ITEMID: 001-59154
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF CHAPMAN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 8;No violation of P1-1;No violation of Art. 6-1;No violation of Art. 14
JUDGES: Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza
TEXT: 10. The applicant is a Gypsy by birth. Since her birth she has travelled constantly with her family, mainly in the Hertfordshire area, in search of work. When she married, the applicant and her husband continued to live in caravans. They have four children.
11. The applicant and her husband used to stop for as long as possible on temporary or unofficial sites while he found work as a landscape gardener. They stayed for several years on an unofficial site in St Albans. They travelled for some years in the Watford area. They were on the waiting list for a permanent site but were never offered a place. They were constantly moved from place to place by the police and representatives of local authorities. Their children's education was constantly interrupted because they had to move about.
12. Due to harassment while she led a travelling life, which was detrimental to the health of the family and the education of the children, the applicant bought a piece of land in 1985 with the intention of living on it in a mobile home. The land is within the area of Three Rivers District Council in Hertfordshire where there is no official Gypsy site. The applicant alleges that a County Council official had told her in 1984 when she was encamped on the roadside that if she bought land she would be allowed to live on it. The Government state that there is no record of such a promise being made and that it would be unlikely that such a promise would be made, since it would be for the District Council, not the County Council, to decide any application. The land was also subject to a 1961 discontinuance order requiring the site not to be used for the stationing of three caravans.
13. The applicant and her family moved on to the land and applied for planning permission. This was to enable the children to attend school immediately. The District Council refused the application for planning permission on 11 September 1986 and served enforcement notices.
14. Appeals were lodged against the enforcement notices. In July 1987 a public inquiry was held by an inspector appointed by the Department of the Environment. He dismissed the appeal and upheld the decision of the Council as the land was in the Metropolitan Green Belt and he considered that the national and local planning policies should override the needs of the appellant. Since there was no official Gypsy site in the Three Rivers district the family was given fifteen months to move from their land, the Council having stated that a suitable location was being sought for them and that they would be able to move to a new official site within a year.
15. When the fifteen-month period expired, the family remained on the site since they had nowhere else to go. The applicant applied for planning permission for a bungalow, as it had been stated at the public inquiry that this would be a more appropriate use of the land than a mobile home. Planning permission was refused and the Council's decision was upheld at a further local inquiry. The family remained on the site and the Council served summonses on the applicant and her husband for failure to comply with an enforcement notice. On 18 August 1989 they were both fined 100 pounds sterling (GBP), with costs of GBP 50 in the Magistrates' Court. On 23 February 1990 they were again fined, this time GBP 500 each, with costs of GBP 50. To avoid further court action, the family returned to a nomadic life and were constantly moved from place to place by Council officials. The applicant's eldest daughter had started a hairdressing course at a college of further education and the second daughter was about to start studying at college for a diploma in forestry. Both of these courses had to be abandoned and the two younger children could no longer attend school.
16. During this period the applicant made a further planning application for a bungalow on her land. Again her application was refused and failed after an inquiry. In August 1992 the applicant and her family returned to their land in a caravan. Enforcement notices were issued by the Council on 11 March 1993. The applicant appealed against them and there was a planning inquiry on 2 November 1993.
17. By a decision letter of 18 March 1994, the inspector dismissed the appeal. In his decision, he stated, inter alia:
“15. Local policies in the Hertfordshire County Structure Plan Review of 1986, as revised by the Approved Alterations of 1991 and the Three Rivers District Plan of 1982, reaffirm that Sarratt and the surrounding countryside lie within the Metropolitan Green Belt ... The Structure Plan contains policies also on Landscape Conservation and Gypsy sites. The District Plan shows that the site lies outside the core of the village, but within an Agricultural Priority Area and also, within an Area of Great Landscape Value, now, by virtue of the Structure Plan, termed a Landscape Conservation Area.
...
19. The appeal site is a deep plot of some 0.77 ha on the frontage of Dawes Lane which leads from Sarratt, a village in the Metropolitan Green Belt; past the site to the west are a few dwellings, a nursery and the Chess Valley. ...
...
24. From the evidence before me and from my inspection of the site and the surrounding area it is clear to me that the principal issues in these matters are, first, whether the developments for which permissions are sought would be appropriate within the Green Belt and, second, whether there are any very special circumstances in your client's cases which would outweigh the general strong presumption against inappropriate development in the Green Belt.
