ITEMID: 001-57425
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1985
DOCNAME: CASE OF ASHINGDANE v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 5-1;No violation of Art. 5-4;No violation of Art. 6-1
TEXT: 10. The applicant, Mr. Leonard John Ashingdane, is a British citizen born in 1929. On 23 November 1970, he was convicted by a court at Rochester, Kent, in England of dangerous driving and four offences of unlawful possession of firearms. Medical evidence was submitted to the effect that he was suffering from mental illness (paranoid schizophrenia) and his mental disorder was of a nature or degree which warranted his detention in a psychiatric hospital. The court made a hospital order under section 60 of the Mental Health Act 1959 ("the 1959 Act") together with an order under section 65 restricting his discharge without limit of time (see paragraph 26 below).
11. The applicant was (after a short period of detention in prison) initially detained at the local psychiatric hospital, Oakwood Hospital, in Maidstone, Kent. He twice absconded from Oakwood Hospital and the view was taken that the facilities there were not such that he could be contained. On 13 April 1971, the applicant was therefore transferred to Broadmoor Hospital, a "special hospital" for those requiring treatment under conditions of special security on account of their dangerous, violent or criminal propensities (see paragraph 25 in fine below).
12. Between April 1971 and October 1978, the applicant’s case was considered on four occasions by a Mental Health Review Tribunal (see paragraph 29 below), which advised on each occasion that he was not ready to be discharged or transferred. The Secretary of State for the Home Department ("the Home Secretary"), who was responsible under the 1959 Act for control of the applicant (see paragraph 26 below), followed their advice.
Periodic reports were also sent by his responsible medical officer to the Secretary of State for Social Services. At his own request, he was also examined, on at least two occasions during this period, by independent doctors. According to all these medical reports, the reasons for his continued detention were that he was diagnosed as suffering from paranoid schizophrenia, that his condition in Broadmoor was controlled by medication and supervision, that he was unwilling or unable to co-operate voluntarily in such treatment and that if he were released he might be dangerous.
13. On 31 October 1978, Dr. Maguire, a consultant forensic psychiatrist who was the applicant’s responsible medical officer at Broadmoor Hospital, reported that the applicant no longer posed "the threat he previously did" and might properly be treated in an open hospital. In the doctor’s view, the probability that he would be violent had diminished to the point where it was no longer necessary to treat him in the specially secure environment of Broadmoor, although he required continuing treatment in hospital. Dr. Maguire therefore recommended his transfer to Oakwood Hospital. The applicant was also examined by Dr. Sherry, a consultant psychiatrist at Oakwood Hospital, who confirmed this opinion.
In December 1978, in accordance with the relevant regulations (see paragraph 27 below), the Secretary of State for Social Services indicated his agreement with Dr. Maguire’s recommendation. On 1 March 1979, the Home Secretary gave his consent to the applicant’s transfer to a local psychiatric hospital (section 65 para. (3)(c) of the 1959 Act - see paragraph 27 below), provided that a suitable vacancy could be found.
14. However, the Kent Area Health Authority, the local authority responsible for Oakwood Hospital, refused to admit the applicant to Oakwood and the Secretary of State for Social Services refused to direct his transfer there (section 99 of the 1959 Act - see paragraph 27 in fine below). The reason for these refusals was that the two branches of the trade union of the nursing staff at Oakwood (the Confederation of Health Service Employees) were, and had since 1975 been, operating a total ban on the admission of offender patients subject to section 65 restriction orders (see paragraph 26 below). The union members considered that, owing to lack of adequate resources, they could not provide sufficient treatment, rehabilitation and security for section 65 patients in the open environment of Oakwood (as to which, see paragraph 24 below). The Secretary of State for Social Services had been advised by the Health Authority that to admit the applicant without the agreement of the nursing staff would be likely to result in a withdrawal of labour which could endanger the health and well-being of other patients and would not be in the applicant’s own interests. They had further advised that such a step would jeopardise the prospects of obtaining agreement of the staff to the lifting of the ban and that to admit the applicant to another hospital might not only result in disruptive industrial action at that hospital, but would be likely to worsen industrial relations at Oakwood itself.
No suitable accommodation could be found for the applicant at any hospital other than Oakwood and he therefore remained at Broadmoor.
Prior to this, the Department of Health and Social Security had made enquiries as to the need to continue the section 65 restrictions in the applicant’s case. On 19 February 1979, Dr. Maguire, as the applicant’s responsible medical officer, stated his view that "the restrictions should not be lifted ... until Ashingdane [had] demonstrated stability and indeed improvement in the open conditions of a conventional psychiatric hospital, over a reasonable period of time".
15. The applicant’s case was again considered by a Mental Health Review Tribunal on 23 August 1979. The Tribunal advised that it was essential for the applicant’s well-being that he should remain under direct supervision to ensure that he continued to take his medication, but agreed that his condition was sufficiently improved to warrant transfer to a local hospital. On 17 September 1979, the Home Secretary reaffirmed his agreement in principle to the applicant’s transfer. During this period, unavailing attempts were made on behalf of the local Health Authority to persuade the nursing staff at Oakwood to lift their ban on the admission of restricted patients.
16. In the meantime, having obtained legal aid, the applicant instituted High Court proceedings in August 1979 to challenge the legality of his continued detention at Broadmoor. He initially claimed various relief including:
i. a declaration that the Department of Health and Social Security, which was sued as representing the Secretary of State for Social Services, was under a statutory duty to provide him with hospital accommodation at Oakwood or some other appropriate local hospital;
ii. declarations that the Department and the Kent Area Health Authority were acting ultra vires in refusing to admit him to Oakwood Hospital because of the union’s ban;
iii. a declaration that the secretaries and other members of the two union branches at Oakwood Hospital were acting unlawfully in soliciting or causing the Department and the local Health Authority to act in breach of their statutory duty;
iv. an injunction restraining the branch secretaries and members from so acting.
The original statement of claim was amended in March 1980 to include an allegation that the union members were acting unlawfully in threatening to walk out of the hospital if the applicant was brought there, and to include claims for injunctions and damages in respect of such conduct.
17. On 21 December 1979, the action against the two union branch secretaries, who were being sued personally and as representing the members of the branches, was stayed, on their application, by Mr. Justice Dillon on the ground that proceedings were precluded by section 141 of the 1959 Act, which provided:
"1. No person shall be liable ... to any civil ... proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act ..., unless the act was done in bad faith or without reasonable care.
2. No civil ... proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court, and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care.
3. ..."
On the application of the Department of Health and Social Security and the local Health Authority, an order staying the proceedings against them was granted on 15 January 1980 by Mr. Justice Foster on the same ground.
18. The applicant appealed against both orders. On 18 February 1980, the Court of Appeal unanimously (a) dismissed the appeal against the order of Mr. Justice Foster relative to the Department and the Health Authority and (b) allowed the appeal against the order of Mr. Justice Dillon relative to the union secretaries.
Lord Justice Bridge delivered the first judgment. He noted that no leave had been sought of the High Court and that there was no allegation of bad faith or of acting without reasonable care against any of the defendants. The issue was therefore whether or not the acts out of which liability was alleged to arise came within the ambit of the immunity from suit conferred by sub-section 1 of section 141, as being acts done in the purported pursuance of the 1959 Act.
(a) As regards the first appeal, Lord Justice Bridge, dismissing Mr. Ashingdane’s main contention, stated that where a statutory authority was acting in good faith in what it believed to be the proper manner of discharging its statutory responsibilities, the fact that it may have been acting in a way which contravened the statute to the point of frustrating its policy and objects, could not lead to the conclusion that the original acts in good faith were not in purported pursuance of the Act. Section 141(1) of the 1959 Act propounded a subjective not an objective test: "if a person is acting honestly with the intention of performing, in the best way he knows how, the statutory functions or duties which are cast upon him, then it seems to me he is acting in purported pursuance of the statute". Although Mr. Ashingdane alleged a breach of statutory duty under section 3 of the National Health Service Act 1977 to provide hospital accommodation to meet all reasonable requirements (see paragraph 25 below), the essential act out of which liability was said to arise was the refusal of transfer, which fell within the protection of section 141. Applying the case of Pountney v. Griffiths ([1976] Appeal Cases 314 and [1975] 2 All England Law Reports 881), he further held that "section 141 does not create a personal immunity which is capable of being waived but imposes a fetter on the Court’s jurisdiction which is not so capable". For these reasons, Lord Justice Bridge, with whom Lords Justice Cumming-Bruce and Brightman concurred, was in favour of dismissing the appeal.
(b) As to the action against the union branch secretaries, Lord Justice Bridge, after considering the judgment in the case of Pountney v. Griffiths (ibid.), held that a decision by nursing staff to ban the admission of a whole class of patients, even if taken in the best of faith, was not within the express or implied authority of nurses under the 1959 Act. Nurses did not have authority under the 1959 Act to take decisions of broad policy. Consequently, the acts of the union secretaries were not protected by section 141 and the stay imposed by Mr. Justice Dillon on the action against them should therefore be removed. Lords Justice Cumming-Bruce and Brightman agreed with this conclusion.
19. The Court of Appeal refused the parties leave to appeal to the House of Lords. The union secretaries petitioned the House of Lords for leave but this was refused on 7 May 1980. The proceedings against them were ultimately discontinued (see paragraph 23 below).
