinement in Racibórz Prison without having the assistance of a third person. The court found that, in detention, the applicant had received regular ophthalmological care and treatment since he was already blind in his right eye.
Throughout the proceedings the applicant was represented by a legal-aid lawyer.
The applicant appealed, arguing that the first-instance court had not examined his witnesses.
On 30 July 2004 the Katowice Court of Appeal (Sąd Apelacyjny) upheld that judgment on appeal. The applicant was represented before the appeal court by a new legal-aid lawyer. The judgment was served on the applicant on 24 September 2004.
The applicant asserted that he had not been notified of the date of the appellate hearing, that his lawyer had been changed without his being aware of it and that he had not been granted access to the case file. He also submitted that the trial court had not examined his witnesses.
On 29 September 2004 the applicant complained to the Katowice Regional Bar Association (Okręgowa Rada Adwokacka) that his lawyer had not met with him before the appeal hearing and that he had collaborated with the respondent.
By letter of 9 November 2004 the applicant was informed that his complaint had been considered ill-founded. An internal inquiry revealed that the applicant’s newly-appointed lawyer had sufficient time and means to study the case file and that he had been well prepared to argue the case. It had not been necessary for him to meet with the plaintiff in person before the trial.
A cassation appeal was not available in the applicant’s case.
On 9 November 2004 the applicant filed a complaint under the 2004 Act.
On 14 December 2004 the Katowice Court of Appeal rejected the applicant’s complaint. The court held that the 2004 Act did not apply in the applicant’s case because the proceedings in question had been terminated prior to the applicant’s length of proceedings complaint.
On 14 January 2005 the applicant lodged a claim for damages under section 16 of the 2004 Act read in conjunction with Article 417 of the Civil Code.
On 21 June 2006 the Gliwice Regional Court dismissed the applicant’s claim. The court’s judgment was not accompanied by a reasoned opinion. It appears, however, that the court found that the applicant had failed to prove that the proceedings in his case had been lengthy or that he had incurred any pecuniary damage as a consequence of a breach of the reasonable-time requirement.
On 22 August 2006 a copy of the judgment together with instructions on lodging an appeal was served on the applicant.
The applicant did not appeal and the judgment became final on 13 September 2006.
In 2007 the applicant informed the Court that he had not appealed against the judgment in question because he had considered it pointless in the light of the fact that Poland was a country not subject to the rule of law.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


ITEMID: 001-22779
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BENEDEK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Pavol Benedek, is a Slovakian national, who was born in 1932 and lives in Sečovce. He is represented before the Court by Mr V. Hajduk, a lawyer practising in Michalovce.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 November 1996 the applicant’s neighbour, together with his wife and son, entered the applicant’s courtyard against the applicant’s will. They had an altercation with the applicant in the course of which both the applicant and the neighbour’s wife were injured.
The applicant was examined by doctors. The medical certificates indicate that the applicant’s eye was injured and that he had facial bruising. The applicant was unable to work for fourteen days. Subsequently, the doctors established that the applicant’s ear had been seriously damaged. According to the applicant, this was due to the injury which he suffered on 9 November 1996.
On 9 November 1996 the applicant filed a criminal complaint with the police department in Sečovce in which he complained that he had been wounded and that his right to respect for his home had been violated. On 20 December 1996 the police concluded that the neighbours had not committed a criminal offence. The case was submitted to the Trebišov District Office with a view to establishing whether the actions complained of constituted minor offences falling under the Minor Offences Act.
Subsequently, the Trebišov Public Prosecutor’s Office instructed the police to investigate whether or not an offence had been committed in the context of the above altercation between the applicant and his neighbours. On 22 April 1997 the District Office stayed the proceedings pending the outcome of the investigation. It appears that criminal proceedings were brought against the applicant on the ground that he had injured the neighbour’s wife. The criminal proceedings are still pending.
On 12 November 1997 the Trebišov District Office discontinued the proceedings under the Minor Offences Act. It found that more than one year had lapsed from the date on which the alleged minor offences had been committed and that the liability of the persons concerned had lapsed.
On 27 February 1998 a public prosecutor of the District Prosecutor’s Office in Trebišov informed the applicant that he had found no shortcomings in the way in which his criminal complaint had been investigated.
On 20 May 1998 the Košice Regional Prosecutor’s Office dismissed the applicant’s complaint that the police and public prosecutors had failed to investigate properly the incident of 9 November 1996. The letter stated that the neighbours’ actions could only be qualified as minor offences.