25. Structure Plan policies presume against planning permission in the Green Belt, except in very strong circumstances, for the construction of new buildings, including residential caravans, or certain other specified categories of development. Para. 13 of Planning Policy Guidance 2 – Green Belts – states that, inside a Green Belt, approval should not be given, except in very special circumstances, for other than certain categories of appropriate developments. The previous paragraph emphasises the national presumption against inappropriate development within Green Belts.
26. The latest national guidance, in Circular 1/94, on Gypsy Sites and Planning states in the introduction that a main intention of the document is to withdraw the previous guidance indicating that it may be necessary to accept the establishment of gypsy sites in protected areas, including Green Belt sites. Paragraph 13 goes on to say that gypsy sites are not regarded as being amongst those uses of land which are normally appropriate in Green Belts.
27. None of [the applicant's] projects fall within the categories identified as exempt from national or local assumptions against inappropriate development in Green Belts. ...
28. I hold the very firm conviction that none of the developments referred to in these notices could properly and reasonably be regarded as appropriate in the terms of strong national guidance or long established local policies which all seek to protect the value of the Green Belt designation of the area.
29. This site is in a part of the Metropolitan Green Belt, near to a motorway and particularly vulnerable to development pressure. In my judgment the local and national worthwhile policies that seek to protect the Green Belt would undoubtedly be frustrated for a main purpose of Green Belts is to protect the surrounding countryside from further encroachment.
30. As for alternative accommodation for [the applicant], I was referred to the statutory duty of the County Council to provide a site for [the applicant], who is a gypsy resident in the area, to place her caravan; 23 years after statutory requirement to provide better living conditions for gypsies there were not sufficient sites in the County. The Council would save public money by letting [the applicant] remain here and not put another caravan on the roadside; there had never been an official gypsy caravan site in the District, which, in consequence, had not acquired the benefit of a statutorily designated area.
31. [The applicant] also said that the County Council were under a Direction from the Secretary of State for the Environment, under section 9 of the Caravan Sites Act of 1968 to provide further accommodations for gypsies in the County, but the County Council were not able to confirm progress to establish a 15 pitch gypsy caravan site at Langlebury Lane, Langlebury. ...
...
33. I note that the Council did not refute [the applicant's] comment on caravan site provision in the area, but I do not accept her argument as of sufficient weight to overturn, in the absence of very special circumstances, the cogent planning argument against inappropriate development in the Green Belt here.
...
35. Your client said that the site had been tidied; rubbish, undergrowth and some neglected buildings had been removed; a building had been renovated. ... The caravans are set further back on the site and partly screened by the previously erected large brick building; moreover they were considerably less conspicuous than the previous mobile home which was stationed close to Dawes Lane. ... As for the caravans, your client said that there were few places from which they are likely to be seen by very many members of the public, apart from drivers on Dawes Lane whose attention was likely to be on traffic conditions.
36. I attach more weight to the fact that this site lies in an attractive setting of mainly sporadic dwellings in extensive grounds and in a designated Landscape Conservation Area. To the north-west is the built-up area of the village and to the south-west attractive open countryside in the Chess Valley; it was agreed that the area is popular for recreational walking and riding.
37. I do not consider that the arguments put forward by [the applicant] would justify allowing residential development of this site. I find no reason to differ from the conclusions of my predecessors who considered that it would be wrong to grant permission for this site in a part of the Metropolitan Green Belt which is particularly vulnerable to development pressure. Whatever the conditions attached to specific grants of permission, stationing a residential caravan here would detract significantly from the quiet rural character and appearance of the site. As well as the caravan itself and the external signs of occupation there would be the activities associated with a family on the site and the comings and goings inevitable with the residential occupation.
...
40. There is another factor which reinforces, to my mind, rejection of [the applicant's} appeals. Whilst the local planning authority has to consider every application on its merits at the time, these projects, if allowed, would be very likely to encourage similar schemes. The Council would undoubtedly find it more difficult to refuse such other schemes, with this site as a precedent, and those additional developments would cause significant harm to interests of acknowledged importance, which I consider to be unacceptable.
...
43. At the inquiry in 1987, following enforcement action, the Council told that Inspector that a suitable location for a gypsy caravan site was being sought; [the applicant] would be able to move to the new site within a year. ...
...
