ITEMID: 001-59156
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF COSTER v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of P1-1;No violation of P1-2;No violation of Art. 14
JUDGES: Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza
TEXT: 10. The applicants are gypsies by birth. As children, the applicants lived and travelled with their respective families in and around the area known as the Borough of Maidstone in Kent. From 1987, the Borough was a designated area pursuant to section 12 of the Caravan Sites Act 1968 (see paragraphs 43-48 below).
11. In 1982, the applicants married. When the second applicant became pregnant, the applicants decided to search for a permanent site on which to site their caravan. There remained few stopping places upon which they could lawfully park their caravan whilst travelling in the area and they faced the threat of continual eviction. The applicants wished for their children to be brought up in a stable environment which would facilitate the continuity of their education. The applicants now have four children, Jody born in 1983, Tommy in 1984, Jessica in 1991 and Joshua in 1993.
12. The applicants stated that they were refused a place on any local authorised site. They camped outside one official site for 5-6 weeks hoping to be offered a plot. No place was offered and court proceedings were brought against them by the Borough to secure their eviction from the land. The Government stated that the Borough has no knowledge or record of any request by the applicants for a pitch in 1982.
13. With the imminent birth of their first child, the applicants moved into the caravan occupied by the first applicant’s mother on a permitted gypsy site and sold their own caravan. The caravan was however small and conditions became intolerable. Having nowhere else to go, the applicants in or about 1983 reluctantly applied for permanent accommodation and accepted the offer of a council flat. They commenced a tenancy in a fourth floor flat on 16 January 1984. Though they were moved to a first floor flat after 10 months, they found the flats totally unsuitable and alien to their traditional gypsy lifestyle. On 18 April 1986, they requested a transfer to a house on the grounds of the second applicant’s health but were informed that there was a waiting list and that a move would be conditional on payment of outstanding rent. The applicants disputed that they owed any rent and suggested that the Borough has mistaken them for the tenants of a different flat, there being some confusion as to the addresses involved. In late 1987, the applicants requested a site on an official caravan site or more suitable accommodation but were told this was not possible. The Government stated that they did not wish to be placed on the waiting list.
14. In 1988, the applicants purchased land known as Summerfields in Headcorn, Kent and moved onto it, living in a caravan.
15. On 11 July 1988, the second applicant made a retrospective planning application for permission to station a caravan on their site. Permission was refused by the Borough on 13 October 1988.
16. On 23 September 1988, an enforcement notice was issued requiring discontinuance of the unauthorised use.
17. In July 1989, the applicants were convicted for failure to comply with the enforcement notice.
18. On 27 September 1989, a public enquiry was held by way of appeal against the refusal of planning permission. The appeal was dismissed. The Inspector accepted that the applicants were gypsies for whom conventional residence in permanent accommodation would lead to illness and problems of adjustment. They had therefore not lost their status as gypsies as a result of their residence in a flat. He found however that the development on a site, well outside built-up areas, was clearly visible and would constitute a significant intrusion into the attractive rural surroundings and seriously harm the character and appearance of the countryside contrary to the aims of the local development plans. The proximity of another established gypsy site a short distance along the same road was a further consideration for rejecting the application, since there would be a cumulative effect. Though there were hedges and trees providing partial screening, these would have less effect in the winter and the site was still a significant intrusion in the landscape. While he expressed his concern for the serious consequences of a refusal for the applicants and their two children, since they had nowhere to live for the foreseeable future apart perhaps from unauthorised camping sites, he concluded:
“It is all a matter of weighing opposing considerations, and although both national and local policies envisage circumstances where the special needs of gypsies can outweigh the general objective of protecting the countryside, my view is that, because of such factors as the quality of this countryside, they do not prevail here.”
19. The applicants made a further application for planning permission which was refused on 11 December 1989, seeking inter alia to argue that they had resited the caravan and provided more screening to minimise any visual impact on the landscape and that their site was less harmful than the two poorly screened sites nearby which were authorised by the Borough.
20. A public enquiry was held before a Planning Inspector on 26 March 1991. The Inspector refused their appeal on 24 April 1991 and the applicants were penalised in costs on the basis that it was identical to the previous application. The Inspector did not find the granting of permission for caravans for two gypsy families some 300-400 metres away along the same road could be regarded as a material difference.
“On the contrary, in my opinion three gypsy caravan sites within some 600 m of the length of Lenham Road would amount to an overconcentration of caravan sites in these rural surroundings.”
The Inspector went on:
“14. As to … alleged intentional homelessness, Counsel for the <Borough>, on instructions, assured the inquiry that the <applicants’> family would be offered short-term housing. This is the position the family have faced for a long time. <The applicants> conceded that the only action taken since the 1989 decision by or on behalf of the family to find another site or accommodation, was a telephone call … to the <Borough> in mid-December 1989. …
15. I have given sympathetic consideration to all of <the applicants> case. I accept that the family have a pressing local need for a caravan site. The provision of private sites should be encouraged. Kent County Council support the provision of private sites. So does Government policy. There should be a flexible attitude to such planning applications. As was said in a Parliamentary answer in 1987, well-run gypsy sites, once established, seldom give cause for serious complaints. ‘Designated’ authorities like Maidstone may still need to make extra provision in their area if the demand for gypsy accommodation increases. There are still gypsy families parked on unauthorised sites in the Maidstone area, including <the applicants>… No new gypsy sites have been opened in Maidstone since 1967.
16. In spite of <the applicants> planting and intended further planting, however, I find as a fact that the mobile home would remain intrusively visible from Lenham Road and Baker lane. The only way in which it could be made virtually invisible, …, would be to provide physical screening which would in itself be an intrusive feature in the countryside. From the point of view of passers-by, the visual impact of the mobile home is made especially serious because of this being a corner site, with two long road frontages through which the site can be seen by the public. Having regard to the quality of the rural landscape, I consider that this development seriously damages the appearance and character of the surroundings. As this land is between the two authorised sites, this development results in an incipient loose ribbon of suburban-type development strung out along Lenham Road. This conflicts with generally well-respected policies aimed at protecting the landscape and at limiting residential development mainly to towns and villages.
17. Whilst the position towards the eastern corner is an improvement on the previous siting in the northern corner, the mobile home still causes demonstrable harm to countryside interests of acknowledged importance. There is nowhere within the site at which a mobile home or caravan could be positioned without causing equally serious harm.
18. I have taken into account the extent to which this site could satisfy the site-selection criteria… Rather than introducing minimum conflict with planning policies, this development is in serious conflict with the Structure Plan policies … aimed as protecting the character of the open countryside from development not demonstrated to be necessary for agriculture etc. There is also serious conflict with Policy C15 of the draft Local Plan, aimed at ensuring that permitted gypsy sites should not be intrusive features in the countryside.”