The Civil Code and the relevant practice
Under Article 126(1), owners of property are entitled to protection against persons who interfere with their property rights.
In accordance with the relevant case-law, a court shall order a person who interfered, without justification, with the owner’s rights to abstain from such interference. A claim under Article 126(1) may be successfully lodged even in cases where the interference consisted of a single action which remained without consequences if it cannot be excluded that the action would be repeated in the future (Supreme Court’s Collection of Judicial Decisions and Opinions, nos. 3/1971 and 65/1972).
The Criminal Code
Under Article 221, a person who commits an assault in that he or she deliberately damages the health of another person shall be punished by a fine or by a prison sentence up to five years.
Pursuant to Article 222(1), a person who deliberately causes serious damage to another person’s health shall be punished by a prison sentence between two and eight years.
Article 238 provides that a person who, without justification, enters the domestic premises of another person commits the offence of violation of domestic privacy. Such an offence is punishable, depending on the circumstances, by a fine or by a prison sentence of up to five years.
Regulation No. 32/1965
Regulation No. 32/1965, as amended, governs compensation for damage caused to a person’s health.
Pursuant to section 2(1), adequate compensation shall be awarded in respect of pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation.
Sections 4-7 govern the payment of compensation for lasting effects of damage to a person’s health.


ITEMID: 001-58076
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF BUCKLEY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 14+8
JUDGES: John Freeland
TEXT: 7. The applicant is a British citizen and a Gypsy. She lives with her three children in caravans parked on land owned by her off Meadow Drove, Willingham, South Cambridgeshire, England. She is married but separated from her husband in 1991.
8. As far back as can be traced, the applicant's family have been Gypsies based in South Cambridgeshire. She has lived in caravans all her life and as a child travelled with her parents in this area. She continued this itinerant life until shortly before the birth of her third child in 1988.
9. In 1988 the applicant's sister and brother-in-law acquired a one-acre (approximately 4000 square metres) site off Meadow Drove, Willingham, and were granted personal, temporary planning permission for one living unit, comprising two caravans.
10. At her sister's invitation she moved on to this site in November 1988 when she was expecting her third child, because she had found it hard being constantly on the move with young children. During this period of settled living the two eldest children were able to attend a local school, where they integrated well.
11. On an unspecified date in 1988, the applicant acquired part of her sister's land (0.16 hectare) to the rear of the site, furthest away from Meadow Drove. She moved her three caravans on to this plot.
12. Her land is now part of a group of six adjacent sites which are occupied by Gypsies. One plot has received permanent planning permission for the residential use of three caravans. The site occupied by the applicant's sister enjoyed temporary permission until 4 August 1995. The remaining three sites have been occupied without planning permission and the occupants have been subject to enforcement proceedings (see paragraph 32 below). The occupants of two of those sites have also introduced applications before the European Commission of Human Rights.
13. The applicant has stated that she intends to resume her travelling life sometime in the future, and to pass on this tradition to her children. In 1993 she travelled with her sister to Saint Neots in Cambridgeshire because her father-in-law was dying. She was able to park on waste ground for two weeks, but had to move on shortly after the funeral.
14. On 4 December 1989 the applicant applied retrospectively to South Cambridgeshire District Council for planning permission for the three caravans on her site.
She was refused on 8 March 1990 on the grounds that (1) adequate provision had been made for Gypsy caravans elsewhere in the South Cambridgeshire area, which had in the Council's opinion reached "saturation point" for Gypsy accommodation; (2) the planned use of the land would detract from the rural and open quality of the landscape, contrary to the aim of the local development plan which was to protect the countryside from all but essential development (see paragraph 30 below); and (3) Meadow Drove was an agricultural drove road which was too narrow to allow two vehicles to pass in safety.
15. On 9 April 1990 the Council issued an enforcement notice requiring the caravans to be removed within a month.
The applicant appealed against the enforcement notice to the Secretary of State for the Environment (see paragraph 33 below).
16. An inspector was appointed by the Secretary of State to report on the appeal (see paragraph 33 below). The inspector visited the site and considered written representations submitted by the applicant and the District Council.