45. It appears that little progress has been made since the appeal in 1987. Paragraphs 30 and 31 above indicate that the information given in 1987 to the Inspector about the provision of gypsy caravan sites in the County was optimistic; estimates among Council officers apparently varied between 1 year and 5 years.
46. I note the Council's statement that [the applicant] had not shown interest in a pitch on a Council caravan site but, to my mind, other factors militate against their argument. First, it is not unreasonable for [the applicant] to wait the outcome of these appeals; second, [the applicant] might not unreasonably have declined to make an application for a caravan pitch site provided by the Council, for, as agreed at this inquiry, she has no prospect of obtaining one. ...
...
47. ... As I believe [the applicant] to have no better prospect now of obtaining another pitch than in 1987, I shall in the exceptional circumstances of this case, vary the notice, as before, to specify a period of 15 months for compliance with it.”
18. The applicant's father, aged 90, who suffers from senile dementia, now lives with the applicant as he needs constant care and has no one else to look after him. He receives weekly injections from a doctor. The applicant, who has suffered bereavement in respect of her son and grandson since 1993, suffers from depression and has a heart condition. Her husband receives treatment from his doctor and the hospital for arthritis. The applicant's children, previously living on the site, have moved away.
19. There are no local authority sites or private authorised sites in the Three Rivers district. However, the Government submit that there are local authority and authorised private sites elsewhere in the same county of Hertfordshire, which contains 12 local authority sites which can accommodate 377 caravans.
20. According to the draft Local Plan applied by the Council to planning, policy GB.1 specifies that the Green Belt area covers the entire Three Rivers district save for defined urban areas and GB.6 specifies that with the exception of the villages planning permission for development was to be refused except in very special circumstances.
21. 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). 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).
22. 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).
23. 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 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).
24. 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 relevant considerations (section 172(1) of the 1990 Act).
25. 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.
26. 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.
27. Where any steps required to be taken by an enforcement notice are not taken within the specified time-limit, the local authority may enter the land to take the required 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).
28. The purpose of Green Belts and the operation of the policy to protect them is set out in national policy document PPG 2 (January 1995).
“1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. ...
...
1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development.
1.5. There are five purposes of including land in Green Belts:
– to check the unrestricted sprawl of large built-up areas;
– to prevent neighbouring towns from merging into one another;
– to assist in safeguarding the countryside from encroachment;
– to preserve the setting and special character of historic towns; and
– to assist in urban regeneration by encouraging the recycling of derelict and other urban land.
...
2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead.
...
3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. ...
3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.
...”
29. 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”.
30. 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”.
31. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).
32. 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).
33. 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).
34. 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.
35. 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”).
36. Sir John Cripps 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.”
37. The report made numerous recommendations for improving this situation.
38. 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.
39. Among other advice, it encouraged local authorities to enable self-help by Gypsies through the adoption of a “sympathetic and flexible approach to [Gypsies'] applications for planning permission and site licences”. Making express reference to cases where Gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area.
40. Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that “it would be to everyone's advantage if as many Gypsies as possible were enabled to find their own accommodation”, and thus advised local authorities that “the special need to accommodate Gypsies ... should be taken into account as a material consideration in reaching planning decisions”.
41. In addition, approximately GBP 100,000,000 were spent under a scheme by which 100% grants were made available to local authorities to cover the costs of creating Gypsy sites.
42. 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 to12 of the 1968 Act and the grant scheme referred to above.
43. 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”.
44. 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).
45. 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 ...”
46. 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:
“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.” (paragraph 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. ...” (paragraph 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 and 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).
47. Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping of Gypsies and the power to give a direction to leave the land (see the 1994 Act above). Paragraphs 6 to 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.”
48. Paragraphs 10 to 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.
49. 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 shown 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 that 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.
50. The Advisory Council for the Education of Romany and other Travellers (ACERT) which had 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 Gypsies and Travellers would be protected.
51. 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 (for example, Green Belt, conservation area locations). For most of the 50 Gypsy site applicants interviewed, obtaining permission for their own land was an important factor in improving the quality of life and gaining independence and security. For many, the education of their children was another important reason for private site application. All save one had applied for permission retrospectively.
52. The report stated that the success rate in 624 planning appeals before 1992 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%, being the figures given 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 authorities would permit development. The granting of permission for private sites remained haphazard and unpredictable.
53. In January 2000 the Department of the Environment, Transport and Regions figures on Gypsy caravans in England disclosed that of 13,134 caravans counted, 6,118 were stationed 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.