21. On 12 September 1990, the applicants were convicted for breach of enforcement notices and ordered to pay GBP 275 each as a fine and contribute GBP 25 to the Borough’s costs.
22. In February 1990, the Government stated that the applicants made enquiries from the Borough about rehousing but no formal application was made until 21 May 1990. On 23 July 1990, the applicants were formally informed by the Borough that they were considered as intentionally homeless since they had terminated their council tenancy to move onto land not permitted for residential use contrary to the advice of the Housing and Planning Departments.
23. In 1991, the applicants enquired about alternative accommodation on a private site but were informed that they were excluded due to the size of their family.
24. On 6 March 1992, the applicants stated that they were told that there was a waiting list for places on official sites but that since they were intentionally homeless they could not put their names on it for 2 years. According to the Government, in March 1992, the applicants applied to the Borough for housing on the grounds of homelessness and that contrary to the policy of refusing registration within two years after a finding of intentional homelessness the Borough agreed to re-register them as homeless on condition that they paid their arrears of rent for the council tenancy. The applicants did not pay the arrears.
25. The records of the Borough noted that, at a meeting on 26 June 1992, its officials repeated offers of temporary accommodation to give the applicants time to find permanent accommodation. The applicants were recorded as stating that they would not accept a place on an official site and that they would only accept temporary accommodation in their own caravan, which the Borough could not provide. The applicants state that they have no recollection of making the former statement.
26. A third prosecution resulted in conviction and sentence was deferred to enable the applicants to move. On 24 July 1992, a fine of GBP 350 was imposed on each applicant.
27. The Borough took the decision to seek an injunction in the High Court restraining the applicants from stationing their caravan on their land and gave notice to the applicants. On 16 October 1992, the applicants left their land and travelled to Whitstable, Kent close to where some of the second applicant’s family had stationed their caravans. On the site there was no sanitation or electricity and there was an infestation of rats. The applicants contacted the Borough’s housing officer in the hope that he could offer more suitable alternative accommodation but he could not. He suggested that they apply for Housing Association accommodation which they did but were told that nothing would be available for six months. The applicants heard nothing after that. The Government stated that the applicants’ names were placed on the waiting list at the end of 1992 but they removed their names from that list in January 1993. The applicants disputed that they removed their names.
28. On 17 December 1992, the applicants returned to their land, where the children could resume their education at their previous school.
29. The Borough commenced its proceedings for an injunction by summons dated 22 December 1993.
30. On 24 February 1994, the second applicant was convicted and fined for a continued breach of the enforcement notices.
31. The applicants applied for judicial review to quash the injunction proceedings on the basis that the decision to pursue the injunction against them was unreasonable. Leave was refused by the High Court. On 6 May 1994, the Court of Appeal dismissed the applicants’ appeal.
32. In May 1994 the applicants applied to the Borough for accommodation and were again offered temporary accommodation. The applicants stated that this was unsuitable bed and breakfast accommodation which would have entailed separating the first applicant from the rest of the family. The applicants were informed, the Government stated, of vacant plots on council and private gypsy sites in the county. The applicants recalled that these vacancies related to areas outside the Borough. One site which they visited at Aylesford was infested with rats and a dangerous place for children.
33. On 19 February 1996, the applicants received notice that the Borough had decided to withdraw the injunction proceedings commenced in 1993 and to enter their land and enforce the enforcement notice using its powers under section 178 of the Town and Country Planning Act 1990. The applicants lodged an application for judicial review of that decision. On or about 30 October 1996 the applicants withdrew their application on the basis that they would be given 6 weeks to vacate their land.
34. The applicants stated that they looked for an alternative private or official site on which to station their caravan but no such site could be found. In February 1997, the applicants sold their land. They also sold their caravan at a substantial undervalue. They went to live temporarily in the caravan occupied by the second applicant’s brother, which involved a family of six sharing with a family of five. This became intolerable. The applicants stated that they were faced with the choice of returning to the road, with the risk of further criminal sanctions or abandoning their traditional way of life by accepting the provision of conventional Council accommodation. On 14 May 1997, the applicants reluctantly decided to take the latter course, moving into conventional housing in the form of rented accommodation supplied by the Council at No. 18 Chancery Road, Marden, Kent. As a result, their two younger children had to change schools. The two older children gave up school and began working. While the move disrupted the children’s education, it did not appear to have affected their health. The applicants suffered headaches, anxiety, claustrophobia and depression requiring them to seek medical treatment. They were both prescribed medication which did not however resolve their physical sense of confinement. The applicants bought a touring caravan, which they stationed on the land of the second applicant’s brother. They took every opportunity they could to travel in the traditional style during school holidays, attending traditional gypsy fairs to continue horse trading activities and for the first applicant to find work landscaping and tree-felling. They have bought another plot of land in Yalding, Kent, with the intention of resuming their traditional life and intend to apply for planning permission.
35. The Department of the Environment statistics for gypsy caravan sites for January 1998 indicated that in the Maidstone area there were two local authority sites comprising 34 pitches. In addition, there were 96 caravans on authorised private sites and eight caravans on unauthorised sites, two of which were tolerated by the local authority. The July 1999 gypsy count showed that the number of unauthorised encampments had remained at eight, while the number of public authorised sites had decreased from 34 to 32 and the number of authorised private sites had decreased from 96 to 89. The January 2000 figures showed that there were six unauthorised sites, 31 authorised public sites and 87 authorised private sites.
36. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).
37. An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).
38. The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State’s decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).
39. If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).
40. There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.
41. Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.
42. Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).
43. Part II of the Caravan Sites Act 1968 (“the 1968 Act”) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to gypsies as a result of planning and other legislation and social changes in the post-war years, in particular the closure of commons carried out by local authorities pursuant to section 23 of the Caravan Sites and Control of Development Act 1960. Section 16 of the 1968 Act defined “gypsies” as:
“persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such”.
44. Section 6 of the 1968 Act provided that it should be the duty of local authorities:
“to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area”.
45. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).
46. Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could “designate” that district or county (section 12 of the 1968 Act).
47. The effect of designation was to make it an offence for any gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10).
48. In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of section 10.
49. By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act. He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, “the Cripps Report”).
50. Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales. He found that:
“Six-and-a-half years after the coming into operation of Part II of the 1968 Act, provision exists for only one-quarter of the estimated total number of gypsy families with no sites of their own. Three-quarters of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law: when they stop for the night they have no alternative but to break the law.”
