ITEMID: 001-24037
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: RAMOS ANDRADE v. the NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Alcidia Ramos Andrade, has both Netherlands and Cape Verdean nationality. She was born in 1966 and lives in Rotterdam. She was represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant moved from the Cape Verde Islands to the Netherlands on 24 October 1993. Her daughters Deisy Lara, born in 1988, and Dercilene, born in 1990, stayed behind in the care of the applicant’s mother. According to the applicant, the girls’ biological father, Mr T. Fortes Nascimento, has never had any involvement with his daughters’ lives; he is currently living in Luxembourg.
On 16 March 1994 the applicant applied for a residence permit (verblijfsvergunning) enabling her to reside in the Netherlands with her partner Mr V.V., a Netherlands national. This request was refused. The applicant’s subsequent objection (bezwaar) and appeal (beroep) were declared inadmissible on 22 May and 21 November 1995 respectively.
Since 1995 the applicant has been living with Mr L. da L., a Netherlands national. On the basis of this relationship she was granted a residence permit on 4 September 1995.
On 28 November 1996 the applicant lodged a request for a provisional residence visa (machtiging tot voorlopig verblijf) on behalf of her daughters Deisy and Dercilene. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights. The applicant submitted that she had visited the girls in the summer of 1996, together with her partner Mr L. da L. On this occasion she had had to conclude that her mother was physically and mentally no longer capable of looking after Deisy and Dercilene: the girls were being left to their own devices and were, even by local standards, living in unfavourable conditions. The applicant referred to a doctor’s declaration according to which her mother was suffering from a chronic illness and was indeed incapable of looking after children. She further submitted that she had no other relatives living in the Cape Verde Islands.
The requested provisional residence visa was refused by the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) on 21 April 1997. The Minister was of the opinion that from 1993 Deisy and Dercilene no longer actually belonged to the applicant’s family unit (gezin). It was further held that the refusal of the visa did not constitute a breach of Article 8 of the Convention. The applicant’s objection against this decision, filed on her behalf by a lawyer, was declared inadmissible by the Minister on 1 August 1997 as no grounds for the objection had been submitted. Although possible, no appeal was lodged against this decision.
On 8 October 1997 the applicant lodged a new request for a provisional residence visa on behalf of her daughters. She argued that the close family ties (gezinsband) between her daughters and herself had always continued to exist: she had remained in contact with them, both through letters and through telephone conversations, and she had also contributed financially and materially to her daughters’ care and upbringing. The reason she had not asked to be reunited with her children soon after her arrival in the Netherlands was due to the fact that her then partner, Mr V.V., had informed her that this would not be possible. The applicant submitted another medical declaration, dated 29 August 1997, according to which her mother was suffering from advanced spondylarthritis of the spine as a result of which she was incapable of caring for minor children.
Considering that the new application for a provisional residence visa contained neither new facts nor new circumstances, the Minister of Foreign Affairs rejected it on 11 December 1997 with reference to his previous decisions.
The applicant and Mr L. da L. were married on 27 July 1998.
On 24 September 1998 a hearing on the applicant’s objection against the Minister’s decision was held before an official committee (ambtelijke commissie). At this hearing, the applicant stated that when she had visited her daughters in 1996, they had only just left hospital where they had been admitted after their grandmother had used massage oil in the preparation of food – this had happened because the applicant’s mother was illiterate. She further clarified that it had always been her intention to send for her children as soon as she had a residence permit. Her first partner in the Netherlands had not wanted her to bring the girls to the Netherlands, in addition to telling her that it would not be possible.
The applicant’s objection was rejected on 20 October 1998. The Minister held that children who had stayed behind in the country of origin could only then be considered as continuing to belong to their parent’s family unit if that parent had attempted as soon as reasonably possible to have the children join him or her by means of an application for family reunion. The applicant had not provided a plausible explanation as to why she had waited until 28 November 1996 before applying for a provisional residence visa. It had further not been established that the applicant had made a substantial contribution to the cost of her daughters’ care and upbringing. Neither had it appeared that the applicant – who had only once visited her children since moving to the Netherlands – had continued to exercise parental authority or that she had taken any important decisions relating to their upbringing. For these reasons, the Minister concluded that the children had become integrated in the family unit of their grandmother. The refusal of a provisional residence visa was not contrary to Article 8 of the Convention: there was no interference with the right to respect for family life since the applicant’s children were not deprived of a residence permit which had enabled them to exercise family life in the Netherlands, and neither was the State under a positive obligation to grant the girls residence so as to enable the applicant to develop family life with them in the Netherlands.
On 5 March 1999 the applicant obtained Netherlands nationality.
The applicant appealed the Minister’s decision of 20 October 1998 to the Regional Court (arrondissementsrechtbank) of The Hague sitting in Haarlem. Following a hearing, the Regional Court rejected the appeal on 2 June 1999. It agreed with the Minister that the close family ties between the applicant and her daughters had ceased to exist. According to the Regional Court, the period of time between the applicant’s departure from the Cape Verde Islands and the first application for a provisional residence visa for her daughters had been of such duration that it could not be said that the situation of the children living with their grandmother was only temporary. The fact that she had not applied for family reunion sooner because her first partner in the Netherlands was opposed to it, indicated that the applicant had let the relationship with Mr V.V. prevail over her ties with her daughters. The Regional Court also found that the refusal of a provisional residence visa was not contrary to Article 8 of the Convention, having regard to the fact that it had not appeared that there were any objective impediments preventing the applicant and her daughters from continuing their family life as they had already been doing for a considerable number of years. In this context it attached relevance to the fact that the manner in which the applicant and her children exercised family life was due to the applicant’s own choice to leave her daughters behind in the Cape Verde Islands.