54. 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 (for example, 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 ensure that accommodation was made available to 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 accommodation.
55. This convention, opened for signature on 1 February 1995, provides, inter alia:
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.
...
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.
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.”
56. 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.
57. The convention does 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.
58. 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:
“xv. 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; ...”
59. In 1998 the European Commission against Racism and Intolerance adopted 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 way of life of the persons concerned;”
60. On 21 April 1994 the European Parliament adopted a Resolution on the situation of Gypsies in the Community (Official Journal of the European Communities no. C 128/372 of 9 May 1994), 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”.
61. 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 on Roma/Gypsies and those of the OSCE High Commissioner on National Minorities.
62. 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 on National Minorities – also concerned protection of Roma and Sinti as minorities.
63. 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 dealt 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 policies of forced sedentarisation in the past:
“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 OSCE 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)
64. The report stated that for those Roma who maintained a nomadic or semi-nomadic lifestyle the availability of legal and suitable parking sites 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 compared to 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 unauthorised location, even though authorised sites may not be available.” (pp. 108-09)
65. The report dealt specifically with the situation of Gypsies in the United Kingdom (pp. 109-14). 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. 112-13).
66. Concerning the planning regime which requires planning permission for the development of land towards the stationing of caravans, it stated:
“... This scheme allows wide play 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 in so far 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 authorised 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. 113-14)
67. 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 regularise the legal status of Roma who now live in circumstances of unsettled legality.” (pp. 126 and 162)
NON_VIOLATED_ARTICLES: 14
6
8
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81693
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NAİME DOĞAN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The applicants were born in 1919, 1948, 1949, 1953 and 1956 respectively and live in different cities in Turkey.
5. The applicants’ predecessor, Mr Hasan Fehmi Doğan, was the owner of a plot of land in Manavgat. On 27 November 1959 he filed an action with the Manavgat Civil Court against certain third persons, whom he claimed were unlawfully occupying his land. He requested that the allegedly unlawful interference be halted.
6. As cadastral work by the authorities started in the area in 1965, the court decided on 16 July 1965 that it no longer had jurisdiction and transferred the case to a court with special jurisdiction in the subject, the Land Registry Court (Tapulama Mahkemesi) in Manavgat.
7. The cadastral work divided the land into six parcels, the ownership of which was separately disputed between the applicants’ predecessor and the occupiers. In 1967, the Land Registry Court joined all six cases.
8. Throughout the proceedings, the applicants’ predecessor on the one hand maintained that the new plots corresponded to the single piece of land already registered in his name. The defendants, on the other hand, claimed that the land records could not possibly relate to those plots as they had purchased the whole piece of land in dispute from its previous, lawful owner.
9. On 27 March 1987 the Land Registry Court ruled in favour of the applicants’ predecessor and ordered the six parcels to be registered in his name.
10. On 25 October 1988, however, the Court of Cassation quashed this judgment on the grounds that there had been an insufficient factual examination of the case.
11. On 27 June 1989 the Land Registry Court resumed the proceedings. On 31 July 1990 it decided to abide by the Court of Cassation’s decision. Accordingly, it conducted a broader factual examination.
12. Notwithstanding that decision, the same court held a hearing on 9 October 1990 and scheduled a new hearing to decide (apparently for a second time) whether or not to abide by the Court of Cassation’s ruling.
13. At the next hearing held on 4 December 1990, the Land Registry Court gave a fresh decision to abide by the Court of Cassation’s ruling.
14. Between 3 September 1991 and 17 July 2002 hearings were held every two to three months. However, several hearings were presided over by different judges.
15. At the hearing on 3 September 1991, the court decided to conduct an on-site inspection (keşif) on 11 November 1991.
16. On 17 March 1992 a new judge was appointed to the court for the second time in four months. As he was unfamiliar with the case, he postponed the inspection. Until the end of 1992, the judge sitting on the bench of the court was changed three more times and the hearings were mainly devoted to the new judges’ gaining familiarity with the dispute.