51. The report made numerous recommendations for improving this situation.
52. Circular 28/77 was issued by the Department of the Environment on 25 March 1977. Its stated purpose was to provide local authorities with guidance on “statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management”. It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report.
53. Among other advice, it encouraged local authorities to enable self-help by gypsies through the adoption of a “sympathetic and flexible approach to [Gypsies’] applications for planning permission and site licences”. Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area.
54. Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that “it would be to everyone’s advantage if as many gypsies as possible were enabled to find their own accommodation”, and thus advised local authorities that “the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions”.
55. In addition, approximately GBP 100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites.
56. Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above.
57. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as
“a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent”.
58. Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).
59. In the case of R. v. Lincolnshire County Council, ex parte Atkinson (22 September 1995), Sedley J. referred to the 1994 Act as “Draconic” legislation. He commented that:
“For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given the power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant powers given them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravans Act 1968, therefore Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils… For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government to which the court was required to defer, were rarely, if ever used.
The culmination of the tensions underlying the history of non-compliance was the enactment of … the Act of 1994 …”
60. New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see above).
Councils were told that:
“In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.” (para. 20)
However:
“As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies ...” (para. 22).
It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13).
61. Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments”:
“6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water.
8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance.
9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.”
62. Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages.
63. In a letter dated 25 May 1998, the Department of the Environment drew to the attention of all local planning authorities in England that Circular 1/94 required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications. The Government was concerned that this guidance had not been taken up. ACERT research (see below) had showed that 24% of local authorities (96) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision. It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and the detailed policies should be provided. Compliance with this guidance was essential in fulfilling the Government’s objective that gypsies should seek to provide their own accommodation, applying for planning permission like everyone else. It was necessary, therefore, that adequate gypsy site provision be made in development plans to facilitate this process.
64. The Advisory Council for the Education of Romany and Other Travellers (ACERT), which carried out research sponsored by the Department of the Environment, Transport and Regions, noted in this report that since 1994 private site provision had increased by 30 caravans per year while the pace of public site provision had declined by 100 caravans, disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision. Noting the increase of gypsies in housing and the increased enforcement powers under the 1994 Act, it questioned, if these trends continued, the extent to which the ethnic, cultural and linguistic identity of Gypsy and Traveller people would be protected.
65. The research looked, inter alia, at 114 refused private site applications, which showed that 97% related to land within the countryside and that 96% were refused on grounds relating to the amenity value (e.g. Green Belt, conservation area locations). Of the 50 gypsy site applicants interviewed, for most acquiring permission for their own land was an important factor in improving the quality of life, gaining independence and providing security. For many, the education of their children was another important reason for private site application. All save one had applied for permission retrospectively.
66. The report stated that the figures for success rates in 624 planning appeals showed that before 1992 the success rate had averaged 35% but had decreased since. Having regard however to the way in which data was recorded, the actual success rate was probably between 35% and 10% as given as the figures in 1992 and 1996 by the gypsy groups and Department of the Environment respectively. Notwithstanding the objectives of planning policy that local authorities make provision for gypsies, most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land-use criteria in the particular case. It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development. Granting of permission for private sites remained haphazard and unpredictable.
67. In January 2000, the Department of the Environment, Regions and Transport figures on gypsy caravans disclosed that of 13,134 caravans counted, 6,118 were accommodated on local authority pitches, 4,500 on privately owned sites and 2,516 on unauthorised sites. Of the latter, 684 gypsy caravans were being tolerated on land owned by non-gypsies (mainly local authority land) and 299 gypsy caravans tolerated on land owned by gypsies themselves. On these figures, about 1,500 caravans were therefore on unauthorised and untolerated sites while over 80% of caravans were stationed on authorised sites.
68. Local authority duties to the homeless were contained in Part VII of the Housing Act 1996, which came fully into force on 20 January 1997. Where the local housing authority was satisfied that an applicant was homeless, eligible for assistance, had a priority need (e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age, physical disability, etc.), and did not become homeless intentionally, the authority was required, if it did not refer the application to another housing authority, to secure that accommodation was available for occupation by the applicant for a minimum period of two years. Where an applicant was homeless, eligible for assistance and not homeless intentionally, but was not a priority case, the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation.
69. This Convention, opened for signature on 1 February 1995, provides inter alia:
“Article 1
The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation.
Article 4
1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.
2. The parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.
3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.
Article 5
1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.
2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.”
70. The Convention entered into force on 1 February 1998. The United Kingdom signed the Convention on the date it opened for signature and ratified it on 15 January 1998. It entered into force for the United Kingdom on 1 May 1998. By 9 February 2000, it had been signed by 37 of the Council of Europe’s 41 member states and ratified by 28.
71. The Convention did not contain any definition of “national minority”. However the United Kingdom in its Report of July 1999 to the Advisory Committee concerned with the Convention accepted that gypsies are within the definition.
72. Recommendation 1203(1993) of the Parliamentary Assembly on Gypsies in Europe included the recognition that gypsies as one of the very few non-territorial minorities in Europe, “need special protection”. In its general observations, the Assembly stated inter alia:
“6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation.
7. Guarantees for equal rights, equal chances, equal treatment and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.”
Its recommendations included:
“xiv. member states should alter national legislation and regulations which discriminate directly or indirectly against Gypsies; …
xviii. further programmes should be set up in the member states to improve the housing situation, education … of those Gypsies who are living in less favourable circumstances. …”
73. In 1998, the European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies. Its recommendations included:
“… to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of … housing and education. …
… to ensure that the questions relating to ‘travelling’ within a country, in particular, regulations concerning residence and town planning, are solved in a way which does not hinder the life of the persons concerned; …”
74. On 21 April 1994, the European Parliament passed a Resolution on the situation of Gypsies in the Community, calling on the governments of member states “to introduce legal, administrative and social measures to improve the social situation of Gypsies and Travelling People in Europe”; and recommending that “the Commission, the Council and the governments of Member States should do everything in their power to assist in the economic, social and political integration of Gypsies, with the objective of eliminating the deprivation and poverty in which the great majority of Europe’s Gypsy population still lives at the present time.”
75. Protection of minorities has become one of the preconditions for accession to the European Union. In November 1999, the European Union adopted “Guiding Principles” for improving the situation of Roma in candidate countries, based expressly on the recommendations of the Council of Europe’s Specialist Group of Roma/Gypsies and the OSCE High Commissioner on National Minorities’ recommendations.
76. The situation of Roma and Sinti has become a standard item on the Human Dimension section of the agenda of OSCE Review Conferences. Two structural developments – the Office of Democratic Institutions and Human Rights (ODIHR) and the appointment of a High Commissioner for National Minorities – also concern protection of Roma and Sinti as minorities.