20. During the course of the litigation referred to above, reports on the applicant’s condition were made on various occasions. Thus, on 19 October 1979, Dr. Maguire wrote:
"i. It is my opinion that transfer from Broadmoor for further treatment and rehabilitation in a local psychiatric hospital is an essential step in the plaintiff’s (i.e. Mr. Ashingdane’s) recovery.
ii. The disappointment at his rejection by Oakwood Hospital has made him tense and irritable. But more seriously, one of his former delusional beliefs was to the effect that hospital authorities were persecuting him by continuing to detain him illegally. This delusion cleared when he gained some measure of insight. I fear that continued undue detention here will reactivate this to delusional intensity again and thus precipitate full-scale relapse.
iii. His present mental condition remains reasonably stable and in my opinion he is suitable for transfer to Oakwood Hospital."
In January 1980, the applicant was again examined by Dr. Sherry of Oakwood Hospital. In his report dated 10 March 1980, Dr. Sherry confirmed that the diagnosis of paranoid schizophrenia remained unchanged. He had the impression there had been a slight deterioration in the applicant’s mental condition over the previous year. He expressed the following opinion as to Mr. Ashingdane’s condition:
"Although not overtly psychotic this man remains paranoid and I feel that his continued detention in Broadmoor is having an adverse effect on his mental health, i.e. it is making him even more paranoid. His drawn-out involvement with the High Court can only aggravate this paranoia and further constrict his outlook."
Dr. Sherry recommended that the applicant was not fit to return to the community but that it should be possible to manage him in an ordinary psychiatric hospital with a closed ward. It was unlikely that he would have to remain in such a closed ward for more than a year. The doctor was satisfied that he could be managed at Oakwood.
21. Until September 1980, the Area Health Authority continued to advise that they were unable to admit the applicant to Oakwood Hospital because of the union ban on admission of section 65 patients. However, on 4 September 1980 they stated that an agreement with the union had been reached enabling him to be admitted there. The solution reached involved the recruitment of extra staff in order to service the facilities needed for nursing a restricted patient.
22. On 15 September 1980, Dr. Maguire reported again that the applicant’s proper rehabilitation continued to necessitate in-patient treatment due to his "lack of insight and long institutionalisation". In the doctor’s opinion, continued detention was "necessary in the interests of the patient’s health or safety and for the protection of other persons".
23. The Home Secretary and the Secretary of State for Social Services both consented to the applicant’s transfer and he was admitted to Oakwood on 1 October 1980. Shortly thereafter, on the advice of his lawyers, his action against the union branch secretaries was discontinued.
In a letter of 3 June 1981, Dr. Maguire explained that, despite his earlier fears (see paragraph 20 above), "the applicant did remain reasonably stable during the relevant time" prior to transfer.
24. The differences between the two regimes and environments at Broadmoor and Oakwood as experienced by the applicant may be summarised as follows.
Security is a major concern at Broadmoor Hospital. The hospital buildings and grounds are surrounded by a high perimeter wall with a locked gate. Each of the several blocks in the hospital is locked all the time, frequently there is further security within the block and windows are barred. No patient moves beyond his ward without an escort unless he is paroled. The applicant never achieved paroled status. He worked in the kitchen gardens and during the day he had the relative freedom of this large, open area. Escorted visits to the community or to members of a patient’s family are effectively allowed only in exceptional compassionate circumstances and tend to be rare, not least because there are insufficient staff to undertake escort duties. During his stay at Broadmoor Hospital between 1971 and 1980, the applicant made one escorted visit to his mother and one to the neighbourhood of the hospital. Because of its relatively remote location and difficult communications, the possibility of visits to Broadmoor by members of the patient’s family is limited. Moreover, such visits, at least in the time that the applicant was detained at Broadmoor, were rarely private.
Ordinary psychiatric hospitals such as Oakwood house both voluntary and involuntary patients and no appreciable distinction is made in their regimes. Situated within the town of Maidstone, Oakwood Hospital is easily reached by public transport. There is no surrounding wall and neither the main entrance nor the reception area is locked. As Dr. Sherry had recommended (see paragraph 20 above), the applicant was at first placed in a closed ward for sixteen patients, male and female, which was locked, at least at night. There was no special security but a high staff/patient ratio. The work available to him at Oakwood during this initial period, although similar to that at Broadmoor, was subject to less and eventually to no supervision. With effect from December 1980, he was allowed freedom, unescorted, in the hospital grounds for two hours a day. In the summer of 1981, he was moved to an open ward. Since then, regular, unescorted leave to visit his family has become a feature of his life at Oakwood. As at November 1984, he was going home every weekend from Thursday till Sunday and was free to leave the hospital as he pleased on Monday to Wednesday, provided only that he returned to his ward at night.
25. At the material time in England and Wales, the law relating to the compulsory confinement of mentally disordered persons, and more particularly the detention of patients concerned in criminal proceedings, was contained principally in the 1959 Act. The greater part of this Act was repealed and replaced in 1983 by the Mental Health Act 1983 ("the 1983 Act" - see, for example, paragraphs 29 and 30 below).
Various general provisions are also contained in the National Health Service Act 1977 ("the 1977 Act"). Thus, section 3 imposes a duty on the Secretary of State for Social Services to provide hospital accommodation throughout England and Wales, "to such extent as he considers necessary to meet all reasonable requirements". By virtue of section 4, he is under a further duty to provide and maintain "special hospitals" for those mental health patients subject to detention "who in his opinion require treatment under conditions of special security on account of their dangerous, violent or criminal propensities".
26. Section 60(1) of the 1959 Act empowered criminal courts to direct, where appropriate, that a person convicted of an offence be dealt with by way of medical treatment rather than by way of punishment. By virtue of this section, a criminal court could, subject to certain conditions regarding in particular medical evidence, make an order (a "hospital order") authorising the convicted person’s compulsory admission to and detention in a mental hospital (see, for fuller details, the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 7, para. 10). Under section 65(1) of the 1959 Act, the court could by further order (a "restriction order") direct that the hospital order be subject to special restrictions in respect of discharge, either without limit of time or during a specified period. Before a restriction order could be made, it had to appear to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that such a measure was necessary for the protection of the public. Where a restriction order was made, responsibility for control of the patient, though not for his treatment, vested in the Home Secretary.
27. The transfer of mental health patients from one hospital to another is the responsibility of the hospital managers, this being in the case of special hospitals the Secretary of State for Social Services.
At the material time, the Secretary of State could authorise transfer of an offender patient from a special hospital if he were satisfied that arrangements had been made for admission to the hospital of transfer within a period of 28 days (section 41 of the 1959 Act and Regulation 13 of the Mental Health (Hospital and Guardianship) Regulations 1960). As far as restricted patients (that is, patients subject to a restriction order) were concerned, this power to transfer was exercisable only with the consent of the Home Secretary (section 65(3)(c) of the 1959 Act).
However, section 99 of the 1959 Act conferred a further power on the Secretary of State to direct transfer from a special hospital without being satisfied that the above-mentioned arrangements had been made.
28. In practice, according to two reports (interim report of 1974 of the Committee on Mentally Abnormal Offenders under the Chairmanship of Lord Butler and the special hospitals research report no. 16 of 1980 by Susan Dell, funded by the Department of Health and Social Security), special hospitals have for some years been experiencing increasing difficulties in transferring to ordinary psychiatric hospitals patients no longer considered to be dangerous. The main reasons given by ordinary hospitals for not taking such patients on transfer were lack of room, the patient’s characteristics, nursing-staff refusal and lack of suitable facilities, in particular lack of a secure unit or closed ward.
29. Periodic review of a restricted patient’s case may be made by a Mental Health Review Tribunal, which at the material time had the function of advising the Home Secretary on the suitability of further detention and treatment (section 66(6) and (7) of the 1959 Act - see, for further details, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 8, paras. 13-14). The legal position and authority of Mental Health Review Tribunals have been substantially altered by the 1983 Act, the relevant sections of which came into force on 30 September 1983. In particular, by virtue of section 73 of the 1983 Act, Mental Health Review Tribunals now have the power in appropriate circumstances to direct the absolute or conditional discharge of restricted patients.
30. Under the English law of torts, that is private civil wrongs, "the breach of a statute may give rise to an action, commonly spoken of as an action for breach of statutory duty" (Clerk and Lindsell on Torts, 15th edition, 1982, para. 1/99, p. 59). However, this is only so if the statute created in the individual concerned an interest which was intended by Parliament to be protected by an action in tort; and one has to look at the statute in question to determine the types of conduct (whether intentional, negligent or accidental) in respect of which the interest of the individual is to be protected.
The entitlement of patients confined under the 1959 Act to bring civil proceedings in connection with their detention was subject to the conditions and immunity laid down in section 141 (see paragraph 17 above).
This provision has been replaced by section 139 of the 1983 Act, which section came into force on 30 September 1983, that is, subsequent to the particular facts of the present case. As from this date, the position has been that proceedings against the Secretary of State for Social Services or against Health Authorities are excluded from the protection from suit afforded by the section. In other cases, the requirement that a person seeking leave to bring civil proceedings should have to satisfy the judge of there being "substantial ground" for the allegation of bad faith or negligence has been removed and what remains is the sole requirement that leave should be sought.