17. Despite the fact that the court scheduled an on-site inspection several times, it was deferred for various reasons, including the lack of the necessary court stamps in the court’s registry to notify experts and witnesses, the parties’ failure to pay certain fees, the applicants’ failure to bring their witnesses to the inspection site, the parties’ mutual failure to attend the inspection, the judge’s annual leave, the lack of pertinent witnesses, unsuitable weather conditions, the ailing condition of a local witness, the court’s search for suitable new witnesses, the court’s shortage of time due to its hearing backlog and, finally, the defendants’ disorderly behaviour and contempt of court. Throughout this process, the judge presiding over the case was again changed at least four times.
18. The re-scheduled on-site inspection was eventually conducted on 24 September 1998.
19. At the hearing on 29 December 1998, the parties submitted their final observations. From that date until 17 July 2002, the court held a total of fifteen hearings. At the hearing held on that last date, the Land Registry Court dismissed the applicants’ request.
20. On 11 November 2002 the applicants appealed. The Court of Cassation held a hearing on 12 July 2005.
21. On 26 December 2006 the Court of Cassation upheld the Land Registry Court’s judgment.
22. On 26 March 2007 the applicant filed a petition with the Land Registry Court in Manavgat, to be submitted to the Court of Cassation, and requested the rectification of the decision dated 26 December 2006 on the ground that the latter court had rendered a decision which lacked legal and procedural reasoning. According to the applicant’s letter dated 25 June 2007, the proceedings are still pending before the Court of Cassation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5841
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ARHIM v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Luigi Ferrari Bravo
TEXT: The applicant is a Libyan national, born in 1968 and living in the Netherlands. He is represented before the Court by Mr T. Adank and Mr D. Gürses, both lawyers practising in Utrecht.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 2 December 1997, the applicant arrived in the Netherlands where he applied for asylum or, alternatively, a residence permit for compelling humanitarian grounds. On 5 February 1998, the applicant was interviewed by immigration official on the reasons for his asylum request.
On 28 September 1998, the applicant’s request were rejected by the State Secretary of Justice (Staatssecretaris van Justitie). The applicant’s objection (bezwaar) against this decision was rejected by the State Secretary on 21 July 1999. The applicant’s subsequent appeal to the Hague Regional Court (Arrondissementsrechtbank) sitting in Zwolle was dismissed on 10 February 2000.
The Regional Court noted that, in support of his asylum request the applicant submitted that his father had been arrested in 1978 for involvement in a trade union and that he had been released later, that his brother was detained since 1993 for opposition activities and that in this connection his family had been arrested and questioned on three occasions; the last time in 1995. As to his personal situation, the applicant had submitted that, since 1996, he had been a member of the illegal organisation “the Association for the Rights of the Libyan Citizen” which association collects and provides information about detained persons and acts as a go-between between detainees and their families. He had stencilled and copied pamphlets for this association at his work. His immediate superior in the association was Y., an internal security service officer. In August 1997, he had been informed that a travel prohibition had been issued against him and in September 1997 the association decided that he and another person, J., should leave the country. In October 1997, the applicant and J. obtained a visa in their passport via the Netherlands Embassy in Libya and, on 14 November 1997, they travelled by car to Tunisia from where they travelled by plane to Belgium. They were refused entry to Belgium and sent back to Tunisia. They subsequently travelled by plane to the Netherlands. After his departure from Libya, his brother had been arrested and released later.
The Regional Court held that the general situation in Libya was not as such that asylum seekers from Libya automatically qualified for asylum. It should therefore be established whether, on the basis of his personal situation, the applicant had founded reasons to fear persecution within the meaning of the 1951 Geneva Convention relating to the Status of Refugees.
The Regional Court did not find it established that the applicant had attracted the negative attention of the Libyan authorities in connection with his alleged activities for the association indicated. Noting that the applicant had left Libya in a lawful and controlled manner, it did not find it established that the applicant had been subject to travel prohibition. It further did not find it established that the applicant had left the country in an illegal manner. The Regional Court further noted that a link between the alleged travel prohibition and the applicant’s activities had remained unsubstantiated. It further noted that, after having learned of the alleged travel prohibition in August 1997, the applicant had remained at his permanent addresses and had encountered no problems from the side of the Libyan authorities until his departure from Libya on 14 November 1997.
The Regional Court further found it unlikely that an investigation against the applicant would have been conducted as from August 1997. On this point it rejected as unlikely that Y., a founder of the association and who allegedly held a high position in the Libyan internal security service, would have held further meetings with the applicant and other members of the association whilst the applicant would have been under investigation and the chances of discovery thus being real. This alleged approach of the Libyan authorities did not, in the court’s view, match the situation described by Amnesty International in its report of 1 July 1999, i.e. a ruthless suppression of any form of opposition.