77. On 7 April 2000, the High Commissioner’s Report on the Situation of Roma and Sinti in the OSCE Area was published. Part IV of the Report deals with the living conditions of Roma, noting that while nomadism had been central to Romani history and culture a majority of Roma were now sedentary (one estimation gave 20% as nomadic, 20% as semi-nomadic, moving seasonally, while 60% were sedentary). This was particularly true of Central and Eastern Europe, where there had been in the past policies of forced sedentarization:
“It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSC participating States have at times breached this principle, either by making a determination of a group’s fundamental lifestyle that is inconsistent with its members’ choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity.” (pp. 98-99)
78. The Report stated that for those Roma who maintained a nomadic or semi-nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity. It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites, the number and size of available sites was insufficient in light of the need:
“… The effect is to place nomadic Roma in the position of breaking the law – in some countries, committing a crime – if they park in an unauthorized location, even though authorized sites may not be available.” (pp. 108-109)
79. The Report dealt specifically with the situation of Gypsies in the United Kingdom (pp. 109-114). It found:
“Under current law, Gypsies have three options for lawful camping: parking on public caravan sites – which the Government acknowledges to be insufficient; parking on occupied land with the consent of the occupier; and parking on property owned by the campers themselves. The British Government has issued guidance to local authorities aimed at encouraging the last approach. In practice, however, and notwithstanding official recognition of their special situation and needs, many Gypsies have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property…” (pp. 112-113).
80. Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans, it stated:
“… This scheme allows wide ply for the exercise of discretion – and that discretion has repeatedly been exercised to the detriment of Gypsies. A 1986 report by the Department of the Environment described the prospects of applying for planning permission for a Gypsy site as ‘a daunting one laced with many opportunities for failure’. In 1991, the last years in which the success of application rates was evaluated, it was ascertained that 90 per cent of applications for planning permission by Gypsies were denied. In contrast, 80 per cent of all planning applications were granted during the same period. It is to be noted that, as a category, Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities. As such, virtually all Gypsy planning applications are highly contentious. Nonetheless, the fact remains that there is inadequate provision or availability of authorized halting sites (private or public) which the high rate of denial of planning permission only exacerbates. Moreover, there are indications that the situation has deteriorated since 1994. … In face of these difficulties, the itinerant lifestyle which has typified the Gypsies is under threat.” (pp. 113-114)
81. The report’s recommendations included the following:
“…in view of the extreme insecurity many Roma now experience in respect of housing, governments should endeavour to regularize the legal status of Roma who now live in circumstances of unsettled legality.” (pp. 126 and 162)
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-57518
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 1961
DOCNAME: CASE OF LAWLESS v. IRELAND (No. 3)
IMPORTANCE: 2
CONCLUSION: Questions of procedure rejected;No violation of Art. 7
TEXT: 1. The purpose of the Commission's request - to which is appended the Report drawn up by the Commission in accordance with the provisions of Article 31 (art. 31) of the Convention - is to submit the case of G.R. Lawless to the Court so that it may decide whether or not the facts of the case disclose that the Irish Government has failed in its obligations under the Convention.
As appears from the Commission's request and from its Memorial, G.R. Lawless alleges in his Application that, in his case, the Convention has been violated by the authorities of the Republic of Ireland, inasmuch as, in pursuance of an Order made by the Minister of Justice under section 4 of Act No. 2 of 1940 amending the Offences against the State Act, 1939, he was detained without trial, between 13th July and 11th December 1957, in a military detention camp situated in the territory of the Republic of Ireland.
2. The facts of the case, as they appear from the Report of the Commission, the memorials, evidence and documents laid before the Court and the statements made by the Commission and by the Irish Government during the oral hearings before the Court, are in substance as follows:
3. G.R. Lawless is a builder's labourer, born in 1936. He is ordinarily resident in Dublin (Ireland).
4. G.R. Lawless admitted before the Commission that he had become a member of the IRA ("Irish Republican Army") in January 1956. According to his own statements, he left the IRA in June 1956 and a splinter group of the IRA in December 1956.
5. Under the Treaty establishing the Irish Free State, signed on 6th December 1921 between the United Kingdom and the Irish Free State, six counties situated in the North of the Island of Ireland remained under British sovereignty.
6. On several occasions since the foundation of the Irish Free State, armed groups, calling themselves the "Irish Republican Army" (IRA), have been formed, for the avowed purpose of carrying out acts of violence to put an end to British sovereignty in Northern Ireland. At times the activities of these groups have been such that effective repression by the ordinary process of law was not possible. From time to time, the legislature has, therefore, conferred upon the Government special powers deal with the situation created by these unlawful activities; and such powers have sometimes included the power of detention without trial.
On 29th December 1937 the Constitution at present in force in the Irish Republic was promulgated. In May 1938 all persons detained for political offences were released.
When the political situation in Europe foreshadowed war, the IRA resumed its activities and committed fresh acts of violence.
At the beginning of 1939 the IRA published documents described by it as a "declaration of war on Great Britain". Following that declaration, the IRA, operating from territory of the Republic of Ireland, intensified its acts of violence on British territory.
7. In order to meet the situation created by the activities of the IRA, the Parliament of the Republic of Ireland passed the Offences against the State Act, 1939, which came into force on 14th June 1939.
8. Part II of the 1939 Act defines the "activities prejudicial to the preservation of public peace and order or to the security of the State". Part III contains provisions relating to organisations whose activities come under the Act and any which may therefore be declared an "unlawful organisation" by order of the Government. Section 21 of the 1939 Act provides as follows:
"(1) It shall not be lawful for any person to be a member of an unlawful organisation;
(2) Every person who is a member of an unlawful organisation in contravention of this section shall be guilty of an offence under this section and shall:
(a) on summary conviction thereof, be liable to a fine not exceeding fifty pounds, or at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment; or
(b) on conviction thereof on indictment, be liable to imprisonment for a term not exceeding two years."
Part IV of the 1939 Act contains various provisions relating to the repression of unlawful activities, including, in section 30, the following provision relating to the arrest and detention of persons suspected of being concerned in unlawful activities:
"(1) A member of the Gárda Síochána (if he is not in uniform on production of his identity card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act, or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid.
(2) Any member of the Gárda Síochána (if he is not in uniform on production of his identity card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant.
(3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Gárda Síochána station, a prison, or some other convenient place for a period of twenty-four, hours from the time of his arrest and may, if an officer of the Gárda Síochána not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours.
(4) A person detained under the next preceding sub-section of this section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence, or be released by direction of an officer of the Gárda Síochána, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section.