NON_VIOLATED_ARTICLES: 5
6
NON_VIOLATED_PARAGRAPHS: 5-1
5-4
6-1


ITEMID: 001-67139
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: AMARA v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mohamed Amara, is a Moroccan national, who was born in 1961 and lives in the Netherlands. He was represented before the Court by Mrs E. Zwart, a lawyer practising in Beverwijk.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 January 1993, following proceedings held in absentia, the Alkmaar Regional Court (arrondissementsrechtbank) convicted a person, calling himself Mohammed Ohra, of a robbery committed on 12 November 1992, and sentenced him to eight months' imprisonment less the time spent in pre-trial detention.
At an unspecified date the applicant started a relationship with Ms Boumlal, who holds both Netherlands and Moroccan citizenship and who is the mother of Sfia Mimouni, who was born in 1988 from a previous relationship. The father of Sfia also holds both Netherlands and Moroccan citizenship.
On 21 May 1996, a daughter named Farah was born of the applicant's relationship with Ms Boumlal.
On 27 April 1998 the applicant, who until that moment had resided illegally in the Netherlands, applied for a residence permit for the purpose of “staying with his Netherlands partner, Ms J. Boumlal”. When, in this connection, the applicant was asked to sign a declaration stating that he had never had any dealings with the Netherlands police or the Netherlands criminal justice authorities (antecedentenverklaring), he stated that he had served a prison sentence in the past, but under a false identity.
Subsequent verifications disclosed that the applicant had been residing illegally in the Netherlands since 29 October 1992 and that, in his various contacts with the police, he had not given his true identity and/or had failed to cooperate in establishing his identity. The applicant was in fact known to the Netherlands authorities under seven different identities and, under one of them, namely Mohammed Ohra, he had been convicted of robbery and sentenced to eight months' imprisonment on 26 January 1993.
On 2 July 1998, the immigration authorities informed the applicant of their intention to reject his request on grounds of his conviction in 1993 and illegal residency in the Netherlands.
On 21 October 1998, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's request for a residence permit. The Deputy Minister noted that, according to the relevant immigration policy rules, a request for a residence permit for the purpose of staying with a Netherlands partner could be granted if the alien concerned did not constitute a danger to public peace, public order or national security. Accordingly, admission could be refused on grounds of a criminal conviction for an offence entailing the imposition of an unconditional lengthy prison sentence. As the applicant had been convicted of a criminal offence and sentenced to imprisonment in 1993, his request for a residence permit could be rejected. The Deputy Minister further held that this decision did not constitute an interference with the applicant's family life with Ms Boumlal, as it did not deprive him of any residence title. The Deputy Minister lastly considered that no special facts or circumstances existed which could give rise to any positive obligation upon the Netherlands authorities under Article 8 to grant the applicant's request for a residence permit, or which showed that there was an obstacle to the exercise of his family life outside of the Netherlands. On 10 November 1998, the applicant filed an objection (bezwaar) against this decision.
On 12 January 1999 the applicant and Ms Boumlal married and, on 10 February 1999, the applicant recognised his daughter Farah.
On 17 March 1999, the applicant was given the opportunity to make oral comments on his application for a residence permit before an official commission (ambtelijke commissie). On this occasion, he stated inter alia that he had resided in the Netherlands since 1991, that in 1992 he had been arrested, detained and released after 27 days, and that owing to his then poor knowledge of Dutch he had not understood what had then happened to him. He further stated that he had never been convicted or appeared before a court, and that until recently he had been unaware of his conviction in 1993. He further stated that Ms Boumlal was expecting their second child, that she was receiving social security benefits on the grounds of an 80-100% incapacity for work, and that she did not wish to go to Morocco. Ms Boumlal, who attended this hearing, stated that since 1992 the applicant had had no dealings with the Netherlands police.
On 29 April 1999, the Deputy Minister of Justice rejected the applicant's objection of 10 November 1998 on the basis of the legal rules applicable to aliens seeking admission to the Netherlands to stay with a Netherlands non-marital partner. The Deputy Minister considered at the outset that, on grounds of the prison sentence imposed in 1993, the applicant could be declared an undesirable alien (ongewenst vreemdeling) under Article 21 of the Aliens Act (Vreemdelingenwet). This had not been done at the material time, because the Deputy Minister had been unaware of the fact that the applicant was illegally residing in the Netherlands. In view of the time that had elapsed since the applicant's conviction, the Deputy Minister decided, after balancing all the interests involved, not to declare the applicant an undesirable alien. This decision did not, however, imply that the Deputy Minister considered that the applicant no longer posed a danger to public order. The Deputy Minister further considered that, in the relevant immigration rules, the balancing of public order interests and the interests of family reunification/formation had already been made in abstracto, in that a residence permit could be refused to persons, like the applicant, who had been convicted of a serious offence for which they had been sentenced to an unconditional lengthy term of imprisonment. The Deputy Minister found that the applicant's personal interests did not outweigh those of public order. On this point, the Deputy Minister took into account that the applicant had been illegally residing in the Netherlands when he developed his family life with Ms Boumlal and, later, with their daughter Farah. The fact that the applicant had not committed any criminal offence since 1992 and has responsibility towards his family did not, according to the Deputy Minister, create an obligation to grant him a residence permit.
On 6 October 1999, a second child named Nora was born to the applicant and Ms Boumlal.
The applicant's subsequent appeal to the Regional Court of The Hague was accepted on 7 February 2000. It held that the Deputy Minister had incorrectly determined the applicant's request on the basis of the immigration rules for foreign non-martial partners of Netherlands nationals and that, for this reason alone, the impugned decision should be quashed as the applicant was married to a Netherlands national.
It did, however, reject the applicant's argument that the Deputy Minister had incorrectly found that the applicant had been convicted of a serious offence for which he had been sentenced to an unconditional lengthy prison sentence, within the meaning of the relevant immigration policy rules. It further considered that, although the Deputy Minister had taken this into account in the decision not to declare the applicant an undesirable alien, the Deputy Minister had failed to take into consideration, in balancing the Netherlands public order interests against the applicant's personal interests, the time that had elapsed since 1992, and the fact that the applicant had not committed any other offences since then. As the immigration policy rules stipulated that a residence permit “could” be rejected on grounds of a criminal conviction, these elements should be taken into account. It did, however, add that, in balancing the interests involved, the Deputy Minister could also take into consideration the fact that, owing to the applicant's use of aliases and his hiding from the authorities, the prison sentence imposed in 1993 had not been executed. It could thus be held against the applicant. The court therefore quashed the decision of 29 April 1999 and ordered the Deputy Minister to take a new decision on the applicant's objection.
On 5 April 2000, the Deputy Minister took a fresh negative decision on the basis of the immigration rules for alien spouses of Netherlands nationals. The Deputy Minister noted that, pursuant to Chapter B1/1.2.5 of the 1994 Aliens Act Implementation Guidelines (Vreemdelingencirculaire), the admission of an alien spouse of a Netherlands national can be refused in case of a conviction of a serious offence for which an unconditional lengthy prison sentence has been imposed and that, in its decision of 7 February 2000, the Regional Court had found that the applicant's conviction and sentence in 1993 qualified as such. The Deputy Minister further observed that, because of this sentence, the applicant could be declared an undesirable alien under Article 21 of the Aliens Act. This had not been done at the material time, as the Deputy Minister had been unaware of the applicant's illegal residence in the Netherlands. Given the time that had elapsed since the applicant's conviction, the Deputy Minister decided, after balancing all the interests involved, not to declare the applicant an undesirable alien. This decision did, however, not imply that the Deputy Minister considered that the applicant no longer posed a danger to public order. In this context, the Deputy Minister pointed out that the measure of declaring a person an undesirable alien entailed more serious consequences than a decision to refuse admission on grounds of posing a danger to public order. In the former case, the undesirable alien is not allowed to reside in or enter the Netherlands for a period of ten years, even for short (family) visits. The applicant was thus not subject to that restriction.
As to the balancing of the interests involved, as required in the context of Chapter B1/1.2.5 of the 1994 Aliens Act Implementation Guidelines, the Deputy Minister considered that the offence of which the applicant had been convicted had been committed a considerable time ago, that he had not reoffended since 1992, that in the meantime he had started a relationship with Ms Boumlal in the Netherlands out of which a child had been born in 1996 which had been recognised by the applicant in 1999, that the applicant and Ms Boumlal had married in 1999, and that the applicant had an interest in exercising his family life with his spouse and their child. The Deputy Minister did not, however, find that on the basis of these interests the applicant should be granted a residence permit. In the establishment of the rules governing the immigration of foreign spouses of Netherlands nationals, the public order aspects were already balanced in abstracto against the interests of family reunification/formation, whereas in the particular circumstances of the instant case, the applicant had been convicted of a serious offence for which he had been sentenced to a lengthy term of imprisonment, and this offence, which seriously shook the legal order, was such that it could inflict serious emotional harm to the victims thereof. Furthermore, the applicant had not served this sentence, apparently because he had used various aliases and had hidden from the authorities, which also had the result that no decision had been taken to declare him an undesirable alien. As to the applicant's interests in exercising his family life in the Netherlands, the Deputy Minister considered that, not having been declared an undesirable alien, the applicant could make short visits to his family in the Netherlands and that therefore a negative decision on his request for a residence permit did not render the exercise of his family life entirely impossible. In addition, it had not been shown that his spouse could not be expected to follow him to Morocco as she is of Moroccan origin and speaks good Arabic. This was not altered by the fact that Ms Boumlal and Farah are Netherlands nationals, as it had not been argued and it had not appeared that they would not be admitted to Morocco. As to the argument that Farah had been born and raised in the Netherlands, the Deputy Minister held that she was very young and that it had not been established that she was so rooted in Netherlands society that she could not be expected to follow the applicant to Morocco.