Since moving to the Netherlands, the applicant has regularly transferred money to her mother in the Cape Verde Islands in order to pay for her daughters’ upbringing. In addition, once every four months she has sent goods such as clothing, shoes, food, materials for use in school and, on one occasion, glasses. She has kept in contact with her daughters by telephone and, less frequently, by mail.
At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1994 (“the Act” - Vreemdelingenwet 1994). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case.
As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa (machtiging tot voorlopig verblijf). Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit.
The Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds.
The admission policy for family reunion purposes was laid down in Chapter B1 of the Aliens Circular 1994 (“the Circular” - Vreemdelingencirculaire 1994). It provided that the following persons, where relevant, may qualify for family reunion if certain conditions (relating to matters such as public policy and means of subsistence) are met:
– a person’s spouse,
– a minor child born of the marriage who actually belongs to the family unit (gezin), and
– a minor child born outside the marriage who actually belongs to the family unit (e.g. a child of one of the spouses from a previous marriage or a foster child).
The phrase “actually belonging to the family unit” (“feitelijk behoren tot het gezin”) used in Netherlands law only partly overlaps with the term “family life” in Article 8 of the Convention. The former is understood to mean, for instance, that the close family ties (gezinsband) between the child and its parents whom it wishes to join in the Netherlands already existed in another country and have been maintained. For the rest, the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case. Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation, the way in which the relationship between parent and child has been developed during the separation, the parent’s involvement in the child’s care and upbringing, custody arrangements, the amount and frequency of the parent’s financial contributions to the child’s care and upbringing, the parent’s intention to send for the child as soon as possible and his/her efforts to do so, and the length of time that the child has lived in a family other than with the parent. The burden of proving that the close family ties between parent and child have not been severed rests with the parent residing in the Netherlands. The longer the parent and child have been separated, the heavier the burden of proof on the person in the Netherlands becomes. It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the Netherlands sooner.


ITEMID: 001-5907
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: OKONKWO v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Jude Okonkwo, born in 1963, was a Nigerian national until 1995 and is now stateless. He is currently living in Austria. He is represented before the Court by Mr G. Deinhofer, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant went to Austria in 1985 and was legally resident there. In March 1992 he married an Austrian national with whom he has had two children, born in 1992 and 1994 respectively. In June 1993 the applicant requested Austrian citizenship.
On 18 October 1994 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) convicted the applicant of attempting to put into circulation large amounts of narcotic drugs, as well as certain minor offences under the Narcotic Drugs Act, and sentenced him to twenty months’ imprisonment.
On 31 March 1995 the applicant renounced his Nigerian nationality in order to be able to obtain Austrian nationality.
On 3 August 1995, the Vienna Federal Police Authority (Bundespolizeidirektion) issued an unlimited residence prohibition against the applicant under section 18 §§ 1 and 2 of the Aliens Act 1992 (Fremdengesetz 1992).
On 27 September 1995 the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the applicant’s appeal. Referring to the applicant’s living with an Austrian national and their having two children, it found that the residence prohibition constituted an interference with the applicant’s right to respect for his private and family life. However, having regard to the serious nature of the offences committed by him, it was necessary for the aims set out in Article 8 § 2 of the Convention, namely for the prevention of crime and the protection of health and public safety.
On 14 February 1996 the Vienna Federal Police Authority detained the applicant with a view to his expulsion. It requested the Nigerian embassy to issue a travel document, which was refused on the ground that the applicant had renounced his Nigerian nationality. He was released on 7 March 1996 as his expulsion could not be carried out due to his statelessness.
On 18 July 1996 the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat) found, upon the applicant’s complaint, that his above detention had been unlawful. It noted that, pursuant to section 41 of the Aliens Act 1992, an alien could be detained if this was necessary, inter alia, for securing his deportation. The applicant was stateless and his expulsion to Nigeria was, thus, impossible. The Vienna Federal Police Authority had been informed about the applicant’s statelessness well before 14 February 1996. It followed that, from the outset, his detention could not possibly have served the purpose of securing his deportation.
On 26 February 1996 the Constitutional Court refused to deal with the applicant’s complaint concerning the residence ban as it lacked sufficient prospects of success.
On 30 April 1996 the Administrative Court dismissed the applicant’s complaint. The decision was served on 22 May 1996.
The applicant still lives in Austria. His request for Austrian citizenship remained unsuccessful and he is, according to his own submissions, still stateless. He and his wife divorced in April 1996. The applicant submits that they are planning to remarry but are prevented from doing so as he has no passport. A number of requests to have the residence ban quashed under the Aliens Act 1997, which has meanwhile entered into force, were dismissed.


ITEMID: 001-4615
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: COCCHIARELLA v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1933 and living in Guidonia (Rome).
He is represented before the Court by Mr Giovanni Battista Petrocchi, a lawyer practising in Tivoli (Rome).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a small company (“AVIO LACO snc di Luciano Cocchiarella”) which deals in aeroplanes and relevant spare parts.
In 1979 and 1980, the applicant purchased a plot of land in the vicinity of the Guidonia airport with a view to building a hangar on it. There being no fences around the plot of land, its boundaries in respect of the Guidonia airport were not marked.
In October 1981, the applicant's company obtained a building permit from the Guidonia town council for building the hangar.
On 1 June 1982, the town council informed the applicant that his building permit had been suspended, as the Air Force claimed to be the legitimate owner of the plot of land.
The proceedings against the Ministry of the Defence
As a consequence, on 15 March 1982 the applicant applied to the Rome Magistrate’s Court, in order to have his right of property on the plot of land at issue acknowledged and the relevant boundary assessed. By a decision of 3 November 1982, the Rome Magistrate’s Court dismissed the case for lack of jurisdiction.
By a writ served on 18 March 1983, the applicant summoned the Italian Ministry of the Defence to appear before the Rome District Court, which, by a judgment of 6 July 1984, acknowledged the applicant's right of property on the plot of land and assessed the relevant boundary. The court however refused the applicant’s request to mark the boundaries of the plot of land, on the ground that, given that the Air Force had de facto decided to use the plot of land as a part of the airport, the marking of boundaries would have influenced this decision, which was outside the scope of jurisdiction of a civil court (the administrative courts being exclusively competent to withdraw or amend an administrative decision).