(5) A member of the Gárda Síochána may do all or any of the following things in respect of a person detained under this section, that is to say:
(a) demand of such person his name and address;
(b) search such person or cause him to be searched;
(c) photograph such person or cause him to be photographed;
(d) take, or cause to be taken, the fingerprints of such person.
(6) Every person who shall obstruct or impede the exercise in respect of him by a member of the Gárda Síochána of any of the powers conferred by the next preceding sub-section of this section or shall fail or refuse to give his name and address or shall give, in response to any such demand, a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months."
Part V of the 1939 Act is concerned with the establishment of "Special Criminal Courts" to try persons charged with offences under the Act.
Lastly, Part VI of the 1939 Act contained provisions authorising any
Minister of State - once the Government had brought that Part of the Act into force - to order, in certain circumstances, the arrest and detention of any person whom he was satisfied was engaged in activities declared unlawful by the Act.
9. On 23rd June 1939, i.e. nine days after the entry into force of the Offences Against the State Act, the Government made an order under section 19 of the Act that the IRA, declared an "unlawful organisation", be dissolved.
10. About 70 persons were subsequently arrested and detained under Part VI of the Act. One of those persons brought an action in the High Court of Ireland, challenging the validity of his detention. The High Court declared the detention illegal and ordered the release of the person concerned by writ of habeas corpus.
The Government had all the persons detained under the same clauses released forthwith.
11. Taking note of the High Court's judgment, the Government tabled in Parliament a Bill to amend Part VI of the Offences against the State Act, 1939. The Bill, after being declared constitutional by the Supreme Court, was passed by Parliament on 9th February 1940, becoming the Offences against the State (Amendment) Act, 1940 (No. 2 of 1940).
This Act No. 2 of 1940 confers on Ministers of State special powers of detention without trial, "if and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this Part of this Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act should come into force immediately" (section 3, sub-section (2) of the Act).
Under section 3, sub-section (4) of the Act, however, a Government proclamation bringing into force the special powers of detention may be annulled at any time by a simple resolution of the Lower House of the Irish Parliament.
Moreover, under section 9 of the Act both Houses of Parliament must be kept fully informed, at regular intervals, of the manner in which the powers of detention have been exercised.
12. The powers of detention referred to in the Act are vested in Ministers of State. Section 4 of the Act provides as follows:
"(1) Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section.
(2) Any member of the Gárda Síochána may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section.
(3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens.
(4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act".
13. Under section 8 of the Offences against the State (Amendment) Act, 1940, the Government is required to set up, as soon as conveniently may be after the entry into force of the powers of detention without trial, a Commission (hereinafter referred to as "Detention Commission") to which any person arrested or detained under the Act may apply, through the Government, to have his case considered. The Commission is to consist of three persons, appointed by the Government, one to be a commissioned officer of the Defence Forces with not less than seven years' service and each of the others to be a barrister or solicitor of not less than seven years' standing or a judge or former judge of one of the ordinary courts. Lastly, section 8 of the Act provides that, if the Commission reports that no reasonable grounds exist for the continued detention of the person concerned, such person shall, with all convenient speed, be released.
14. After several years during which there was very little IRA activity, there was a renewed outbreak in 1954 and again in the second half of 1956.
In the second half of December 1956 armed attacks were made on a number of Northern Ireland police barracks and at the end of the month a policeman was killed. In the same month a police patrol on border roads was fired on, trees were felled across roads and telephone wires cut, etc. In January 1957 there were more incidents of the same kind. At the beginning of the month there was an armed attack on Brookeborough Police Barracks during which two of the assailants were killed; both of them came from the 26-county area. Twelve others, of whom four were wounded, fled across the border and were arrested by the police of the Republic of Ireland. Thereupon, the Prime Minister of the Republic of Ireland, in a public broadcast address on 6th January 1957, made a pressing appeal to the public to put an end to these attacks.
Six days after this broadcast, namely, on 12th January 1957, the IRA carried out an armed raid on an explosives store in the territory of the Republic of Ireland, situated at Moortown, County Dublin, for the purpose of stealing explosives. On 6th May 1957, armed groups entered an explosives store at Swan Laois, held up the watchman and stole a quantity of explosives.
On 18th April 1957, the main railway line from Dublin to Belfast was closed by an explosion which caused extensive damage to the railway bridge at Ayallogue in County Armagh, about 5 miles on the northern side of the border.
During the night of 25th-26th April, three explosions between Lurgan and Portadown, in Northern Ireland, also damaged the same railway line.
On the night of 3rd/4th July a Northern Ireland police patrol on duty a short distance from the border was ambushed. One policeman was shot dead and another injured. At the scene of the ambush 87 sticks of gelignite were found to have been placed on the road and covered with stones, with wires leading to a detonator.
This incident occurred only eight days before the annual Orange Processions which are widespread throughout Northern Ireland on 12th July. In the past, this date has been particularly critical for the maintenance of peace and public order.
15. The special powers of arrest and detention conferred upon the Ministers of State by the 1940 (Amendment) Act were brought into force on 8th July 1957 by a Proclamation of the Irish Government published in the Official Gazette on 5th July 1957.
On 16th July 1957, the Government set up the Detention Commission provided for in section 8 of that Act and appointed as members of that Commission an officer of Defence Forces, a judge and a district Justice.
16. The Proclamation by which the Irish Government brought into force on 8th July 1957 the special powers of detention provided for in Part II of the 1940 Act (No. 2) read as follows:
"The Government, in exercise of the powers conferred on them by sub-section (2) of section 3 of the Offences against the State (Amendment) Act, 1940, (No. 2 of 1940), hereby declare that the powers conferred by Part II of the said Act are necessary to secure the preservation of public peace and order and that it is expedient that the said part of the said Act should come into force immediately."
17. By letter of 20th July 1957 the Irish Minister for External Affairs informed the Secretary-General of the Council of Europe that Part II of the Offences against the State Act, 1940 (No. 2) had come into force on 8th July 1957.
Paragraph 2 of that letter read as follows:
"... Insofar as the bringing into operation of Part II of the Act, which confers special powers of arrest and detention, may involve any derogation from the obligations imposed by the Convention for the Protection of Human Rights and Fundamental Freedoms, I have the honour to request you to be good enough to regard this letter as informing you accordingly, in compliance with Article 15 (3) (art. 15-3) of the Convention."
The letter pointed out that the detention of persons under the Act was considered necessary "to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution."
The Secretary-General's attention was called to section 8 of the Act which provides for the establishment of a Commission to which any detained person can appeal. This Commission was set up on 16th July 1957.