In so far as the applicant relied on Article 8 of the Convention, the Deputy Minister held that a negative decision on the applicant's request did not constitute an interference with his rights under this provision as it did not deprive him of any residence permit which had previously enabled him to exercise family life in the Netherlands. The Deputy Minister further did not find that the Netherlands authorities were under a positive obligation under Article 8 to grant the applicant's request. On this point, the Deputy Minister took into account that the family life on which reliance was placed had developed while the applicant was illegally residing in the Netherlands, and that no objective obstacles had arisen which prevented the exercise of this family life in Morocco. In this respect the Deputy Minister again relied on the arguments outlined in the preceding paragraph, regarding the possibility of the applicant's wife and child to follow him to Morocco and the public danger which the applicant posed to Netherlands public order. On the basis of these considerations the Deputy Minister concluded that the Netherlands general interest in pursuing a restrictive immigration policy outweighed the interests of the applicant and his family in exercising their family life in the Netherlands.
On 25 April 2000 the applicant filed an appeal with the Regional Court of The Hague.
In its judgment of 7 September 2001, the Regional Court rejected the applicant's appeal. In so far as the applicant relied on Article 8 of the Convention, the Regional Court held:
“It is not disputed that there is family life within the meaning of Article 8 of the Convention between the applicant, his spouse and the children. It must be put first that their right to respect for their family life does not entail that [the Netherlands authorities] are thus obliged to admit [the applicant]. It is important in this connection that, according to the constant case-law of the European Court of Human Rights, the point of departure is that Article 8 of the Convention does not contain an obligation for the State to respect an alien's choice of domicile or to render possible family formation or family reunion on its territory by allowing immigration. As [the applicant] has never been allowed to reside in the Netherlands, no issue of an interference with the right to respect for family life within the meaning of Article 8 arises in this case. Whether, in the present case, respect for family life nevertheless gives rise to an obligation for [the Netherlands authorities] to allow [the applicant] to reside [in the Netherlands] must be determined on the basis of a reasonable balance that must be struck between the interests of the individual and the interests of the community as a whole. The Regional Court is of the opinion that [the Deputy Minister] could adopt the position that the interests of the Netherlands State, which lies in maintaining public order and a restrictive admission policy, prevails over the interest of [the applicant] in being admitted in order to exercise in the Netherlands family life with his spouse and child. In this finding it has been taken into account that no objective obstacle to the exercise of family life in Morocco has appeared.”
The admission, residence and expulsion of aliens were regulated at the material time by the 1965 Aliens Act and the 1994 Aliens Act Implementation Guidelines; a body of policy directives drawn up and published by the Ministry of Justice.
In general, the Minister of Justice determined requests lodged by aliens for residence in the Netherlands under Article 11 of the Aliens Act. The Minister could refuse entry and residence on general interest grounds (gronden aan het algemeen belang ontleend).
In view of the situation in the Netherlands as regards population size and employment, Government immigration policy – as defined in the 1994 Aliens Act Implementation Guidelines – was aimed at restricting the number of aliens admitted to the Netherlands. In general, an application for a residence permit in the Netherlands was granted only on the basis of treaty obligations, if the individual's presence would serve an essential national interest or if there were compelling reasons of a humanitarian nature.
Under Article 21 of the Aliens Act, an alien can be declared undesirable by the Minister of Justice when he or she has been convicted of an offence punishable by a prison sentence of three years or more. A decision declaring a person an undesirable alien shall – upon a request thereto from the person concerned – be lifted after ten years' residency abroad where the decision declaring this person an undesirable alien was been taken on grounds of a conviction for serious violent crimes or drug dealing. This period is five years where the decision was based on a conviction for other crimes.
The offence of robbery, as defined in Article 312 of the Criminal Code (Wetboek van Strafrecht), attracts a prison sentence not exceeding nine years' imprisonment or a heavy fine.
According to the Moroccan Code of Nationality of 6 September 1958, a child whose father is a Moroccan national automatically acquires Moroccan citizenship at birth.


ITEMID: 001-88562
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF K.T. v. NORWAY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1971 and lives in Stavanger.
7. The applicant was married to Mrs J.V. Together they had two boys born in 1994 and 1996. He receives a disability pension on account of Attention Deficit Hyperactivity Disorder (ADHD). He is active as an instructor in ice hockey and football.
8. In July 2001, the applicant's wife moved out of their home and went to live in Finland. The children have since lived with the applicant. Shortly after her departure, Mrs J.V. sought to obtain an interlocutory injunction granting her the sole responsibility for the daily care of the children, arguing that the applicant had physically abused her and had an abusive consumption of medication.
9. The applicant has been taking medication for ADHD and for an earlier back injury.
10. Both the Stavanger City Court (byrett) and Gulating High Court (lagmannsrett) rejected her request. Subsequently the applicant and Mrs J.V. concluded a judicial settlement agreement according to which he was to assume the daily care.
11. Concurrently with the above, Mrs J.V. reported the applicant to the police alleging that he had assaulted and threatened her. The police granted a request for an injunction prohibiting the applicant from visiting her or calling her by telephone but, after having heard the applicant, they dismissed all her complaints and lifted the prohibition.
12. In addition, Mrs J.V. reported her concerns (bekymringsmelding) to the local child care authorities, alleging that the applicant was abusing intoxicating substances and that the children were at risk of violence. The child welfare services (Barneverntjenesten) at the Hillevåg District Office (helse- og sosialdistrikt) opened an investigation (hereinafter referred to as “the first investigation”) under section 4-3 of the Child Welfare Services Act 1992 (hereinafter referred to as “the 1992 Act”), in order to verify whether there was any ground for taking child care measures under the 1992 Act (notably under section 4-12 which sets out the grounds for compulsory taking into care of a child, such as serious deficiencies in the child's daily care, ill-treatment or other serious abuse occurring in the home, likelihood of parents' inability to provide care causing serious damage to the child's health or development). As a result, from 22 August 2001 until the end of October 2001, the authorities carried out 10 unannounced visits to the applicant's home.
13. The applicant felt that the Hillevåg District Office held preconceived views against him, due to the number of visits over a period of two months, inter alia in order to reveal high consumption of medicines, and that confidential information had been imparted to Mrs J.V. in this way. After exchanges between his lawyer and the Hillevåg District Office, the matter was transferred to the child welfare services at the Hinna District Office, which had their first conversation with the applicant on 7 November 2001. He was reticent to talk to begin with but, after being told that his ability to shield the children against the parental conflict was of great relevance, at a meeting on 12 December 2001 he provided such information and also produced written statements by his doctor on his consumption of medicines and the possibility of reducing it.
14. The first investigation was discontinued on 17 December 2001.
15. On 25 December 2001 followed a renewed call of concern to the child welfare services (Barnevernvakten) in Stavanger. The boyfriend of J.V.'s sister had called to inform that J.V. had perceived the applicant as being drugged when speaking to him on the phone that day. Immediately, on the same day, the child welfare services carried out an unannounced visit to the applicant's home and left after 10 minutes, having found no evidence of intoxication.
16. In a report of 10 January 2002 by the Hinna District Office concerning the first investigation, it was noted inter alia that the applicant's doctor considered his consumption of medication too high and that it was desirable to reduce it, while the applicant, following his lawyer's advice, was unwilling to come forward with information on the subject. No instances of intoxication had been found. The report concluded that the children did not live in a situation that was covered by any of the grounds for compulsory taking into public care under section 4-12 of the 1992 Act, although the boys' care situation had been made insecure and unpredictable by the parents' conflict. The report also contained an assessment of the conduct of the mother, who appeared very assertive and was using inter alia the child welfare services in her “warfare” against the applicant, to the boys' detriment.
17. On 28 February 2002, after a new report of concern, this time by a named third party, Mr R, who was a police officer, the child welfare services at Hillevåg opened a new investigation (hereinafter referred to as “the second investigation”). The source referred to an incident which he had observed while off duty near an ice hockey arena on 16 February 2002, when the applicant allegedly had difficulty standing on his feet, due to intoxication. A trainer had held him under his arm and had led him out. As the applicant wished to drive home his car keys had been taken from him. The applicant's mother had then come to collect him. Mr R worked at the local police station and as he had returned to work he had found a message stating that somebody had called to report that the applicant had driven his children by car while in a state of intoxication. Mr R had the impression that the applicant often had turned up at the sports hall in a visibly intoxicated state.
18. Three other sources, two of which were anonymous, had reported respectively on 4, 14 and 25 March 2002 incidents of intoxication and, one of them, that the applicant was violent and threatening and mentioned rumours about drugs abuse.
19. The anonymous report of 25 March 2002 recounted an incident when the applicant had been so intoxicated that he did not manage to pass the sliding door in the sports hall and that, when his oldest son assisted him through the door, the applicant hit after him. Some adults in the hall had commented that this was not the first time. The managers of the sports club had called the applicant's mother who came to collect the children. The source was worried about the children's situation.
20. The report of 4 March 2002 had been submitted by another named third party, Mr O, recounting that some time before Christmas his son and the latter's mother had gone to the applicant's home to fetch some money. When they arrived the applicant had fallen over due to intoxication. They had then brought the applicant's eldest son with them to the cinema. Since the applicant was not capable of fetching the youngest son in the kindergarten, they had called the applicant's mother and informed her. When Mr O. heard about this incident he was worried for the applicant's children.