As to applicant’s argument that he belonged to a family considered suspect by the authorities, the Regional Court noted that it had not appeared that, since 1995, the applicant’s family had encountered any problems from the side of the authorities whereas, until his departure, the applicant had worked in the public service. Without any further substantiation, this finding could not be altered by the fact that the applicant’s brother had been arrested after November 1997 and released later.
The Regional Court also rejected as not having been established that the applicant had evaded his military obligations by failing to respond to a summons for military retraining. This claim had remained fully unsubstantiated despite the fact that the applicant had contacts with his family on various occasions and the fact that the applicant’s brother had been in the Netherlands. Even assuming that the applicant would have in fact been summoned to report for military service, the Regional Court considered that it could not be concluded from an official report of 9 December 1996 of the Netherlands Ministry of Foreign Affairs nor from the Amnesty International report that it would be likely that the applicant, on grounds of failing to report for military service, would risk a disproportionate or discriminatory sanction. According to the Amnesty International Report, the sanction for such a failure was imprisonment for a maximum of three years and deprivation of civic rights for a maximum of ten years.
As to the applicant’s claim that an absence from Libya for an extended period of time is sufficient to attract the negative attention from the Libyan authorities, the Regional Court noted that, according to Amnesty International, it was not known whether Libyan nationals required permission for a lengthy stay abroad but that it could be expected that Libyan nationals, upon their return to Libya after a lengthy stay abroad, would be questioned by the security service. However, according to the Regional Court, this was insufficient to conclude that the applicant had founded fears for persecution.
In view of these findings, the Regional Court concluded that the applicant did not qualify for the status of refugee and that it had not been established that, if expelled to Libya, he would run a real risk of treatment contrary to Article 3 of the Convention. On the latter point, the Regional Court further held that it had not been established that the applicant, on grounds of a recognition by any public official or informer of the Libyan authorities in the Netherlands, had to fear treatment contrary to Article 3 upon his return to Libya. Insofar as the applicant argued that returned unsuccessful asylum seekers did run such a risk in Libya, the Regional Court noted that, according to the Amnesty International Report, suspected opponents of the Libyan authorities who had applied for asylum abroad did run the risk, when returned, to be tortured. However, the Regional Court did not find it established that the applicant was considered as an opponent by the Libyan authorities.
On 15 March 2000, the applicant was apprehended and placed in aliens’ detention (vreemdelingenbewaring) for the purposes of his expulsion. On 16 March 2000, the applicant filed a second asylum request. An immigration official interviewed him on 20 March 2000 on the reason for this second asylum request.
On 21 March 2000, the applicant filed a request for release from aliens’ detention with the Hague Regional Court sitting in ‘s-Hertogenbosch and to award him compensation for having been unlawfully detained.
On 31 March 2000, the State Secretary declared the applicant’s second asylum request inadmissible in that no other substantial grounds had been submitted by the applicant than those already examined in the proceeding on his first asylum request. The State Secretary decided that the applicant would not be allowed to remain in the Netherlands pending the outcome of a possible appeal.
By decision of 4 April 2000, the President of the Hague Regional Court sitting in ‘s-Hertogenbosch ordered the applicant’s release from alien’s detention, holding that this had been unlawful given the absence of any indication that the applicant had sought ways to prevent his expulsion. The President awarded the applicant an amount of NLG. 2,700 in compensation for having been unlawfully detained.
On 6 April 2000, in violation of an agreement reached with him, the applicant failed to report himself to the Royal Constabulary (Koninklijke Marechaussee) at Schiphol Airport for his expulsion to Tunisia. It appeared that the applicant had left his known address for an unknown destination.
On 26 April 2000, the applicant filed an appeal with the Hague Regional Court sitting in ‘s-Hertogenbosch against the decision of 31 March 2000.
On 13 May 2000, acting upon a complaint filed by neighbouring women that they had been bothered by men living in a certain house in Apeldoorn, the police visited this house. One of the men found there was the applicant, who was subsequently placed in aliens’ detention.
On the same day the applicant filed a third request for asylum. After having been interviewed by an immigration officer on 16 May 2000, his third asylum request was rejected by the State Secretary on 17 May 2000.