18. Soon after the publication of the Proclamation of 5th July 1957 bringing into force the powers of detention provided for under the 1940 Act, the Prime Minister of the Government of the Republic of Ireland announced that the Government would release any person held under that Act who undertook "to respect the Constitution and the laws of Ireland" and "to refrain from being a member of or assisting any organisation declared unlawful under the Offences against the State Act, 1939".
19. G.R. Lawless was first arrested with three other men on 21st September 1956 in a disused barn at Keshcarrigan, County Leitrim. The police discovered in the barn a Thompson machine-gun, six army rifles, six sporting guns, a revolver, an automatic pistol and 400 magazines. Lawless admitted that he was a member of the IRA and that he had taken part in an armed raid when guns and revolvers had been stolen. He was subsequently charged on 18th October with unlawful possession of firearms under the Firearms Act, 1935 and under Section 21 of the Offences against the State Act, 1939.
G.R. Lawless, together with the other accused, was sent forward for trial to the Dublin Circuit Criminal Court. On 23rd November 1956, they were acquitted of the charge of unlawful possession of arms. The trial judge had directed the jury that the requirements for proving the accussed's guilt had not been satisfied in that it not been conclusively shown that no competent authority had issued a firearm certificate authorising him to be in possession of the arms concerned.
At the hearing before this Court on 26th October, the District Justice asked one of the accused, Sean Geraghty, whether he wished to put any questions to any of the policemen present. Sean Geraghty replied as follows:
"As a soldier of the Irish Republican Army and as leader of these men, I do not wish to have any part in proceedings in this Court."
When asked by the Justice whether he pleaded guilty or not guilty to the charge, he again said:
"On behalf of my comrades and myself I wish to state that any arms and ammunition found on us were to be used against the British Forces of occupation to bring about the re-unification of our country and no Irishman or woman of any political persuasion had anything to fear from us. We hold that it is legal to possess arms and also believe it is the duty of every Irishman to bear arms in defence of his country."
Subsequently, G.R. Lawless in reply to a question by the Justice said: "Sean Geraghty spoke for me."
Lawless was again arrested in Dublin on 14th May 1957 under section 30 of the 1939 Act, on suspicion of engaging in unlawful activities. A sketch map for an attack of certain frontier posts between the Irish Republic and Northern Ireland was found on him bearing the inscription "Infiltrate, annihilate and destroy."
On the same day his house was searched by the police who found a manuscript document on guerrilla warfare containing, inter alia, the following statements:
"The resistance movement is the armed vanguard of the Irish people fighting for the freedom of Ireland. The strength of the movement consists in the popular patriotic character of the movement. The basic mission of local resistance units are the destruction of enemy installations and establishments that is TA halls, special huts, BA recruiting offices, border huts, depots, etc.
Attacks against enemy aerodromes and the destruction of aircraft hangars, depots of bombs and fuel, the killing of key flying personnel and mechanics, the killing or capture of high-ranking enemy officers and high officials of the enemy's colonial Government and traitors to our country in their pay, that is, British officers, police agents, touts, judges, high members of the Quisling party, etc."
After being arrested, G.R. Lawless was charged:
(a) with possession of incriminating documents contrary to section 12 of the 1939 Act;
(b) with membership of an unlawful organisation, the IRA, contrary to section 21 of the 1939 Act.
On 16th May 1957, G.R. Lawless was brought before the Dublin District Court together with three other men who were also charged with similar offences under the 1939 Act. The Court convicted Lawless on the first charge and sentenced him to one month's imprisonment; it acquitted him on the second charge. The Court record showed that the second charge was dismissed "on the merits" of the case but no official report of the proceedings appears to be available. The reasons for this acquittal were not clearly established. G.R. Lawless was released on about 16th June 1957, after having served his sentence in Mountjoy Prison, Dublin.
20. G.R. Lawless was re-arrested on 11th July 1957 at Dun Laoghaire by Security Officer Connor when about to embark on a ship for England. He was detained for 24 hours at Bridewell Police Station in Dublin under section 30 of the 1939 Act, as being a suspected member of an unlawful organisation, namely the IRA.
Detective-Inspector McMahon told the Applicant on the same day that he would be released provided that he signed an undertaking in regard to his future conduct. No written form of the undertaking proposed was put to G.R. Lawless and its exact terms are in dispute.
On 12th July 1957, the Chief Superintendent of Police, acting under section 30, sub-section 3 of the 1939 Act, made an order that G.R. Lawless be detained for a further period of 24 hours expiring at 7.45 p.m. on 13th July 1957.
At 6 a.m. on 13th July 1957, however, before Lawless' detention under section 30 of the 1939 Act had expired, he was removed from the Bridewell Police Station and transferred to the military prison in the Curragh, Co. Kildare (known as the "Glass House"). He arrived there at 8 a.m. on the same day and was detained from that time under an order made on 12th July 1957 by the Minister for Justice under section 4 of the 1940 Act. Upon his arrival at the "Glass House", he was handed a copy of the above-mentioned detention order in which the Minister for Justice declared that G.R. Lawless was, in his opinion, engaged in activities prejudicial to the security of the State and he ordered his arrest and detention under section 40 of the 1940 Act.
From the "Glass House", G.R. Lawless was transferred on 17th July 1957 to a camp known as the "Curragh Internment Camp", which forms part of the Curragh Military Camp and Barracks in County Kildare, and together with some 120 other persons, was detained there without charge or trial until 11th December 1957 when he was released.
21. On 16th August 1957 G.R. Lawless was informed that he would be released provided he gave an undertaking in writing "to respect the Constitution and laws of Ireland" and not to "be a member of or assist any organisation which is an unlawful organisation under the Offences against the State Act, 1939." G.R. Lawless declined to give this undertaking.
22. On 8th September 1957 G.R. Lawless exercised the right, conferred upon him by section 8 of the 1940 Act, to apply to have the continuation of his detention considered by the Detention Commission set up under the same section of that Act. He appeared before that Commission on 17th September 1957 and was represented by counsel and solicitors. The Detention Commission, sitting for the first time, adopted certain rules of procedure and adjourned until 20th September.
23. On 18th September 1957, however, G.R. Lawless' counsel also made an application to the Irish High Court, under Article 40 of the Irish Constitution, for a Conditional Order of habeas corpus ad subjiciendum. The object of the application was that the Court should order the Commandant of the detention camp to bring G.R. Lawless before the Court in order that it might examine and decide upon the validity of detention. A Conditional Order of habeas corpus would have the effect of requiring the Commandant to "show cause" to the High Court why he should not comply with that Order.