21. On 21 March 2002 the child welfare authorities communicated to the applicant through his lawyer two of the above reports of concern, namely those of 28 February and 14 March 2002, with an invitation to the applicant for a meeting to discuss the allegations. In response to the above, the applicant's lawyer pointed out that the reports of concern were of the same type as those that had prompted the investigation which had been opened in August 2001 and had been concluded. He explained to the authorities that the applicant had not been under the influence of drugs but had fainted in a state of malaise; he had not had breakfast that day and had been under duress because of the proceedings against him.
22. According to the applicant, who refused his cooperation in the investigation, the allegations against him must have originated from persons within his ex-wife's entourage and were part of her attempt to obtain the daily care of the children.
23. On 11 April 2002 the Hillevåg District Office, with reference to an investigation conducted under section 4-3 of the 1992 Act, addressed requests for information to several instances, stating that the Office had reason to fear that the applicant's children lived in a situation such as described in section 4-12 of the Act. The requests, which set out specific questions capable of shedding light on the children's situation, were addressed to the applicant's doctor, who was also the doctor of his two sons, the school of the eldest son, the kindergarten of the youngest son, and the police, who were reminded of their obligation under section 6-4(3) to disclose such information to the child welfare services. In addition, the applicant's mother was invited to the Office for an interview.
24. By a letter also dated 11 April 2002 (but posted on 16 April 2002) to the applicant's lawyer, the Hillevåg District Office, enclosing copies of the above mentioned requests, informed him of the commencement of the second investigation. It referred to the Hinna District Office's report of 10 January 2002 stating that the extent of the applicant's use of tablets was unclear and that he, on the advice of his lawyer, had refused to comment. It had been the Office's intention to inform about these requests at a meeting on 4 April 2002, but since the applicant and his lawyer had objected to meet, they had been informed in writing. The Office added that a meeting with the applicant was scheduled for 14 May 2002, by which date they expected to have received the information requested from the above instances.
25. The Hillevåg District Office received information from the doctor, the school, the kindergarten and the police. The applicant's mother declined to meet for an interview. His ex-wife gave an interview by telephone from Finland.
26. The investigation was concluded by a report from the child welfare services at the Hillevåg District, dated 18 July 2002, which stated that they were worried that the applicant might abuse intoxicating substances (“rusmisbruk”), were unsure as to how much his ADHD diagnosis affected his ability to assume care and were uncertain as to his capability to provide the children with a sufficiently good up-bringing and about his potential for development. It recommended support measures under section 4-4 of the 1992 Act, to be evaluated by the end of a six month period. The measures included assistance such as designating a support home which the children could visit, providing the applicant with guidance on how to master his ADHD illness and problems related to drug taking, while at the same time assuming responsibility as a carer.
27. The applicant disputes this assessment, which had not been based on any further unannounced visits to his home, nor on information provided by his doctor, but on circumstantial evidence collected outside the home.
28. In the meantime, on 23 April 2002, the applicant had instituted proceedings before the Stavanger City Court to obtain a declaratory judgment (fastsettelsesdom), maintaining that there was no legal basis for conducting an investigation against him. He also requested an interlocutory injunction suspending the investigation pending judgment in the case. The City Court found that it was not possible to bring the matter before the courts and on 14 May 2002 dismissed (avviste) the case. It observed that the matter could not be viewed as a “decision” taken in the exercise of official duties in the sense of Article 435(1)(1) of the Code of Civil Procedure. As interpreted in light of the requirement of “legal interest” in Article 54, this term clearly referred to “individual decisions” (“enkeltvedtak”).
29. On an appeal by the applicant, the Gulating High Court, by 2 votes to 1, upheld the City Court's decision, by a judgment of 25 June 2002.
30. The majority considered that a decision taken by the child welfare services to carry out an investigation was not decisive for the applicant's rights and obligations and thus was not a “decision” in the sense of section 2 of the Public Administration Act. The applicant did not have a legal interest in the case under Article 54 of the Code of Civil Procedure. A decision to implement an investigation was only a step in the child welfare services' preparation of the case and thus was not decisive for his rights and obligations. Nor was there any conflict with Articles 6, 8 and 13 of the Convention.
31. The minority found that the appeal should be admitted for review (fremmet), considering that the applicant had a legal interest in having it judicially established whether the authorities had unjustifiably interfered with his right to respect for private life.
32. The applicant sought to appeal against the High Court's decision by challenging its application of the law. He maintained that from Articles 54 and 435 of the Code of Civil Procedure and Articles 6, 8 and 13 of the Convention, it followed that he should have a right to have the lawfulness of the investigation carried out by Stavanger Municipality reviewed by the City Court. He requested the Supreme Court to quash the High Court's decision of 25 June 2002 which upheld the City Court's dismissal of his case and to refer the case back to the City Court for examination.
33. On 21 August 2002 the Appeals Selection Committee of the Supreme Court decided that the case as a whole should be determined by the Supreme Court, under section 6 (2) of the Supreme Court Act 1926 (Høyesterettsloven - lov om forandring i lovgivningen om Høyesterett, 25 June 1926 no. 2). On the same date the President of the Supreme Court decided that it should hear the parties according to the rules applicable to ordinary appeals (ibid.).
34. In his letter to the applicant's lawyer of 3 September 2002, notifying the applicant of the above decisions, the Registrar of the Supreme Court pointed out that, having regard to the fact that the case concerned the application of the law, it was assumed not to be necessary (to commission a first instance court) to collect evidence for use by the Supreme Court. Should the parties nonetheless be of the view that this was necessary, their representatives should by 16 September 2002 give an account of what evidence should be collected and how. Within the same time limit the representatives of the parties were requested to confer about possible dates for oral hearing and shortly thereafter the Supreme Court would contact them to fix the hearing date. The rapporteur judge had estimated that the hearing would last for one day and the representatives of the parties were invited to express a view on the presumed duration of the hearing.
35. The child welfare services of Hillevåg submitted their concluding report of 18 July 2002. Otherwise the state of the evidence was the same as before the lower courts. Neither of the parties had responded to the above-mentioned communication of 3 September 2002 by asking that additional evidence to be collected for use by the Supreme Court.
36. After holding an oral hearing, at which both parties were legally represented, the Supreme Court in a decision of 4 March 2003 upheld, by four votes to one, the High Court's dismissal of the case.
On behalf of the majority, Mr Justice Mitsem gave the following reasons:
“(23) By way of introduction, I would point out that this case concerns a further interlocutory appeal, in which the jurisdiction of this court in principle is limited pursuant to Article 404 of the Code of Civil Procedure. In this instance, however, the Appeals Committee, and now the Supreme Court, has full jurisdiction, since the lawsuit filed by [the applicant] was summarily dismissed 'because the case is not a matter for the courts of law', see Article 404 (1)(1).
(24) I will first consider the suit in relation to the conditions for filing a lawsuit under traditional Norwegian procedural law, set out in Article 54 of the Code of Civil Procedure. Under this provision, it is a procedural condition that the suit shall concern 'a legal relationship or a right'. Furthermore, there must be a 'legal interest' in having the case decided, which inter alia means that the plaintiff must have an actual need for a judicial clarification.
(25) The investigation was opened on 28 February 2002 and had to be carried out as soon as possible and within three, alternatively six, months at the latest, see section 6-9 (1) of the [1992] Act. The final report is dated 18 July 2002 and was sent to [the applicant's] lawyer on the same day, with notification that the investigation was closed.
(26) [The applicant] has contested the fact that the final report represented the end of the investigation. Reference is made to the fact that the report culminated in a recommendation that family assistance be provided in the home, subject to evaluation within six months, so that there was still a 'case' in progress.
(27) To this I would comment that the purpose of an investigation, as expressed in section 4-3 of the [1992] Act, is to ascertain whether there is a basis for taking measures pursuant to the Act, and section 6-9 (2), first sentence, states that 'an investigation [pursuant to section 4-3] is regarded as completed when the child welfare services have made an administrative decision to implement measures or it has been decided to drop the case.' Thus such measures do not represent a continuation of the investigation, but its conclusion.
(28) Since the investigation has been closed, it is difficult to see how a judicial decision could have any legal significance for [the applicant]. It will not affect the implementation of the voluntary assistance measures recommended in the final report. Nor will it make any difference as regards the right to initiate a possible investigation in the future, based on new circumstances, or to decide to implement other measures pursuant to the Child Welfare Act, if warranted by circumstances.
(29) According to precedent it is undoubtedly the case that the requisite legal interest may cease to exist after legal proceedings have been instituted, with the consequence that the case must then be summarily dismissed. This may even occur - as in the present case – after judicial remedies have been pursued against a decision made in a court of second instance.
(30) I would add that a decision to carry out an investigation pursuant to section 4-3 of the [1992] Act is not an individual decision in the sense of the Public Administration Act. The same applies to the measures initiated in the course of the investigation, in this instance the obtaining of information pursuant to section 6-4 of the Child Welfare Act. As a general rule, it is not possible to make the lawfulness of such procedural steps the object of a separate lawsuit pursuant to Article 54 of the Code of Civil Procedure. However, any errors made at this stage could be significant in a lawsuit brought against any administrative decision that might be taken, and could possibly also form the basis for a claim for damages.