The appeal lodged on 15 October 1984 by the Ministry of the Defence against this decision was rejected by the Rome Court of appeal by a judgment issued on 24 September 1986 and filed with the Registry on 20 October 1986.
The appeal on points of law lodged by the Ministry against the appellate court’s decision was rejected by the Court of Cassation by a judgment issued on 12 December 1989 and filed with the Registry on 26 March 1991.
The proceedings to recover possession of the plot of land
In the meantime, the Air Force had let the applicant's plot of land to a farmer, A.I.
In 1987, the applicant instituted civil proceedings (azione di reintegrazione) against A.I., in order to recover possession of his property.
By an interlocutory decision of 3 September 1987, the Tivoli Magistrate’s Court ordered A.I. to vacate the plot of land.
The proceedings were then pursued at the hearing of 14 January 1988. An expertise was carried out. The Ministry of Justice intervened in the proceedings claiming to have authorised A.I. to occupy the plot of land; it claimed further that the proceedings could not be
pursued against a State administration.
On 17 February 1990 the bailiff appointed by the Tivoli Magistrate’s Court in order to enforce the latter's decision of 3 September 1987 requested the Air Force to vacate the applicant's plot of land; the commanding officer refused on the ground that no relevant orders had been given by his senior officers.
By a judgment of 24 April 1990, filed with the Registry on 30 June 1990, the Magistrate’s Court refused the applicant’s claims, withdrew its own interlocutory decision of 3 September 1987 and ordered the applicant to refund the opponents’ legal costs.
On 20 April 1990 the applicant’s company summoned the Ministry of the Defence to appear before the Rome District Court with a view to being compensated for the financial losses incurred on account of the occupation of its plot of land.
By a judgment of 10 January 1997, the Rome District Court ruled in the applicant’s company’s favour and ordered the Ministry of the Defence to pay the applicant’s company the sum of 200,000,000 lira for pecuniary damage in connection with the occupation of the plot of land.


ITEMID: 001-23658
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: HAMIDOV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Iskender Hamidov, is an Azerbaijani national, who was born in 1948 and lives in Baku. He is represented before the Court by Mr Vidadi Mahmudov, a lawyer practising in Baku.
The applicant is a former Minister of Internal Affairs. He was arrested in 1995 on charges of embezzlement of public funds, abuse of power and assault on a journalist. On 15 September 1995 the Supreme Court sentenced him to 14 years’ imprisonment. The judgment was final and was not subject to appeal according to the criminal law in force at the material time.
Following the relevant changes in domestic law and in the light of Azerbaijan’s undertaking to the Council of Europe to review the cases of political prisoners, on 26 December 2001 the Prosecutor General lodged an application, requesting the court to allow the applicant’s case to be considered by an appellate court. On 6 February 2002 the Appeal Court granted the prosecutor’s request and allowed an appeal to be lodged against the judgment of the Supreme Court of 15 September 1995. On 29 May 2002 the criminal proceedings were re-opened. The new trial ended on 1 July 2003 with the judgment of the Appeal Court, partially amending the Supreme Court’s judgment of 15 September 1995 in favour of the applicant. The applicant’s guilt was maintained but the term of imprisonment was reduced to 11 years. The applicant did not appeal against this judgment to the Supreme Court.
In September 2002, in the course of the new trial proceedings before the Appeal Court, the applicant brought an action against the prison authorities with a local court in Baku. He claimed that, according to the Criminal Procedure Code of the Republic of Azerbaijan, an accused, whose case is under consideration on appeal, should not be detained for more than seven months. He asked the court to order the prison authorities to release him.
On 28 October 2002 the Garadagh District Court dismissed the applicant’s request. The court observed that the applicant had been sentenced by the Supreme Court’s judgment of 15 September 1995 to 14 years’ imprisonment. That judgment was final and was not subject to appeal at that time. Therefore, the applicant’s current imprisonment should be considered as an execution of the judgment in force and he is kept in prison as a convict not an accused. According to the domestic criminal procedure, the reopening of the case did not change the status of the applicant.
The applicant appealed against this decision to the Appeal Court. He asked the court to quash the decision of the lower court and to recognise his detention as unlawful. On 6 December 2002 the Appeal Court dismissed the applicant’s appeal and upheld the decision of the Garadagh District Court. The applicant did not appeal against this decision to the Supreme Court.
1. The Constitution of the Republic of Azerbaijan of 1995
Article 65 reads as follows:
“Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction reviewed by a higher tribunal or to seek pardon or lightening of his penalty.”
2. Code of Criminal Procedure of the Republic of Azerbaijan of 2000
Article 158 § 5 reads as follows:
"The period for detention of the accused person whose case is under consideration before the first and appeal instances courts shall not exceed:
seven months with respect to grave crimes..."
3. The Law on the Application of the new Criminal Procedure Code of the Republic of Azerbaijan of 2000
Article 7 § 5 reads as follows:
“The judgments and other final court decisions which were taken under the old Criminal Procedure Code of the Republic of Azerbaijan before 1 September 2000 may be appealed before the appellate instance court or the Supreme Court of the Republic of Azerbaijan.”
Article 10 reads as follows:
“The new Criminal Procedure Code of the Republic of Azerbaijan enters into force as from 1 September 2000.”


ITEMID: 001-90594
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF AYHAN ERDOĞAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 10 - Freedom of expression -{General}
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1952. He is a practising lawyer and lives in Istanbul.