In her report issued on 14 February 1991 the inspector observed that the local authority had granted planning permission to two caravan sites between the applicant's site and Meadow Drove (the applicant's sister's site and another), and to an agricultural workshop on land to the east of the site (which was occupied at the time of the inspection by an unauthorised road haulage business). The applicant's caravans were screened from the road because of these authorised and unauthorised developments. However, the inspector wrote that:
"... whether seen or not, the development subject of these notices [i.e. the applicant's caravan site] extends development further from the road than that permitted. It thus intrudes into the open countryside, contrary to the aim of the Structure Plan [see paragraph 30 below] to protect the countryside from all but essential development." The inspector also found that the access road to the site was too narrow for two vehicles to pass, and thus that the use of the site for caravans would not be in the interests of road safety. She considered the applicant's special status as a Gypsy and observed that in January 1990 there were over sixty Gypsy families on unauthorised sites in the district of South Cambridgeshire. She continued: "It is therefore clear in my mind that a need exists for more authorised spaces. ... Nevertheless, I consider it important to keep concentrations of sites for gypsies small, because in this way they are more readily accepted by the local community. ... [T]he concentration of gypsy sites in Willingham has reached the desirable maximum and I do not consider that the overall need for sites should, in this case, outweigh the planning objections."
She concluded by recommending that the appeal be dismissed.
17. The Secretary of State dismissed the appeal on 16 April 1991. The reasons given included the following:
"The decisive issue in regard to the planning merits of your appeals is considered to be whether the undisputed need for additional gypsies' caravan site provision, in the administrative areas of the District Council, and of the County Council, is so pressing that it should be permitted to override the objections on planning policy and highway safety grounds to the retention of the use of the appeal site as a residential caravan site for gypsies. On this approach, the view is taken that the objections to the continued use of the appeal site as a residential gypsy caravan site are so strong, on planning policy and highway safety grounds, that a grant of planning permission could not be justified, either on a temporary or personal basis. In reaching this conclusion, full consideration has been given to policy advice in the Department's Circular 28/77, giving guidance to Councils on the need to provide adequate accommodation in the form of caravan sites, for gypsies residing in or resorting to their area. However, on the available evidence, the view is taken, in agreement with the officer's appraisal, that the concentration of gypsy caravan sites around the Willingham area has reached the desirable maximum, and the overall need for additional sites should not outweigh the planning and highway objections arising from the continued use of this particular site."
The applicant did not appeal to the High Court because she was advised by counsel that no grounds arose in her case (see paragraph 34 below).
18. The applicant has been prosecuted for failure to comply with the enforcement notice of May 1990. On 7 January 1992 she was fined £50 and required to pay £10 costs. She has again been prosecuted on two occasions after the introduction of her application to the Commission on 7 February 1992. On 12 January 1994 the magistrates granted her an absolute discharge but ordered her to pay the prosecution costs. Finally, on 16 November 1994 she was fined £75 and ordered to pay £75 costs.
19. By a letter dated 20 May 1993, the Department of the Environment informed the District Council that the Secretary of State had decided to designate the area of South Cambridgeshire under section 12 of the Caravan Sites Act 1968 (see paragraph 37 below). It was noted that a small number of Gypsies still remained on unauthorised sites but that, in light of the provision made for sites which was greater than in any other district, it was considered "not expedient for adequate accommodation to be provided for Gypsies residing in or resorting to South Cambridgeshire district". The order designating the district of South Cambridgeshire came into force on 13 August 1993, but no longer applies because of the provisions of the Criminal Justice and Public Order Act 1994 (see paragraph 41 below).
20. On 19 September 1994 the applicant again applied for permission to station her caravans on her site, in the light of a change in the law (see paragraphs 40-42 below).
21. She was refused on 14 November 1994 on the grounds that (1) local planning policy dictated that development in open countryside should be restricted and no evidence to justify a departure from this policy had been advanced, and (2) adequate provision for Gypsies had been made along Meadow Drove (see paragraph 24 below).
22. The applicant (together with others occupying the neighbouring sites) appealed against this decision to the Secretary of State. A report was prepared by an inspector in May 1995. The inspector considered, first, whether the continued use of the land as a Gypsy caravan site would detract from the rural nature of the area, and, secondly, if so, whether there were any special circumstances sufficient to outweigh this objection. She found that the road safety objection, which had been one of the grounds of refusal in April 1991 (see paragraph 16 above), no longer applied. With regard to the first question, the inspector found that the applicant had a mobile home, three touring caravans and three sheds on her site. These were hidden from the road by the caravans on the sites in front and by an agricultural engineering business, the same depth as the applicant's site to the east. They were visible from other vantage points but could be adequately screened by planting hedges. However, she concluded that:
"... the continued use of the rear plots considerably extends the depth of development south of the road. This intensification of use in itself inevitably detracts from the rural appearance and generally open character of the area, contrary to the objectives of national and local countryside policy. I must therefore conclude that the continued occupation of the land as gypsy caravan sites is harmful to the character and appearance of the countryside."