(31) [The applicant] has undoubtedly experienced the investigation as a strain, also because it was started shortly after the end of a prior investigation, and any judgment in his favour might seem like redress. However, this is not sufficient either to justify a legal interest, see Norsk Retstidende (Supreme Court Legal Reports - “Rt”)-2001-1123.
(32) Accordingly, I conclude that under traditional Norwegian procedural law [the applicant 's] suit had to be summarily dismissed.
(33) [The applicant] has claimed that a summary dismissal of the case will constitute a breach of the right of access to a court under Article 6 § 1 of the Convention in cases relating to 'civil rights'.
(34) I find it unnecessary to express a view on whether a demand that the child welfare services shall not make an investigation concerns a 'civil right' at all. In any event, the Convention accepts that national law must have some latitude to impose limitations on the right of access to a court. However, this is conditional on the limitations having a legitimate purpose, and a proportionality criterion also applies, which means that there must be a reasonable relationship between the purpose of the limitations and the effects they have. Finally, the limitations must not have such far-reaching consequences that the very essence of the right to a court is impaired, see the judgment of the European Court in the case of O v. the United Kingdom (1987), Series A No. 120, which states that the right to a court cannot be precluded in more substantial disputes.
(35) In the Rt-2001-1123, the first voting judge points out that 'sparing society – both courts of law and involved parties – lawsuits which, even if they were to succeed, would have no significance for the plaintiff's legal position', constitutes a legitimate aim, and that the proportionality requirement does not militate against maintaining the requirement of a 'legal interest' either. I concur with this. Nor can I see either that the limitation on the right to bring special lawsuits regarding the type of procedural decisions at issue in this case affects the essence of Article 6 § 1.
(36) In my opinion, therefore, the summary dismissal of [the applicant 's] suit does not represent a breach of Article 6 § 1.
(37) Accordingly, I shall move on to the question of whether the suit must be allowed in pursuance of Article 13 of the Convention ... . [The applicant] has asserted that the investigation was a breach of Article 8 of the Convention regarding the 'right to respect for his private and family life'. The parties are in agreement that in this case there existed no right to lodge an appeal to a superior administrative body, in connection with either the opening of the investigation or the specific steps that were subsequently taken. Thus any review provided for in Article 13 must be carried out by a court of law.
(38) The Convention was incorporated into Norwegian law by the Human Rights Act of 21 May 1999 No. 30 and, in the event of a conflict, takes precedence over provisions in other legislation, see section 3. This means, as stated on page 54, first column, of Proposition No. 3 to the Odelsting [the larger division of Parliaemnt] (1998-1999), that 'should a situation arise, after incorporation, where ... Article 13 ... requires the right to a judicial hearing whereas no corresponding right is provided by Article 54 of the Code of Civil Procedure, a judicial hearing must be allowed'.
(39) It is my understanding that the Municipality acknowledges that the grounds that would lead to a summary dismissal of [the applicant's] lawsuit pursuant to Article 54 of the Code of Civil Procedure are not tenable pursuant to Article 13 of the Convention. I concur. Pursuant to Article 13, the question of whether Article 8 has been breached must be regarded as a legal issue and be made the object of a declaratory suit [fastsettelssøksmål], even if the breach has ceased to exist. The doubt as regards the right to demand a judgment for non-compliance with a convention that existed in Rt-1994-1244, the so-called 'Women's Prison' case, must be regarded as having been dispelled by the adoption of the Human Rights Act and the rule of precedence set out in section 3 of the said Act.
(40) Nevertheless, under the case-law of the European Court, Article 13 only requires the availability of a remedy before a national authority if there is a reasonable ground for claiming that the Convention has been breached; there must be an arguable claim. This criterion is interpreted in accordance with Article 35 § 3 of the Convention, pursuant to which a complaint to the Strasbourg Court shall be summarily dismissed if it is 'manifestly ill-founded'; see inter alia paragraph 33 of the judgment in Powell and Rayner v. the United Kingdom (1990), Series A No. 172.
(41) Since the right to take legal action pursuant to Article 54 of the Code of Civil Procedure has been extended as a result of the incorporation of the European Convention on Human Rights, there is reason to consider whether the limitations developed in the Convention case-law should also apply in Norwegian law. The question will then be whether the courts shall summarily dismiss a suit which, after a preliminary substantive assessment, is considered to be clearly unfounded. In that event, it is not a question of limiting rights that are already protected under Norwegian law, but of the degree to which they are to be extended. Thus no conflict with Article 53 of the Convention can arise either, as [the applicant] has argued.
(42) In the continuation of the passage I cited above from Proposition No. 3 (1998-1999) to the Odelsting, it is stated that '[the Ministry] will however obtain an assessment ... of whether the Code of Civil Procedure should be amended so that it is clearly evident from the statute when lawsuits concerning alleged breaches of human rights conventions are to be allowed and when they are to be summarily dismissed', and that the question was to be considered by the committee that was to be appointed to examine the Code of Civil Procedure with a view to its revision. The report of the Code of Civil Procedure Committee recommends that no substantive 'screening system' should be introduced for lawsuits concerning possible breaches of the Convention; see Norges Offentlige Utredninger (Official Norwegian Report – “NOU” 2001:32 page 201. On the other hand, the Committee points out that lawsuits that clearly cannot succeed could be decided by means of a proposed simplified court hearing. No such possibility exists in our current procedural system, but it will, if it is introduced as proposed by the Committee, largely satisfy the considerations regarding the saving of time and costs in legal proceedings that have been advanced as the main arguments in favour of a screening system.
(43) How the issue should be resolved in the current dispute seems uncertain. I find it natural to take as the point of departure the fact that Article 54 of the Code of Civil Procedure establishes by statute – while at the same time limits – the right to bring any declaratory suit before a court. In the absence of statutory regulation of the issue, it is my view that the relaxation of the statutory conditions for bringing a lawsuit that follows from the Convention cannot in principle go beyond what would be a direct consequence of the Convention and its incorporation into Norwegian law. Admittedly, some might object that it is foreign to Norwegian law to assess the merits of the claim in order to decide whether the case shall be heard. But the question concerns a right to take legal action that until now has not had a clear basis in Norwegian law.
(44) I would add that filing a suit such as the one at hand, which has aimed at halting the investigations of the child welfare services, could entail considerable disadvantages. It will draw resources away from the real functions of the child welfare services, and might make its work more difficult in situations where it is necessary to react without undue delay. This reinforces the need for a simple, rapid assessment of whether there is any substance at all in the plaintiff's claim. This concern will be met by applying the Convention's own rule of summary dismissal if the claim is not arguable.
(45) The consequence of my view is that the question of summary dismissal will depend on whether the suit, based on Article 8 of the Convention, must be considered manifestly ill-founded.
(46) I would add, however, that I have not thereby concluded whether the threshold for summary dismissal should be as low as that applied by the European Court of Human Rights. As emphasized by Jørgen Aall in Tidsskrift for Rettsvitenskap (Journal of Jurisprudence) 1988, page 90, there are good reasons why national courts should follow a less stringent practice as regards summary dismissal. However, as will be shown below, the present case is in no way on the borderline in that respect.
(47) ...
(48) I find that the investigation constituted an interference with [the applicant's] right to respect for his private and family life under Article 8 § 1 of the Convention. On the other hand, however, I find it clear that it was an interference that was justified under the exception clause in Article 8 § 2.
(49) The decision to make an investigation is subject to a statutory condition - there must be 'reasonable cause to assume that circumstances prevail which may provide a basis for measures'; see section 4-3 of the [1992] Act. However, as stressed by the Municipality, this criterion is linked to a professional assessment by the child welfare services, and the threshold for initiating an investigation is meant to be low. In Proposition No. 44 (1991-1992) to the Odelsting, it is also emphasized that interests of privacy will often have to yield to the child's best interests; see pages 29 and 107.
(50) The investigation in dispute was opened on 28 February 2002. One and a half months earlier, a first investigation had been completed, in which it had been concluded that the children 'are living in an insecure and unpredictable care situation'. When a new child concern report was received on 28 February 2002, under section 4-2 of the [1992] Act the child welfare services had to consider whether it should be followed up by investigations pursuant to section 4-3.
(51) [The applicant] has maintained with vigour that this child concern report – which had given cause to suspect that he was intoxicated when he was with the children and misused pills, which was also the basis for the previous investigation – was unwarranted. I offer no opinion on this question, but cannot see it otherwise than that the child welfare services had to carry out an investigation pursuant to section 4-3, with a view to obtaining confirmation or disproving that there was cause for concern in regard to the children's care situation. The fact that there was an objective basis for initiating investigations was otherwise corroborated by new child concern reports and information from the school and day care centre indicating that the children had special care needs which it was doubtful that [the applicant] could fulfil. Finally, this was also confirmed by the assistance measures recommended by the child welfare services in their final report.
(52) In relation to Article 8 of the Convention it is particularly important to consider the specific steps that were taken during the investigation. In this case, it was a question of obtaining information pursuant to section 6-4 (2) and (3) and section 4-12 of the [1992] Act.
(53) I find it clear that it cannot be claimed that any breach of the [the 1992] Act or the Convention had occurred. Admittedly, in its final report, the child welfare services found no basis for making an administrative decision under section 4-12. However, in order to collect information it was sufficient that there was a substantiated suspicion that the children were in a situation such as described in the said provision. I would add that [the applicant's] unwillingness to cooperate with the child welfare services was also unlikely to calm their basically justified uneasiness about the children's situation.