5. On an unspecified date the applicant, on behalf of his client Mr O.M., filed an action with the Istanbul Administrative Court seeking the annulment and suspension of execution of a competition to fill 49 posts announced in the Akit newspaper on 10 December 1997 by the office of the mayor of the Ümraniye district in Istanbul. In his petition, the applicant stated, inter alia, that 111 out of 137 workers who had been dismissed on 13 June 1994 had won their cases before the Administrative Courts but despite this fact they had not been reinstated. In this regard, the applicant submitted that the municipality had refused to reinstate 20 of the workers on the ground that there were no available posts. As to the other 91, they had been reinstated for a day before being dismissed again. The applicant complained that pending another set of administrative proceedings against the Municipality regarding a competition announced in the same newspaper on 30 March 1997 for 49 posts, the Municipality had announced this new competition, through which it was aiming to fill the available posts, rendering impossible the enforcement of the court judgments in favour of the dismissed employees, including his client. He further claimed that the vacancy notice had been published only in the editions of Akit which were distributed to various associations affiliated with the Refah party and not in the normal edition of Akit as distributed in Istanbul that same day.
6. In one paragraph of his petition, the applicant made the following remark:
“As stated by political historians, the most dangerous cruel [person] (zalim) in the world is the one who considers himself and his acts as fair or who presents himself as such. The elected head of the accused administration, who has placed my clients in their current situation, is such a cruel [person](zalim) and a bigot (yobaz) with no regard for the rule of law (hukuk tanımaz).”
7. On 24 April 1998 Mr Bingöl, mayor of Ümraniye and member of the Refah party, brought an action against the applicant claiming compensation for the damage he had incurred as a result of the applicant’s serious attack on his honour and integrity.
8. In the course of the proceedings before the Üsküdar Civil Court of First Instance (hereafter the “Üsküdar Court”), the applicant unsuccessfully asked the court to appoint expert witnesses to analyse the impugned words and to hear a number of witnesses. In his written observations, the applicant maintained, inter alia, that his statements had not been an attack against Mr Bingöl but mere observations, since there were documents proving to what degree the latter had acted in accordance with the laws, the Constitution and ethics over the previous five years. He made a number of accusations regarding Mr Bingöl’s actions as mayor and referred to the fact that the latter and his administration had been the subject of media attention many times. The applicant stated that he had used the impugned words in the course of his defence duties; it had not been his aim to insult Mr Bingöl. He had referred to the plaintiff as “cruel” because the dismissals had had serious adverse effects on the lives of his 137 clients. He had used the word “bigot” as a reference to an intolerant person. In this connection, the applicant also referred to the reasons voiced by the Constitutional Court when it decided to ban the Refah party. The applicant also accused the plaintiff of misleading and lying to the domestic courts.
9. In his written observations Mr Bingöl claimed, inter alia, that the applicant’s accusations were false and unfounded, that he had repeated his insulting remarks before the Üsküdar Court and that this attack on his personality had transgressed the standards and boundaries of objective debate.
10. On 27 September 1999 the Üsküdar Court ordered the applicant to pay compensation to Mr Bingöl in the amount of 2,500,000,000 Turkish liras (TRL - approximately 5,200 euros [EUR]) plus interest at the statutory rate applicable at the date of the court’s decision. The Üsküdar Court considered that the word yobaz used by the applicant meant a person “whose religious beliefs were so extreme as to cause discomfort to other persons” and a person who was “provocative, vulgar and unsophisticated”. The word was used in daily life to describe an “unlikeable, ignorant and vulgar” person. In any event, the applicant’s written submission, when read as a whole, had employed “sharp and harsh” language. According to the Üsküdar Court, whether or not the applicant had had the intention to insult the mayor was irrelevant; what was important was how the public would interpret those words. After all, Mr Bingöl was the elected mayor of a district where one million people lived. The applicant appealed.
11. On 22 February 2000 the 4th Chamber of the Court of Cassation’s Civil Division held a hearing and, by a majority, quashed the Üsküdar Court’s decision of 27 September 1999 on the ground, inter alia, that the applicant’s witnesses had not been heard. The president of the Chamber dissented.
12. On 14 December 2000 the Üsküdar Court, considering that hearing the applicant’s witnesses and examining the administrative court’s case file would not have changed the outcome, insisted on its decision of 27 September 1999. The applicant appealed again.
13. On 20 March 2002 the Grand Chamber of the Court of Cassation’s Civil Division rejected the appeal and upheld the Üsküdar Court’s decision of 27 September 1999. The court noted that there was no dispute that, inter alia, the municipality headed by Mr Bingöl had failed to execute certain court judgments. However, it remained to be determined whether the words used by the applicant in the course of the administrative proceedings had a valid basis and whether these words constituted an attack against Mr Bingöl’s personal rights. In this connection, it considered that the applicant had overstepped the standards and boundaries of objective debate by using the terms “bigot”, “cruel” and “no regard for the rule of law”. The applicant had attacked Mr Bingöl’s personal rights. It also considered that the sanctions for the non-execution of a court decision – of which the mayor had been accused – were provided for by statute and that this could not be considered to be a valid reason for the applicant to cross the legally permissible boundaries and use the words he had. Finally, it held that listening to witnesses or examining the case file before the administrative courts would not have changed the outcome. The Grand Chamber of the Court of Cassation’s Civil Division also decided to remit the case to the 4th Chamber of the Court of Cassation’s Civil Division for an examination of the applicant’s complaints concerning the excessive amount of compensation. A request by the applicant for the review of that decision was rejected on 25 September 2002.
14. On 16 January 2003 the 4th Chamber of the Court of Cassation’s Civil Division rejected the applicant’s appeal concerning the amount of compensation, which he considered excessive when account was taken of his resources, and upheld the decision of the Üsküdar Court. A request by the applicant for the review of that decision was rejected on 24 April 2003.
15. The applicant paid the due amount of TRL 9,627,000,000 (approximately EUR 5,637), in three instalments, on 27 February 2003, 20 March 2003 and 8 May 2003 respectively.
16. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Saygılı and Others v. Turkey (no. 19353/03, §§ 16-17, 8 January 2008), and Turhan v. Turkey (no. 48176/99, § 20, 19 May 2005).
VIOLATED_ARTICLES: 10


ITEMID: 001-106835
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GÜMÜŞSOY v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
JUDGES: David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1968 and lives in İstanbul.
5. The applicant is the editor and owner of Devrimci Mücadele Birliği (Revolutionary Struggle Union), a monthly political magazine. At about 12.30 p.m. on 29 November 2001, with a search warrant issued by the Istanbul State Security Court, police officers from the Anti-Terrorist Branch of the Istanbul Security Headquarters conducted a search of the journal’s office. An identity check was carried out and the police arrested four persons, including the applicant, who were present in the office at the time. According to the search and arrest report signed by seven police officers, the applicant resisted the officers. He was subsequently handcuffed and put in a minibus to be taken to the Security Headquarters building. The applicant alleged that he had been beaten and insulted in the car by three police officers. In particular, he stated that one officer, A.Ç., had head-butted him and broken his nose.
6. At 7 p.m. the same day the applicant was taken to Haseki Hospital where he was examined by a doctor. In his report, the doctor noted bruises under the applicant’s eyes and swelling on the bridge of his nose. The applicant was transferred to the Ear, Nose and Throat Service for consultation. The doctor examined the applicant at 9 p.m. the same day, noted the injury to the applicant’s nose and requested an X-ray.
7. On 30 November 2001 the X-ray of the applicant’s nose revealed that it was broken.
8. On 3 December 2001 the applicant was examined once again at the State Security Court branch of the Forensic Medicine Institute. The doctor who examined him explained in his report that the applicant had complained that he had been subjected to ill-treatment in police custody. It was reported that the applicant had stated that he was beaten up in the minibus while he was being taken to the Security Headquarters, and that he had been under psychological pressure while he was in police custody. Referring to the Xray of 30 November 2001, which showed that the applicant’s nose had been broken, the doctor concluded that he was unfit to work for ten days.
9. On the same day the applicant was released by order of the public prosecutor.
10. On an unspecified date, the applicant lodged a criminal complaint with the Beyoğlu Public Prosecutor, alleging that he had been ill-treated while in police custody.
11. On 5 December 2001 the applicant was examined once again at the Beyoğlu branch of the Forensic Medicine Institute. It was noted that he had bruising under his eyes and swelling on his nose. In a final report of 14 December 2001, the Beyoğlu branch of the Forensic Medicine Institute, with reference to the X-ray of 30 November 2001, concluded that the applicant’s nose had been broken, and stated that he was unfit to work for fifteen days.
12. On 21 December 2001 the Beyoğlu Public Prosecutor declared lack of jurisdiction and transferred the case file to the Fatih Public Prosecutor’s Office. The Fatih Public Prosecutor conducted two separate investigations into the applicant’s complaints. In file no. 2001/28563, an investigation was commenced in respect of two police officers who had been on duty at the Anti-Terrorist Branch of the Istanbul Security Headquarters on the day of the applicant’s arrest. In connection with this investigation, the public prosecutor gave a decision on 17 January 2002 that he would not prosecute these two officers, for lack of evidence.
13. In file no. 2002/1953, the Fatih Public Prosecutor conducted an investigation into the events which took place during the applicant’s arrest and his transfer to the Security Headquarters building. On 17 January 2002 the Fatih Public Prosecutor decided to transfer the case back to the Beyoğlu Public Prosecutor’s Office. Accordingly, on 15 February 2002, the Beyoğlu Public Prosecutor filed an indictment with the Beyoğlu Criminal Court against seven police officers, accusing them of ill-treating the applicant under Article 245 of the former Criminal Code. The applicant joined the proceedings as a civil party.
14. During the proceedings, the applicant lodged an objection, stating that the case should be dealt with by the Beyoğlu Assize Court, as the police officers’ actions had amounted to torture. On 17 March 2002 the Beyoğlu Criminal Court declared that it did not have jurisdiction and transferred the case to the Beyoğlu Assize Court. In a hearing held on 17 September 2002, the applicant identified police officer A.Ç. as the person who had broken his nose.
15. On 6 April 2007, on the basis of medical reports and witness statements, the Beyoğlu Assize Court found it established that Officer A.Ç. had broken the applicant’s nose by head-butting him. Considering that the use of force had not been proportionate, the court found the police officer guilty of ill-treating the applicant under Article 245 of the former Criminal Code. Having regard to the duration of the treatment, the court decided that the act did not amount to torture, since it had not been systematic. In conclusion, A.Ç. was sentenced to six months’ imprisonment and banned from public service for three months. The court then converted his sentence to a fine, having had regard to the fact that he did not have a criminal record. Furthermore, the court decided to suspend his sentence under Law no. 647, considering that he was unlikely to break the law again. The other six police officers were acquitted of the charges against them.
16. The applicant appealed against this decision.
17. On 24 February 2010 the Court of Cassation, noting that the statutory time-limit for the offence had expired, decided to drop the criminal proceedings against the accused police officer.
18. A description of the relevant domestic law and practice in force at the material time can be found in Okkalı v. Turkey (no. 52067/99, §§ 4749, ECHR 2006XII (extracts)), and Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004IV (extracts)).
VIOLATED_ARTICLES: 3


ITEMID: 001-67906
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MERGER AND CROS v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+P1-1 with regard to the inheritance rights;No violation of Art. 14+P1-1 with regard to the capacity to receive assets as a gift;Not necessary to examine Art. 14+8 with regard to the inheritance rights;Violation of Art. 14+8 with regard to the capacity to receive assets as a gift;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicants were born in 1968 and 1936 respectively and live in Paris.