"a relevant consideration that there is available alternative accommodation close by, which would enable the appellants to stay in the Willingham area and their children to continue at the local schools".
On the other hand,
"little weight [could] be given to the private sites at Cottenham. No substantive evidence was given by either the Council or the appellants as to whether plots were actually available there or their price".
The inspector considered the impact of Circular 1/94 (see paragraph 43 below) on the applicant's case, but concluded that, although it placed greater emphasis on the provision of sites by Gypsies themselves, it was government policy that proposals for Gypsy sites should continue to be determined solely in relation to land-use factors. She concluded that there had been no material changes since the last appeal was heard and the present appeal should therefore be dismissed.
23. Accepting the inspector's conclusions and recommendations, the Secretary of State dismissed the appeal on 12 December 1995. The applicant has filed an appeal to the High Court, which is now pending.
24. In November 1992 the County Council opened an official Gypsy caravan site in Meadow Drove, about 700 metres away from the applicant's land. The site consists of fifteen pitches, each comprising a fenced, partially grassed area with hard standing for caravans and its own brick building containing a kitchen, shower and toilet. Each pitch is designed to accommodate one permanent caravan, one touring caravan, one lorry and one car. They are joined by a central road and the site stands in open countryside.
25. Between November 1992 (when the site opened) and August 1995, twenty-eight vacancies have arisen there. The District Council contacted the applicant by letters dated 17 February 1992 and 20 January 1994, informing her of the possible availability of pitches on this site and advising her to apply for one to the County Council. The applicant has never taken any action in this regard.
26. Since the site opened, the following incidents have reportedly taken place there: (1) an unsubstantiated allegation in May 1993 that one of the residents was in possession of a firearm; (2) a fight in December 1993 during which a resident on the site was punched in the eye by another; (3) in 1994 a car was brought on to the site and set alight; (4) in the same year there was an incident of domestic violence; (5) also in 1994, the warden's office on the site was burgled and damaged when temporarily vacant; (6) in 1995 a site resident was convicted of conduct likely to cause a breach of the peace after exchanging words and threatening gestures with a District Council refuse collector on the site; (7) in March 1995 four pitches were damaged by vandalism and/or fire.
27. There are authorised privately run sites at Smithy Fen, Cottenham, about 7 kilometres from Willingham. In May 1995 the cost of purchasing a pitch on one of them reportedly varied between £7,000 and £40,000.
28. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) ("the 1990 Act") consolidated pre-existing planning law.
29. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).
30. An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). The local development plan in South Cambridgeshire restricts development in the countryside to that essential to the efficient operation of particular rural uses, such as horticulture, agriculture and forestry.
31. The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, para. 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).
32. If a development is carried out without the grant of the required planning permission, the local authority may issue an "enforcement notice", if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).
33. There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.
34. Again there is a further right of appeal "on a point of law" to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.
35. Part II of the Caravan Sites Act 1968 ("the 1968 Act") was intended to combat the problems caused by the reduction in the number of lawful stopping places available to Gypsies as a result of planning and other legislation and social changes in the post-war years. Section 16 defined "gipsies" as: "persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such".
36. Section 6 of the 1968 Act provided that it should be the duty of local authorities: "to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area". The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).
37. Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could "designate" that district or county (section 12 of the 1968 Act). The effect of designation was to make it an offence for any Gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10). In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of section 10.
38. By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act. He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, "the Cripps Report"). Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales. He found that: "Six-and-a-half years after the coming into operation of Part II of the 1968 Act, provision exists for only one-quarter of the estimated total number of gypsy families with no sites of their own. Three-quarters of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law: when they stop for the night they have no alternative but to break the law." The report made numerous recommendations for improving this situation.
39. Circular 28/77 was issued by the Department of the Environment on 25 March 1977. Its stated purpose was to provide local authorities with guidance on "statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management". It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report. Among other advice, it encouraged local authorities to enable self-help by Gypsies through the adoption of a "sympathetic and flexible approach to [Gypsies'] applications for planning permission and site licences". Making express reference to cases where Gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area.
40. Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that "it would be to everyone's advantage if as many gypsies as possible were enabled to find their own accommodation", and thus advised local authorities that "the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions". In addition, approximately £100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating Gypsy sites.
41. Section 80 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act (see paragraphs 35-37 above) and the grant scheme referred to in paragraph 40 above.
42. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as "a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner's consent". Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).
43. New guidance on Gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see paragraph 40 above). Councils were told that:
"In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control." However: "As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies ..."
NON_VIOLATED_ARTICLES: 14
8