(54) Nor is there any ground to claim that the investigation did not pursue legitimate purposes or was unnecessary. In this respect it suffices to refer to the European Commission of Human Right's decision of inadmissiblity of 22 May 1995 in the case of Andersson v. Sweden, in which precisely the children's best interest were emphasised. The Commission stressed that the obtaining of information, as in the present case, was proportionate to the legitimate purpose and an interference of limited extent, since the public administration was also subject to a duty of confidentiality. Finally, it was also emphasized as a factor that the person whom the interference concerned was kept informed as to the information that was disclosed, as was done in [the applicant's] case.
(55) Accordingly, it is my view that point 1 of the operative part of the High Court's decision must be upheld.
(56) The interlocutory appeal has not succeeded. However, the case has raised hitherto unsettled questions concerning the relationship between traditional Norwegian law and the European Convention on Human Rights. In my view, the circumstances must be said to be so special that [the applicant] should not be ordered to pay costs either before the High Court or the Supreme Court. The Supreme Court hearing has also been conducted in accordance with the rules for appeals, with the consequences that this has for the amount of the costs. Otherwise as regards the Supreme Court, the legal representatives were appointed at public expense ....
37. The dissenting member, Mr Justice Tjomsland, stated:
“(58) It is my opinion that the lawsuit must be admitted to the City Court.
(59) I agree with the first voting judge that the suit would have had to be summarily dismissed in accordance with 'traditional Norwegian procedural law'. I also agree that such a dismissal would not constitute a breach of the right of access to a court guaranteed by Article 6 § 1of the Convention.
(60) The first voting judge expresses the opinion that, as a consequence of incorporation of the Convention into Norwegian law by the Human Rights Act of 21 May 1999 No. 30, a claim may be made for a declaratory judgment asserting that there has been a breach of the Convention. I concur in this opinion. The view taken by the majority as regards this question in Rt-1994-1244, the 'Women's Prison' case, cannot be maintained following the adoption of the Human Rights Act. Given the relatively limited requirements that can now be made in this respect for this type of suit, I also find that [the applicant] has a sufficient actual interest in the suit; see NOU 2001:32 Rett på sak (Straight to the Point), pp. 201-202.
(61) On the other hand, I do not agree with the first voting judge that a suit regarded as manifestly unfounded must be summarily dismissed. Once it has been accepted that a suit may be brought with a claim for a declaratory judgment asserting a breach of the Convention, the way in which such a claim should be dealt with depends, in my view, on Norwegian rules of procedure. It is therefore not decisive that the screening system, which according to the first voting judge should be applied, will not be contrary to the Convention. Under Norwegian procedural law, the assessment of whether the conditions for filing suit have been satisfied is based on the plaintiff's submissions with regard to the claim he or she is putting forward. If the claim – in the event manifestly ill-founded – cannot succeed, judgment must be given for the respondent after a hearing on the merits of the claim. In my view, it would be contrary to this principle to procedurally dismiss on a non-statutory basis manifestly unfounded lawsuits regarding breaches of the Convention after a summary examination on the merits, cf. the majority vote in Rt-1994-1244, NOU 2001:32 Rett på sak, p. 201, and Schei: Tvistemålsloven med kommentarer (The Code of Civil Procedure, with commentary), 2nd edition, p. 270.
(62) I cannot see that the provision in Article 35 § 3 of the Convention prescribing that a complaint to the European Court of Human Rights shall be summarily dismissed after a summary examination [...] if it is manifestly ill-founded can be transposed, on a non-statutory basis, as a procedural condition to lawsuits concerning breaches of the Convention that are brought before Norwegian courts. I would also note that the considerations that serve as grounds for the various dismissal provisions in Article 35 of the Convention may appear in a different light as regards lawsuits brought before national courts. A rule on summary dismissal of the kind at issue in this instance will, in my view, give rise to several procedural problems, concerning notably the legal force of the orders. My objections to such an arrangement also hold good if a rule of summary dismissal departing from Article 35 § 3 were to apply on a non-statutory basis, for instance if one were to apply a less stringent practice of summary dismissal than that of the European Court or if the scope of the summary dismissal rule were to be limited in another discretionary manner.
(63) I agree with the first voting judge that filing a suit like the one at hand could give rise to significant disadvantages for the work of the child welfare services. However, such suits are – in my view – a consequence of the fact that it has now been made permissible to file suit complaining of a Convention breach irrespective of whether a judgment of this nature would entail specific legal effects for the plaintiff. In my view, an attempt must be made to reduce the problems that arise in this connection by adopting rules regarding simplified judicial hearings as has been proposed by the Civil Procedure Committee. In this connection, I wish to comment that the purpose of the screening system in question here will in actual fact be to introduce, on a non-statutory basis, a simplified hearing on the merits of the claims covered by the arrangement.”
38. The Child Welfare Services Act 1992 (“the 1992 Act”) contained the following provisions which are relevant:
Section 4-2
“The child welfare services shall at the earliest opportunity, and within one week at the latest, examine reports it receives and assess whether the individual report shall give rise to investigations pursuant to section 4-3.”
Section 4-3
“If there is reasonable cause to assume that circumstances prevail which may provide a basis for measures pursuant to this chapter, the child welfare services shall investigate the matter at the earliest opportunity; see the time limits set out in section 6-9.
The investigation shall be carried out in such a way as to minimise the harm it causes anyone affected, and it shall not have a wider scope than justified by its purpose. Importance shall be attached to preventing the unnecessary spreading of information about the investigation.
The parents or the persons with whom the child is living may not object to an investigation as mentioned in the first sub-section involving visits in the home ...”
Section 6-4
“Information shall as far as possible be obtained in cooperation with the person whom the case concerns or in such a way that the person concerned is aware that the information is being obtained.
Notwithstanding the duty of secrecy, public authorities shall on their own initiative disclose information to the municipal child welfare services when there is reason to believe that a child is being mistreated at home or subjected to other serious deficiency of parental care (see sections 4-10, 4-11 and 4-12), or when a child has shown persistent, serious behavioural problems; see section 4-24. Organizations and private entities that perform tasks for the State, a county municipality or a municipality are considered on par with public authorities. Public authorities are also obligated to disclose such information when ordered to do so by agencies which are responsible for implementation of the Act.
Practitioners of professions pursuant to [various specified Acts] are also obligated to disclose information pursuant to the rules of the second paragraph.”
Section 6-7
“Anyone who performs service or work for a public administrative agency or institution pursuant to this act is subject to a duty of secrecy pursuant to sections 13 to 13E of the Public Administration Act. Contraventions are punishable pursuant to Article 121 of the Penal Code.
[...]
Information may only be disclosed to other public administrative agencies, see section 13B, subsections 5 and 6, of the Public Administration Act, when necessary to facilitate the function of the child welfare services or the institution, or to prevent material danger to life or serious harm to a person's health. ...”
39. Articles 53 and 54 of the Code of Civil Procedure, as in force at the material time (it was replaced by a new Code which entered into force on 1 January 2008), provided:
Article 53
“Until a claim matures, it may not be brought before the courts with a request for an executory judgment (fullbyrdelsesdom), except in the following circumstances:
1. If there is particular reason to fear that the respondent will escape fulfilling his or her obligations on time;
2. If it concerns a claim which is supplementary to a principal claim, such as interests running until payment, or compensation, which emerges from the disputed legal relationship;
3. If it concerns periodic payments, of which one instalment has matured and when future instalments do not depend on any service in return;
4. If the claim is conditional upon the non-fulfilment of another claim, in respect of which the claimant requests a judgment in the same case.
If the claim has not matured by the time of judgment, the judgment shall stipulate what condition should occur or what time-limit should run, before it is to be executed.”
Article 54
“If a plaintiff has a legal interest in it being established by a judgment that a legal relationship or a right exists or does not exist ... he can institute proceedings with a request for a declaratory judgment (fastsettelsesdom), even though an executory judgment may not yet be obtained.”
40. Section 6 (2) of the Supreme Court Act 1926 read:
“When it is desirable for special reasons, the Appeals Leave Committee of the Supreme Court may, in cases being examined by it, refer a question of law to the Supreme Court or decide that the case as a whole [saken i sin helhet] shall be decided by the Supreme Court. The Supreme Court will rule on the legal issue or on the case in the form of a decision. The court may decide that oral proceedings may be held in accordance with the rules that apply to ordinary appeals [ankesaker]. A decision to this effect may also be taken by the presiding judge before the case is examined by the Supreme Court.”
41. From Article 404 (1), item 1, of the former Code of Civil Procedure it followed that a decision by the High Court on an appeal against a dismissal of a case on grounds of lack of jurisdiction may form the subject of further appeal to the Supreme Court. The latter then has full jurisdiction to examine questions of law, fact and procedure (see Tore Schei, Tvistemålsloven med kommentarer (Code of Civil Procedure with Commentary), 1990, p, 361).
42. Pursuant to Article 374, the Supreme Court could not take oral evidence from witnesses directly, but the parties could make a request to the relevant district- or city court to hear witness evidence (bevisopptak). In such event, the statements of the parties and/or witnesses were recorded in extenso by the first instance judge. The records were included in the Supreme Court's case file and may be read out by the parties' representatives during the Supreme Court hearing, should they so wish, like other documentary evidence contained in the file.
43. The human rights of children and the standards to which all governments must aspire in realising these rights for all children, are set out in the Convention on the Rights of the Child. This instrument entered into force on 2 September 1990 and has been ratified by 193 countries, including Norway, which has also incorporated it together with the Convention into its domestic legal order (1999).