9. The first applicant was born on 6 December 1968 of a relationship which began in 1964 between the second applicant, a widow and the mother of a daughter born in 1957, and Mr R. Merger, a married man and the father of four children born in 1942, 1944, 1945 and 1947. At the time her birth, her father and mother had been living together since 1965. Her father formally acknowledged paternity on 7 December 1973 and she has borne his name since 17 May 1985.
10. On 11 May 1980 the first applicant's father drew up a private deed dividing his movable property between his five children. The document was signed by the four legitimate children and by the father on the first applicant's behalf.
11. On 11 October 1984 he made a manuscript will in which he left to the first applicant the disposable portion of his estate which, pursuant to Article 913 of the Civil Code, came to one quarter. He stipulated that it was to be taken free of his wife's life interest.
12. In a second manuscript will dated 16 June 1985 he stated that he wished the estate to be divided into five parts to be allocated by the drawing of lots in the presence of all his children, for the disposable portion of the estate to pass to the first applicant after an account had been taken of any gifts that had been made and for his wife's life interest to attach only to the share of the four legitimate children. The first applicant was to receive a reversionary pension for the duration of her studies and these were to be paid for if the law so permitted.
13. The first applicant's father died on 12 March 1986 leaving as his heirs his wife, four legitimate children and the first applicant, an illegitimate child conceived while he was bound by marriage to a person other than its mother.
14. A notary was instructed to wind up the estate. He took an inventory at the home on 20 June 1986. The first applicant (who was sitting her baccalaureate that day) was represented by the second applicant, who pointed out that certain movables were missing. The widow laid claim to certain items which she said belonged to her. The total value of the movables listed in the inventory was estimated at 114,175 French francs (FRF).
15. Since an amicable division of the estate proved impossible, the deceased's four legitimate children and their mother brought proceedings against the applicants in the Paris tribunal de grande instance seeking, inter alia, orders setting aside the gift of the disposable portion to the first applicant and the gifts their father had made to the second applicant – which were deemed to have been made to the first applicant – and restricting the first applicant's rights to 10 % of the net estate.
16. The applicants asked the Court, inter alia, to dismiss the claims and to order the claimants to hand over to the first applicant all the movable property she had been allocated on 11 May 1980.
17. In a judgment of 6 November 1992, the tribunal de grande instance found that funds that had been used to purchase a flat in the avenue d'Italie in Paris and a sum of FRF 500,000 were gifts that had been made to the first applicant through an intermediary and set them aside under Articles 908 and 911 of the Civil Code. It added that the value of the property that had been acquired with those gifts had to be brought into account. Relying on those provisions, the tribunal de grande instance ruled that the first applicant was not entitled to more than 10% of the estate and held that the gift of the disposable portion was inoperative. Relying principally on Article 931 of the Civil Code, it held that the deed of division dated 11 May 1980 was null and void as it was not in the correct form and added, in the alternative, that the first applicant could only lay claim to 10% of the movables that were divisible in kind. Lastly, it declared that the first applicant was to receive her share of the estate free of any life interest.
18. The applicants appealed against that judgment. The first applicant completed her studies in December 1993.
19. In a judgment of 24 September 1996, the Paris Court of Appeal transferred the case to the Dijon Court of Appeal, as one of the parties was a judge of the Paris tribunal de grande instance and the other had been admitted to the Paris Bar while the proceedings were under way.
20. In a judgment of 27 November 1997, the Dijon Court of Appeal upheld the judgment of the court below in so far as it had refused to grant the first applicant identical inheritance rights to those of the four legitimate children or to allow her to take the disposable portion and had ruled that the assets of the second applicant – who it noted had lived with the deceased since 1965 – were gifts acquired through an intermediary. Noting that the first applicant was an illegitimate child who had been conceived when her father was bound by marriage to a person other than her mother, it declared her claim to a reversionary pension inadmissible as she was not prepared to abandon her rights to the estate.
21. The applicants appealed to the Court of Cassation.
22. On 4 February 1999 the notary liquidated the estate and drew up the deed of division. The first applicant signed the deed “without prejudice to the appeal to the Court of Cassation which has been served on the parties”. Under the terms of the deed of division, she was required to pay an equalising balance to the other heirs in the French franc equivalent of 236,187 euros (EUR).
23. The second applicant sold her home to pay that balance on behalf of her daughter, who had no property of her own.
24. In a judgment of 3 May 2000, the Court of Cassation dismissed the applicants' appeal.
25. Following that judgment, the equalising balance was duly paid to the other heirs.
26. The relevant provisions of the Civil Code as worded at the material time were as follows:
“Part I: Succession
...
Chapter III: Orders of succession
...
Section III: Rights of descendants to inherit
“Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ascendants, without distinction on grounds of sex or primogeniture, and even if born of different marriages.
The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants.
...
Section VI: Rights of illegitimate children to inherit
Illegitimate children shall, in general, have the same rights to inherit from their father and mother or other ascendants and from their brothers and sisters and other collateral relatives as legitimate children.
Illegitimate children whose father or mother was, at the time of their conception, bound by a marriage to another person shall not prevent such other person from inheriting from the father or mother if he or she would have been entitled to inherit under Articles 765 and 766 below but for their birth.
In such eventuality, irrespective of their number, the illegitimate children shall receive only half of that which would have devolved to the spouse under the aforementioned Articles but for their birth, the calculation being made line by line...
Illegitimate children whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born shall be entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate.
The fraction by which their share of the estate is thus reduced shall revert solely to the children born of the marriage damaged by the adultery. It shall be divided between them in proportion to their share in the estate.
Titre II: Inter vivos and testamentary gifts
...
Chapter II: Capacity to use or receive inter vivos and testamentary gifts
Illegitimate children shall not be entitled to receive by way of inter vivos or testamentary gift from their father or mother a share of the estate in excess of that to which they are entitled under the aforementioned Articles 759 and 760 if the donor or testator was, at the time of their conception, bound by marriage to another person.