The Conditional Order was granted on the same date and was served on the Commandant giving him a period of four days to "show cause". It was also served upon the Detention Commission. The Detention Commission sat on 20th September 1957, and decided to adjourn the hearing sine die pending the outcome of the habeas corpus application.
24. G.R. Lawless then applied, by a motion to the High Court, to have the Conditional Order made "absolute", notwithstanding the fact that the Commandant of the Detention Camp had in the meantime "shown cause" opposing this application. The Commandant had, in this connection, relied upon the order for the Applicant's detention which had been made by the Minister for Justice.
The High Court sat from 8th to 11th October 1957 and heard full legal submissions by counsel for both parties. On 11th October it gave judgment allowing the "cause shown" by the camp Commandant to justify detention. The habeas corpus application was therefore dismissed.
25. On 14th October 1957 G.R. Lawless appealed to the Supreme Court, invoking not only the Constitution and laws of Ireland but also the European Convention of Human Rights. On 6th November the Supreme Court dismissed G.R. Lawless' appeal. It gave its reasoned judgment on 3rd December 1957.
The main grounds of the Supreme Court's judgment were as follows:
(a) The 1940 Act, when in draft form as a Bill, had been referred to the Supreme Court for decision as to whether it was repugnant to the Irish Constitution. The Supreme Court had decided that it was not repugnant and Article 34 (3) 3 of the Constitution declared that no court had competence to question the constitutional validity of a law which had been approved as a Bill by the Supreme Court.
(b) The Oireachtas (i.e. the Parliament) which was the sole legislative authority had not introduced legislation to make the Convention of Human Rights part of the municipal law of Ireland. The Supreme Court could not, therefore, give effect to the Convention if it should appear to grant rights other than, or supplementary to, those provided under Irish municipal law.
(c) The appellant's period of detention under section 30 of the 1939 Act was due to expire at 7.45 p.m. on 13th July 1957. At that time he was already being detained under another warrant issued by the Minister for Justice and his detention without release was quite properly continued under the second warrant.
(d) The appellant had not established a prima facie case in regard to his allegation that he had not been told the reason for his arrest under the Minister's warrant. An invalidity in the arrest, even if established, would not, however, have rendered his subsequent detention unlawful whatever rights it might otherwise have given the appellant under Irish law.
(e) The Court had already decided, when considering the 1940 Act as a Bill, that it had no power to question the opinion of a Minister who issued a warrant for detention under section 4 of that Act.
(f) The appellant in the habeas corpus proceedings before the High Court had challenged the legality of the constitution of the Detention Commission. Even if it was shown that the Commission's rulings on various procedural matters were wrong, that would not make the appellant's detention unlawful nor would it provide a basis for an application for habeas corpus. Section 8 of the 1940 Act showed that the Commission was not a court and an application before it was not a form of proceedings but no more than an enquiry of an administrative character.
26. Meanwhile, on 8th November 1957 - that is two days after the announcement of the Supreme Court's rejection of his appeal - G.R. Lawless had introduced his Application before the European Commission of Human Rights, alleging that his arrest and detention under the 1940 Act, without charge or trial, violated the Convention and he claimed:
(a) immediate release from detention;
(b) payment of compensation and damages for his detention;
and
(c) payment of all the costs and expenses of, and incidental to the proceedings instituted by him in the Irish courts and before the Commission to secure his release.
27. Shortly afterwards the Detention Commission resumed its consideration of the case of G.R. Lawless under section 8 of the 1940 Act and held hearings for that purpose on 6th and 10th December 1957. On the latter date, at the invitation of the Attorney-General, G.R. Lawless in person before the Detention Commission gave a verbal undertaking that he would not "engage in any illegal activities under the Offences against the State Acts, 1939 and 1940", and on the following day an order was made by the Minister for Justice, under section 6 of the 1940 Act, releasing the Applicant from detention.
28. The release of G.R. Lawless from detention was notified to the European Commission of Human Rights by his solicitor in a letter dated 16th December 1957. The letter at the same time stated that G.R. Lawless intended to continue the proceedings before the Commission with regard to (a) the claim for compensation and damages for his detention and (b) the claim for reimbursement of all costs and expenses in connection with the proceedings undertaken to obtain his release.
29. At the written and oral proceedings before the Court, the European Commission of Human Rights and the Irish Government made the following submissions:
The Commission, in its Memorial of 27th June 1960:
"May it please the Court to take into consideration the findings of the Commission in its Report on the case of Gerard Richard Lawless and
(1) to decide:
(a) whether or not the detention of the Applicant without trial from 13th July to 11th December 1957 under section 4 of the Offences against the State (Amendment) Act, 1940, was in conflict with the obligations of the Respondent Government under Articles 5 and 6 (art. 5, art. 6) of the Convention;
(b) whether or not such detention was in conflict with the obligations of the Respondent Government under Article 7 (art. 7) of the Convention;
(2) if such detention was in conflict with the obligations of the Respondent Government under Articles 5 and 6 (art. 5, art. 6) of the Convention, to decide:
(a) whether or not the Government's letter to the Secretary-General of 20th July 1957 was a sufficient communication for the purposes of Article 15, paragraph (3) (art. 15-3) of the Convention;
(b) whether or not, from 13th July to 11th December 1957, there existed a public emergency threatening the life of the nation, within the meaning of Article 15, paragraph (1) (art. 15-1) of the Convention;
(c) if such an emergency did exist during that period, whether or not the measure of detaining persons without trial under section 4 of the 1940 Act, as it was applied by the Government, was a measure strictly required by the exigencies of the situation;
(3) to decide whether or not the Applicant is, in any event, precluded by Article 17 (art. 17) of the Convention from invoking the provisions of Articles 5, 6 and 7 (art. 5, art. 6, art. 7);
(4) in the light of its decisions on the questions in paragraphs 1-3 of these submissions, to adjudge and declare:
(a) whether or not the facts disclose any breach by the Respondent Government of its obligations under the Convention;
(b) if so, what compensation, if any, is due to the Applicant in respect of the breach."
30. The Agent of the Irish Government, at the public hearing on 10th April 1961:
"May it please the Court to decide and declare that the answers to the questions contained in paragraph 58 of the Commission's Memorial of 27th June 1960 are as follows:
1.
(a) That the detention of the Applicant was not in conflict with the obligations of the Government under Articles 5 and 6 (art. 5, art. 6) of the Convention.
(b) That such detention was not in conflict with the obligations of the Government under Article 7 (art. 7) of the Convention.
2.
(a) That the Government's letter of 20th July 1957 was a sufficient communication for the purposes of paragraph (3) of Article 15 (art. 15-3) of the Convention or, alternatively, that in the present case, the Government are not by any of the provisions of the said paragraph (3) (art. 15-3) deprived from relying on paragraph (1) of Article 15 (art. 15-1).