44. The Convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children's rights by setting standards in health care, education and legal, civil and social services.
45. States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a child who is separated from one or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (Article 9).
46. Article 19 reads:
“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
NON_VIOLATED_ARTICLES: 6
8
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68736
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF JANCIKOVA v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in born in 1961 and lives in Vienna. She is the owner of a plot of land in Vienna. At the time of the events she was building a house on her land.
9. On 16 October 1992 officers of the Regional Vienna Labour Office (Landesarbeitsamt) inspected the construction site and found that four persons of Czech nationality, who were carrying out plaster works, had no permit to work in Austria.
10. On 21 October 1992 the Labour Office submitted a report to the Vienna Municipal Office (Magistrat) alleging that the applicant had illegally employed four foreigners. Thereupon, the Municipal Office opened administrative criminal proceedings against the applicant under the Aliens' Employment Act (Ausländerbeschäftigungsgesetz) and invited her, by letter of 29 December 1992, to comment on the charge against her. As the applicant was out of town, this letter did not reach her prior to 20 January 1993, when the Municipal Office ordered the applicant to pay a fine in the amount of ATS 66,000 (EUR 4,796.41) for having illegally employed four foreigners contrary to the provisions of the Aliens' Employment Act. This order was served on the applicant on 4 February 1993. According to the applicant, this was the first time that she became aware that proceedings had been instituted against her.
11. On 11 February 1993 the applicant, assisted by counsel, filed a request for reinstatement into the first instance proceedings (Wiedereinsetzungsantrag) and lodged an appeal with the Independent Administrative Panel (Unabhängiger Verwaltungssenat, hereafter referred to as “IAP”) against the order of 20 January 1993.
12. On 19 February 1993 the Municipal Office rejected the request for reinstatement into the proceedings. The applicant appealed on 25 March 1993 to the IAP.
13. On 14 February 1995 the IAP summoned the parties to a hearing scheduled for 21 March 1995 and invited the applicant to comment on the charge. The applicant did so on 3 March 1995.
14. On 21 March 1995 the IAP dismissed her appeal concerning reinstatement. It found that the invitation to comment on the charge of 29 December 1992 had been served in accordance with the provisions of the Official Notifications Act (Zustellgesetz) and that therefore the Municipal Office's decision of 19 February 1993 to refuse reinstatement into the proceedings had been lawful. This decision was served on the applicant on 17 May 1995. The applicant's complaint of 21 June 1995 against the IAP's decision was rejected by the Administrative Court (Verwaltungsgerichtshof) on 7 September 1995.
15. On 21 March 1995 the IAP also examined the applicant's appeal of 11 February 1993 against the order of 20 January 1993 to pay the fine in the amount of ATS 66,000. Having deliberated, the IAP rejected the applicant's appeal the same day.
16. On 23 August 1996 the IAP finalised the written version of its decision on the applicant's appeal of 11 February 1993. It found that the applicant had concluded work contracts with foreigners which required a valid work permit under the Aliens' Employment Act. The decision was served on 29 November 1996.
17. On 19 December 1996 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof).
18. By a decision of 30 September 1997 the Constitutional Court refused to deal with the complaint for lack of prospects of success and transferred the case to the Administrative Court. This decision was served on 9 December 1997.
19. On 9 April 1998 the IAP commented on the applicant's complaint and, on 20 May 1998, the applicant submitted observations in reply.
20. On 13 September 1999 the Administrative Court dismissed the applicant's complaint. This decision was served on 30 September 1999.
21. Pursuant to Article 132 of the Federal Constitution, the Austrian law no application may be lodged with the Administrative Court against the administrative authorities' failure to decide (Säumnisbeschwerde) in administrative criminal proceedings. This provision was adopted in 1984 (BGBl. 296/1984). The legislative committee stated in its respective report (AB 345, XVI. GP), referring to the Code of Administrative Offences (Verwaltungsstrafgesetz), that the exclusion of this remedy was justified as the administrative authorities had to decide on appeals within a short time-limit. The provisions to which the legislative committee referred provide as follows:
22. Pursuant to Section 51 § 7 of the Code of Administrative Offences, administrative authorities have to decide on appeals within fifteen months and if they do not comply with this time-limit the proceedings have to be discontinued. This time-limit does not apply to proceedings, in which more than one party has a right to appeal. Periods during which proceedings before the Constitutional Court and the European Court of Justice are pending shall not be counted for the purpose of the fifteen months time-limit.
23. Pursuant to Section 31 §§ 1 and 2 of the Code of Administrative Offences, the prosecuting authority has to institute administrative criminal proceedings against a person suspected of having committed an administrative offence within six months or as regards specific offences - as the offence at issue - within one year after the perpetration of the offence.
24. Pursuant to Section 31 § 3 of the Code of Administrative Offences, the authorities may only sentence a person suspected of an administrative offence within a period of three years after the perpetration of the offence. Periods during which proceedings before the Constitutional Court, the Administrative Court and the European Court of Justice are pending shall not be counted for the purpose of the period of prescription.
25. In administrative criminal proceedings in which more than one party has the right to appeal, e.g. in proceedings where also the Labour Office has locus standi, legal protection against the authorities' failure to decide is only safeguarded by the limitation of the period of three years within which a penal order has to be issued. The public pronouncement of the decision is considered to be sufficient for complying with this time-limit.
26. Pursuant to Section 19 § 2 of the Code of Administrative Offences in connection with Sections 32 to 35 of the Code of Criminal Procedure (Strafprozessordnung), the administrative authorities have to consider an unreasonable length of the proceedings as mitigating circumstance.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110424
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: COSTACHE v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Mitică Costache, is a Romanian national of Roma ethnic origin, who was born in 25 June 1967 and lives in Slobozia. Since 1990 he has been involved in a long-term unregistered partnership with Ms C.C. The applicant is illiterate. He is represented before the Court by Mr Constantin Cojocariu, a lawyer practising in Iaşi. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu and subsequently by their Co-Agent, Ms Carmen Ciută, both of the Ministry of Foreign Affairs.
2. In an initial letter submitted to the Court on 16 August 2005 the applicant complained of his living conditions unsuitable to his state of health. He subsequently reiterated this complaint and alleged the authorities’ failure in the provision of adequate housing in two application forms submitted on 20 October 2006 and 31 July 2007 respectively. None of the application forms were signed by the applicant; however the latter was accompanied by a signed cover letter.
3. On 23 December 2005 the applicant was diagnosed with paralysis of the left side of the body caused by a stroke and on 28 July 2006 with chronic hepatitis and brain damage (sindrom cerebelos). Because of his medical condition, on 4 October 2006 the applicant was declared severely handicapped by the Commission for the evaluation of handicapped persons, functioning under the authority of the county council (“the commission”). Starting with 22 November 2006 he was offered a monthly pension of 158 Romanian lei (ROL). Since 2006, the applicant’s classification in the category of handicapped persons continued to be renewed each year until present.
4. On 13 September 2007 the applicant was also diagnosed with epilepsy and severe brain deficiency.
5. According to the report issued by the above-mentioned commission on 22 September 2010 , the applicant’s condition as a handicapped person was declared as less severe, as his health condition improved.
6. The applicant and his partner, C.C., left the parental village house and moved to the town of Slobozia in 2001, after the death of his father. Facing major difficulties in finding affordable accommodation, around the same date, the applicant allegedly started formulating requests for social housing at various authorities, verbally or in writing through the help of C.C.
7. According to the applicant, in the course of 2003 he moved together with his partner in a deserted horse stable belonging to the state which was unofficially allocated to them as social housing by the Slobozia municipality. The Government contested this allegation and submitted that the applicant and his partner started living in the stable of their own will during the year 2005.
8. Welfare investigations conducted yearly by the social services at the request of the Commission for the evaluation of handicapped persons between August 2005 and September 2007 stated that the applicant was living in the town of Slobozia together with C.C., in one room “inside a stable in conditions unsuitable for living in”. The social services inspectors found that the above-mentioned housing lacked running water, heating, a toilet or a bathroom as well as electricity.
9. On 24 November 2005 the Slobozia Local Council published a list of priorities for the allocation of social housing which included C.C. and her partner, supposedly the applicant.
10. In a letter of 20 March 2007 sent by the County Prefect in response to the applicant’s complaints concerning his housing situation, the prefect mentioned that the applicant was living in a stable provided as social housing by the Slobozia Town Hall and informed him that his requests for more appropriate social housing had been sent to that institution in order to be dealt with.
11. In the course of 2007 the Slobozia municipality finalised the rehabilitation of a building for the purposes of social housing. On 22 November 2007, C.C. together with the applicant, considered as a family member for the purposes of the tenancy contract, obtained an offer of a social tenancy and moved in a one-room apartment in the rehabilitated building.
Following the applicant’s relocation, the stable was demolished by the municipality.
12. Article 19 of the Emergency Ordinance no. 102/1999 on the protection of the handicapped persons provides as follows:
“(1) With the purpose of ensuring the right to social security, protection of health and education, the adults with a handicap have the following rights:
(...)
p) priority for renting , building or buying a lodgement from the state;”
13. According to Article 41 and Annex 1 of the Law no. 114/1996 on housing, the minimum requirements for a social lodgement are the following: the existence of a space for resting, a space for preparing food, a bathroom and access to electricity, drinking water and sewage facilities.