An action for abatement may, however, only be brought by the spouse or children of the marriage, as the case may be, and only once the estate has passed to the heirs.
Any disposition to a person without capacity shall be null and void, whether disguised as a contract for consideration or made in the name of intermediaries.
The father, mother, children, descendants, and spouse of a person without capacity shall be deemed to be intermediaries.
...
Chapter III: The portion of disposable assets and abatement
...
Section I: The portion of disposable assets
Gifts, whether inter vivos or testamentary, may not exceed one half of the donor's assets if on his death he leaves only one legitimate child, one-third if he leaves two or one quarter if he leaves three or more.
An illegitimate child whose share in the estate has abated pursuant to Articles 759 and 760 may, if in need, claim maintenance from the estate in exchange for abandoning his or her rights in favour of the heirs.
Such maintenance shall be governed by Article 207-1 of this Code.
The heirs may, however, settle such a claim by granting the applicant a share equal to that which he or she would have received under Article 759 and 760.
...
Chapter IV: Inter vivos gifts
...
Section I : Formal requirements for inter vivos gifts
Any deed providing for an inter vivos gift shall be made before a notary in the ordinary form applicable to contracts; an original shall be kept by the notary, on pain of nullity.”
27. On 4 December 2001 Law no. 2001-1135 of 3 December 2001 “on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession” was published in the Official Gazette. It abolished any difference in treatment of illegitimate children one of whose parents was, at the time of their conception, bound by marriage to another person. It repealed the provisions of the Civil Code (in particular, Articles 759, 760, 908 and 915-2) that gave children whose father or mother was married to another person at the time of their conception less favourable inheritance rights. It also repealed the provisions that protected the spouse alone if he or she was competing solely with such children.
28. The Montpellier tribunal de grande instance held as follows in a judgment of 2 May 2003:
“Since it creates a difference between children's inheritance rights depending on their birth, the application of Article 760 of the Civil Code violates the provisions of the Convention ..., as the European Court recently held (in its judgment of 1 February 2000 in the case which Mr Mazurek brought against the French State).
... Thus, Article 760 of the Civil Code must be disregarded, as it contains provisions that discriminate against children of an adulterous relationship with no properly justified basis and it is inconsistent with the European Convention on Human Rights, which, by virtue of Article 55 of the Constitution, ranks ahead of the provisions of domestic law and, in accordance with settled case-law, is directly applicable by the French courts.”
VIOLATED_ARTICLES: 14
8
P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-59157
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF LEE 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 applicant and his wife are gypsies by birth. They were born and bred in Kent. They have a nomadic lifestyle and have travelled extensively around the south of England in pursuit of work and to attend traditional gypsy social gatherings.
11. Throughout the years, the applicant was prosecuted frequently for illegal encampment. Over a four year period he claimed to have been evicted from more than 40 sites. To rectify this situation, in 1991 he bought a plot of land which measures approximately 0.4 hectares.
12. The applicant’s land was situated on a hillside of the Stour Valley to the east of the village of Chartham. The surrounding land was mostly open agricultural land but in the valley bottom there was mineral working and industrial development. The land contained three caravans, which were occupied by the applicant, his wife, two children and grandchildren. It also had an area for grazing horses and contained a stable. The site was in an area designated within the relevant development plan as a Special Landscape Area where special planning policies applied.
13. The applicant’s grandchildren attended school regularly receiving an education that in the past they frequently had not had the opportunity to receive.
14. The applicant and his family have mainly been employed in agricultural work all their lives. He bought the site with the intention that it would provide a settled home and also a living from market garden produce and horticulture.
15. On 20 November 1992, an enforcement notice was issued by Canterbury City Council (“the Council”), requiring the applicant to cease the use of the land for the stationing of residential caravans. He was given six months within which to remove the caravans.
16. In January 1993, the applicant lodged an appeal against the enforcement notice. An Inspector was appointed by the Secretary of State for the Environment to determine the appeal.
17. On 20 September 1993, the Inspector, in a decision letter, denied planning permission and dismissed the appeal. He stated inter alia:
“6. From my inspection of the site and the surrounding area and from the written representations I consider that the main issues are whether the impact of the residential caravans on the surrounding area is acceptable having regard to relevant planning policies, and also, if the impact is not acceptable whether the stationing of residential caravans is nevertheless justified by the agricultural needs of the proposed enterprise or by the needs of the three gypsy families involved.
7. There are three approved development plans for the area: the 1990 Kent Structure Plan; the 1983 Kent Countryside Local Plan; and the 1982 Stour Valley Countryside Plan. Policy S6 of the Structure Plan imposes a general presumption against development of fresh land in the countryside although policy RS6 recognises that the needs of agriculture may constitute an exception. However even so policy RS1 requires that all development shall be appropriate in location and appearance while policies in all the plans provide that in such Special Landscape Areas as this conserving the landscape will normally have priority over other planning considerations.
8. The site is in a corner of an open field on the southern hillside of the Stour Valley and surrounded by agricultural land. In this position it is highly visible at various points along the Cockering Road below and from the A28 in the valley bottom. It is also visible from footpaths in the vicinity and particularly from one that runs along the back of the site. The group of three caravans within the fenced site is a most conspicuous and alien form of development in this exposed rural location and is in conflict with the character and appearance of its surroundings. An attempt has been made to screen the caravans on the hillside by planting evergreens but many have died. However neither screening nor painting the caravans, as offered, is likely to make the development less obtrusive in such an isolated and open situation, and there is no doubt in my mind that it seriously conflicts with the policies designed to conserve and enhance the countryside. ...
11. ... In my opinion, and on the evidence submitted the proposed enterprise <market gardening and horticulture> even taking into account the further land available is not likely to support the three families who would be engaged in it so as to justify their living on the site.