(b) That from 13th July 1957 to 11th December 1957 there did exist a public emergency threatening the life of the nation, within the meaning of Article 15, paragraph (1) (art. 15-1), of the Convention.
(c) That the measure of detaining persons without trial, as it was applied by the Government, was a measure strictly required by the exigencies of the situation.
3. That the Applicant is in any event precluded by Article 17 (art. 17) of the Convention from invoking the provisions of Articles 5, 6 and 7 (art. 5, art. 6, art. 7) of the Convention.
4.
(a) That the facts do not disclose any breach by the Government of their obligations under the Convention.
(b) That, by reason of the foregoing, no question of compensation arises."
NON_VIOLATED_ARTICLES: 7


ITEMID: 001-103765
LANGUAGEISOCODE: ENG
RESPONDENT: MNE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ŽIVALJEVIĆ v. MONTENEGRO
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1950 and 1953 respectively and live in Podgorica.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 19 May 1995 the Public Construction Fund based in Podgorica (“the PCFP”) requested the expropriation of a plot of land belonging to the applicants in order to build a road.
8. On 14 September 1995 the applicants requested that their house and the remainder of their land also be expropriated.
9. By the end of 1995 the planned road was built, passing through the plot in question.
10. On 11 October 1996 the Real Estate Office in Podgorica (“the REOP”) expropriated only the plot specified by the PCFP, without considering the applicants’ request.
11. On 29 October 1996 the applicants lodged an appeal, but by 11 December 1996 this appeal had been rejected.
12. On 5 February 1998 the Supreme Court (Vrhovni sud) quashed the above decisions.
13. By 3 March 2004, following eight remittals, the requests were still pending before the REOP.
14. Between 3 March 2004 and 28 March 2005 three hearings were adjourned, as either the municipality’s representative or the court’s expert witnesses had failed to appear.
15. On 18 February 2005 the applicants sought an “inspection” (inspekcijski nadzor) of the proceedings at issue. By 16 March 2005 the Ministry of Justice had “established irregularities” in the proceedings and ordered that they be rectified (otklanjanje utvrđenih nepravilnosti).
16. On 28 March 2005 the REOP accepted both expropriation requests and on 1 September 2005 this decision was confirmed on appeal.
17. On 6 June 2006 the Administrative Court (Upravni sud) quashed the latter decision.
18. On 3 October 2006 the Ministry of Finance (“the MOF”) quashed the REOP’s decision of 28 March 2005.
19. Since the REOP had failed to render a decision thereafter, on 11 June 2007 and 14 August 2007 respectively the applicants lodged complaints with the MOF.
20. On 30 August 2007 the applicants also initiated a dispute (upravni spor) before the Administrative Court.
21. On 7 September 2007 the MOF accepted the applicants’ appeal and ordered the REOP to decide on the matter within thirty days.
22. On 24 October 2007 the Administrative Court stayed the administrative dispute.
23. On 3 November 2007 the REOP accepted both expropriation requests, but on 28 May 2008 the MOF quashed this decision on appeal.
24. On 16 December 2008 the applicants re-instituted their dispute before the Administrative Court.
25. As of 19 May 2010 the proceedings were still pending.
26. Article 149 of the Constitution provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.
27. This Constitution entered into force on 22 October 2007.
28. Section 48 provides that a constitutional appeal can be filed against an individual decision of a state body, an administrative body, local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted. Sections 49-59 provide additional details as regards the processing of constitutional appeals.
29. This Act entered into force in November 2008.
30. This Act provides, under certain circumstances, for the possibility to have lengthy proceedings expedited by means of request for review (kontrolni zahtjev), as well as an opportunity for the claimants to be awarded compensation therefor by means of an action for fair redress (tužba za pravično zadovoljenje).
31. Section 44, in particular, provides that this Act shall be applied retroactively to all proceedings from 3 March 2004, but that the duration of proceedings before that date shall also be taken into account.
32. This Act entered into force on 21 December 2007, but contained no reference to applications involving procedural delay already lodged with the Court.
33. Section 212 § 1 provides that in simple matters an administrative body is obliged to issue a decision within one month of a party’s lodging a request. In all other cases, the administrative body is obliged to issue a decision within two months of the lodging of the request.
34. Section 212 § 2 enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal to the appellate body as if his request had been refused. If the appeal is not allowed, the applicant can directly initiate an administrative dispute before the court with jurisdiction.
35. Section 18 provides that a party can institute administrative proceedings before the Administrative Court (administrative dispute) if the appellate body does not issue a decision within sixty days nor within an additional period of seven days; or if the first-instance body does not issue a decision and there is no right to an appeal.
36. Section 35 provides that the Administrative Court itself can rule on the merits if a decision has already been quashed in the same dispute and the relevant body has not acted fully in accordance with the Administrative Court’s judgment or if it has not issued a new decision within thirty days. The Administrative Court can also rule on the merits if the appellate body, or the first-instance body where there is no right to an appeal, has not ruled within the envisaged time-limit.
37. Section 9 of this Act provided that if during the expropriation of a part of one’s real estate it is established that the owner can no longer normally use the remaining property, has no economic interest in using it or if his very means of support is thereby jeopardised, the remaining property shall also be expropriated if he requests it.
38. Section 10 provides that anybody can request an administrative inspection.
39. Sections 13-19 specify the rights and duties of inspectors, which, inter alia, include their right to identify irregularities and order that adequate measures be undertaken, as well as adequate fines imposed.
40. Between 1 January 2008 and 30 September 2009 the courts in Montenegro considered one hundred and two requests for review pursuant to the Right to a Trial within a Reasonable Time Act. A further two requests were withdrawn and eight were still being examined. Of the one hundred and two requests that had been considered in eighty-four cases the applicants were notified that certain procedural measures would be undertaken within a specified period. There is no information in the documents provided as to whether these time-limits were complied with or not. Eighteen requests were rejected as ill-founded.
41. In the same period, twenty-two actions for fair redress were submitted, of which sixteen were dealt with and six were still being examined. In one case the courts awarded the plaintiff non-pecuniary damages for the length of civil proceedings. In 2010 an additional fourteen actions for fair redress were examined, in two of which the courts awarded damages.
42. Sections 185-192 contained details concerning the right of persons who had suffered damage as a result of the wrongful acts of third parties to be compensated.
43. This Act entered into force on 15 August 2008 thereby repealing the Obligations Act 1978. Sections 192-199, however, correspond to sections 185-192 of the previous Act.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1