The State Secretary noted that this third request was based on, inter alia, an article published in a Dutch regional daily newspaper on a protest action by the applicant’s friends in front of the Apeldoorn police station where the applicant had been detained. In this article, the applicant’s name is mentioned. The applicant claimed that he had obtained this article via a Tunisian friend in the Netherlands to whom this article had been sent by a person who had bought this newspaper at a newspaper stand in Tunisia. The applicant further claimed that the Libyan intelligence authorities were aware of this article. As this claim had remained unsubstantiated, the State Secretary did not find this fact established. Insofar as the applicant relied on other documents, the State Secretary held that these did not constitute substantially new facts or circumstances, or were or could have been submitted during the proceedings on the applicant’s previous asylum requests. The State Secretary finally did not find that the applicant would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if he would be returned to Libya.
The applicant’s expulsion to Libya was scheduled for 22 May 2000. However, physically resisting his expulsion, the applicant was refused access to the plane and he remained in the Netherlands.
On 26 May 2000, the applicant filed a request for release from aliens’ detention with the Hague Regional Court sitting in Haarlem.
In the meantime a new date for the applicant’s expulsion had planned, namely for 3 June 2000. This expulsion was cancelled as his passport could not be found. It was found again on 7 June 2000.
On 19 June 2000, the Hague Regional Court sitting in Haarlem rejected the applicant’s request for release from aliens’ detention.
On 20 July 2000, the Hague Regional Court sitting in Zwolle rejected the applicant’s appeal against the State Secretary’s decision of 31 March 2000.
In its decision of 3 August 2000, the President of the Hague Regional Court sitting in Zwolle accepted the applicant’s appeal against the State Secretary’s decision of 17 May 2000 on the applicant’s third asylum request and quashed this decision on grounds of a failure to state sufficient reasons for holding that the new documents submitted by the applicant – i.e. an article from a Libyan newspaper about the execution of seven Libyan nationals, a judgment and arrest warrant from Libya in connection with the applicant’s conviction of anti-government activities, the publicity around his case in the Netherlands, his conversion to Christianity and the worsened situation in Libya – did not constitute substantially new facts or circumstances, or were or could have been submitted during the proceedings on the applicant’s previous asylum requests.
However, as to the general situation in Libya, the President held that this point had already been examined in the proceedings having resulted in the decision of 10 February 2000 and that, since then, this situation had not seriously worsened.
The President further has doubts as to the value of the Libyan documents submitted by the applicant in that – in the first place – it had remained unclear how the applicant had obtained these “very secret” documents and also in the course of the hearing before the Hague Regional Court the applicant was unable to give a satisfactory explanation on this point. Secondly, these documents were presented as a judgment and arrest warrant against the applicant whereas it appeared from the translation that in fact it concerned an “information form” not disclosing the existence of a conviction. Finally, even assuming the veracity of the applicant’s claim that it dates back to 1998 but that he did not think that this would be needed for his asylum request, the President concluded that on that ground it could not be regarded as a new fact.
The President further consider rather incredible the applicant’s account that the Dutch regional newspaper article would have been found at a petrol station in Tunisia. The applicant’s subsequent account that this newspaper would have been bought at a newspaper stand in Tunisia was even more incredible. The President concluded that, in any event, it had not appeared that the Libyan authorities would have become aware of the contents of the article. The President further rejected as speculative, the applicant’s argument that he had become known to Libyan security officials who were in the Netherlands in connection with the Lockerbie trial. On this point, the President further considered that it had not appeared that the applicant had continued the activities undertaken in this country of origin. The President added that it would be unacceptable when an alien, whose personal history in itself did not give rise to an assumption of a founded fear for persecution, would be able to make a valid claim to asylum on the basis of subsequent activities that would have attracted attention. A risk thus created remains in principle to be borne by the person concerned.
As regards the applicant’s conversion to Christianity, the President noted that this had taken place more than two years ago and that therefore this argument could have been raised in the proceedings on the applicant’s first asylum request. As regards the Libyan newspaper article, the President held that this article did not concern the applicant and that there was no indication that his personal situation was comparable to that of the seven persons referred to in this article.
The President, therefore, concluded that the applicant did not meet the requirements for granting him refugee status and that there was no real risk of that he would be subjected to treatment contrary to Article 3 of the Convention if he would be expelled to Libya. For these reasons, the President decided that, although the decision of 17 May 2000 was quashed, its legal consequences were to remain entirely intact.