12. As regards the agricultural need for living on the site, I am not satisfied that the type of horticulture outlined demands living on the site ... I do not doubt that the families wish to continue earning their living from agricultural pursuits but the offer to tie their occupation to agriculture ... does not overcome the lack of agricultural need to live on the site which might justify setting aside the strong amenity objection. ...
13. In support of allowing the development as a gypsy caravan site it is stated that <the applicant> has been evicted from 40 sites over a 4 year period and was exasperated by the Council’s inability to provide suitable sites. He took the opportunity to acquire the present site to provide a permanent home and an income. This <he claims> is in line with the guidance in DOE Circular 28/77 which recognises that even in sensitive locations it may be necessary to accept the establishment of caravan sites or to refrain from enforcement actions until sites are available.
14. The Council recognise that, despite being a ‘designated area’ under the 1968 Act, there is a shortfall of some 22 pitches and further provision needs to be made. A number of sites are being evaluated and in addition the draft local plan contains a policy for permitting gypsies to establish sites on their own land providing it is suitable. The Council do not consider that the Department’s guidance implies that private sites should be allowed without regard to the consequences.
15. Having considered the evidence, I accept that there is a shortfall of pitches in the Canterbury area but I recognise too <the applicant’s> willingness, if not a preference, for providing a small site for the family group and I do not consider it unlikely that a less inappropriate place can be found. While therefore I accept that the loss of the present site would create a need for an alternative, in the circumstances of this case I find that the complete unsuitability of the present site outweighs that need. I have considered whether a temporary permission might be granted for this small group until the Council’s provision of other sites comes to fruition and I have taken account of <the applicant’s> willingness to accept a planning condition restricting the number of caravans on the site so as not to create a precedent for the use of adjoining land. However I can see no way of preventing it from being a precedent if other gypsy families sought to acquire plots of land nearby. ... I am satisfied that even a temporary planning permission could be a signal for the establishment of other sites which would have a very harmful effect on the landscape of this attractive valley. ...”
18. The applicant then applied for permission to use the land for winter stationing of three caravans for residential purposes.
19. On 1 March 1994, after having requested the applicant to explain what change in material considerations had taken place, the Council declined to determine the above application in accordance with Section 70A of the Town and Country Planning Act 1990. The Council did not consider that there were material differences between the planning application for winter stationing of caravans and the applicant’s earlier application.
20. The applicant now lives under the threat of criminal prosecution and forcible eviction.
21. While the applicant had been on a number of occasions offered places on official sites, he refused primarily because the sites in question were in a very poor state. One site, at Broomfield was next to a rubbish tip and the other, at Vauxhall Road, was built on an old sewage bed and adjacent to an operational sewage works and with a steel works adjoining the southern boundary of the site, which operated 24 hours per day. The applicant stated that they were unfit for human habitation (photographs were attached to his application in support of his contention) and that the noise of the steelworks deprived inhabitants of the site of sleep. While the Government disputed before the Commission that the Broomfield site was unfit for habitation, referring to repairs being carried out when required due to the vandalism of occupants, the Government confirmed at the hearing before the Court that this site had now closed. The Government also provided the information that planning permission had been granted for the upgrading and extension of the site at Vauxhall Road and that a grant was made by the Secretary of State for this purpose. The original 16 pitches had now been refurbished, and two further pitches added, at a cost of GBP 495,000. The Council had served a Noise Abatement Notice on the steelworks with a view to improving the residential environment for the gypsy site and discussions were ongoing regarding the creation of a boundary between the two sites.
22. The Government also stated that in 1998 in the Canterbury area there were two official sites comprising 30 pitches (with eight currently vacant) and in addition 28 caravans on authorised private sites and 14 caravans on unauthorised private sites. The July 1999 Department of the Environment figures showed however that the number of authorised private sites had dropped from 28 to 8, the number of public sites fell from 27 to 21, while the number of unauthorised encampments almost tripled from 14 to 38.
23. The applicant stated that planning permission had been given to a non-gypsy to station a caravan on the site adjacent to the applicant’s. Outline planning permission had also been given for a development of 600 residential units 600 yards from his site. The Government have provided information and documents concerning both developments.
Temporary planning permission was granted for two years in August 1994 for a caravan on a site called Larkey Wood Farm. The purpose of this was to enable the owner to establish the viability of his pig unit and the permission limited to occupation by an agricultural worker. Permission was granted recently for a permanent dwelling of the site given the established agricultural need and the owner’s establishment of the viability of his pig farm. In the Inspector’s decision of 17 August 1994, he found that this site did not have as unfortunate effect on the landscape as the applicant’s, though it did detract from the openness of the countryside and the natural appearance of the landscape.
The Government have also explained that in the 1990’s a hospital (St. Augustine’s), which was a large complex of buildings, closed down and it has been considered by the Council as suitable for residential development. The outline planning permission was granted to accommodate 600 houses and took into account the need to landscape the site. The applicant provided photographs of his own site and the Larkey Wood Farm site and the Government provided an aerial photograph identifying the locations of these developments relative to the applicant’s land.
24. 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).
25. 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).
26. 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).
27. 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).
28. 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.
29. 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.
30. 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).
31. 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”.
32. 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”.
33. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).
34. 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).
35. 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).
36. 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.
37. 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”).
38. 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.”
39. The report made numerous recommendations for improving this situation.
40. 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.
41. 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.
42. 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”.
43. 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.
44. 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.
45. 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”.
46. 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).
47. 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...”
48. 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).
49. 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.”
50. 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.
51. 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 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.
52. 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 its 1998 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.
53. 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.
54. 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.
55. In January 2000, the Department of the Environment, Regions and Transport figures for caravans in England 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.
56. 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.
57. 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.”
58. 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.
59. 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.
60. 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. ...”
61. 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; ...”
62. 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.”
63. 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.
64. 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.
65. 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 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 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)
66. 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)
67. 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).
68. Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing 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 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)
69. 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)
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