ITEMID: 001-107725
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF AYANGİL AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicants were born in 1952, 1930, 1950 and 1957 respectively and live in Ankara.
6. On 24 October 1967 the authorities adopted a new local construction plan (imar şuyulandırması) and decided to merge plots nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 and to register them as plot no. 24 in the İncesu neighbourhood in the Çankaya district of Ankara. Previously the applicants’ predecessors had been the owners of plot no. 9. Following the implementation of the said plan, the applicants’ predecessors had kept a share measuring 480 square metres on plot no. 24 (which measures 5280 square metres in total), and owned a two-storey house on the plot in question. Given that the aforementioned decision designated plot no. 24 as a school area and indicated that the buildings on this plot would be expropriated, the applicants’ predecessor, Mr İsmail Yılmaz, moved out of his house in 1969.
7. In a letter dated 26 March 1984 the deputy director of the Directorate of Education attached to the Ankara Governor’s Office (hereinafter “the Directorate”) sent a letter to the applicants’ predecessors, informing them that their building would be expropriated since the Directorate was planning to build a primary school on the land on which it was situated. The Directorate also noted that a commission would proceed to the determination of the value of the applicants’ building and its annexes.
8. Subsequently, the Directorate built the school. However, the Directorate did not conclude the expropriation proceedings for the applicants’ building, which remained in the schoolyard.
9. On 19 April 1995 the applicants’ predecessor filed a petition with the Directorate requesting the return of his plot of land, which had been occupied since the decision of expropriation in 1967 and the construction of the school. He noted that despite the expropriation decision, the authorities had done nothing despite continuing to occupy his plot of land and that this situation had restricted his right to the enjoyment of his property. He therefore asked the authorities to overturn the decision ordering expropriation. It is unknown whether the Directorate replied to the petition.
10. In 2000, after inheriting the property in question, the applicants brought an action seeking a declaratory judgment (tespit davası) before the Ankara Magistrates’ Court to the effect that their building was situated in the schoolyard. The Magistrates’ Court appointed an expert, who found that the building in question was indeed situated in the zone belonging to the İncesu Primary School.
11. The applicants brought an action before the Ankara Civil Court of First Instance against the Ankara Governor’s Office for compensation. They submitted, inter alia, that the Directorate was in actual possession of their property, without having conducted expropriation proceedings, and had failed to compensate them for the damage resulting from the interference with their property.
12. In a letter dated 12 January 2001 the Directorate informed the Ankara Civil Court of First Instance that the Incesu primary school was situated in block no. 8255, plot no. 24, and that the applicants owned a share of that plot measuring 480 out of a total of 5280 square metres. It noted further that, in the local building and settlement plan, plot no. 24 had been designated as a primary school zone and that the building and share of the land of the applicants had not been expropriated.
13. The Ankara Civil Court of First Instance appointed an expert, who conducted an on-site inspection. According to his report of 9 May 2001, the building in question was situated in the schoolyard.
14. On 23 May 2001 the First Instance Court partially granted the applicants’ request for compensation and ordered the Ankara Governor’s office to pay the applicants 99,976,950,917 Turkish liras (TRL). Relying particularly on the annotations in the land registry and the response given by the Directorate as well as other evidence contained in the file, the court found it established that the administrative authorities were in actual possession of the applicants’ property.
15. On 24 December 2001 the Court of Cassation quashed the judgment of 23 May 2001, considering that the Ankara Governor’s office could not be considered to have been in actual possession of the applicants’ building, since the administrative authorities had not prevented the applicants from using the building in question. The Court of Cassation further noted that the fact that the building was in the schoolyard did not necessarily mean that there had been a de facto expropriation, and concluded that the applicants’ request should be dismissed. The case was remitted to the Ankara Civil Court of First Instance.
16. On 21 May 2002 the First Instance Court abided by the Court of Cassation’s decision and dismissed the applicants’ request. In its decision, the court noted that the school building and the building belonging to the applicants were both on plot no. 24, which was used by the applicants themselves. The court therefore found that there had not been a de facto expropriation even though plot no. 24 had been allocated to the primary school in the local building and settlement plan (imar planı).
17. On 4 November 2002 the Court of Cassation upheld the judgment of 21 May 2002.
18. On an unspecified date the applicants requested the rectification of the Court of Cassation’s decision of 4 November 2002, claiming that there were clerical errors as well as errors of law in the decision.
19. On 6 May 2003 the Court of Cassation granted the applicants’ request and decided to rectify the clerical errors.
20. In their observations, the applicants submitted that following the communication of the present to the Government, the authorities had brought road blocks to the school yard with a view to delimiting the school yard from the applicants’ house. In this connection the applicants furnished photos taken on 3 April 2008.
21. In a letter dated 11 April 2008, furnished by the Government, the mayor of the neighbourhood (muhtar) stated that there were currently a number of tenants living in the applicants’ house situated in the yard of the Incesu primary school.
22. According to section 7 of the Expropriation Law no. 2942, as amended in 2001, when an expropriation decision was taken in respect of an immovable property, the administrative authorities shall inform the relevant land registry office for annotation of the said decision in the register. However, if the authority fails to furnish the land registry office, within six months of the annotation, with a document to be obtained from a court indicating that it had determined the price and requested the registration of the immovable property, the land registry office shall automatically remove the annotation.
23. Article 125 § 5 of the Constitution stipulates that the administrative authorities shall be liable to compensate for damage resulting from their actions and acts. Article 13 of Law no. 2577 on administrative procedure provides that any person who has suffered damage as a result of an act committed by the administrative authorities may request compensation from them. In the event of complete or partial rejection of a compensation request, or if no reply has been received within a time-limit of sixty days, the person involved may initiate administrative proceedings.


ITEMID: 001-72205
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF RODRIGUES DA SILVA AND HOOGKAMER v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings
JUDGES: András Baka;Antonella Mularoni;Corneliu Bîrsan;Jean-Paul Costa;Karel Jungwiert;Volodymyr Butkevych;Wilhelmina Thomassen
TEXT: 8. The first applicant was born in 1972 and lives in Amsterdam. The second applicant was born in 1996 and lives in Amsterdam and Uithoorn.
9. The first applicant came to the Netherlands in June 1994, leaving her two sons from a previous relationship, Jean (born in 1990) and Carlos (born in 1992), with her parents. In the Netherlands she lived with her partner Mr Hoogkamer, who was in paid employment at that time. The first applicant submitted that they had looked into applying for a residence permit allowing her to reside in the Netherlands with her partner, but that, owing to the unavailability of documents concerning Mr Hoogkamer's income, such an application had never actually been made.
10. In April 1995 the first applicant's son Carlos joined his mother and Mr Hoogkamer. Her other son Jean remained in Brazil with his grandparents.
11. On 3 February 1996 Rachael, the second applicant, was born to the first applicant and Mr Hoogkamer. The first applicant was invested ipso jure with parental authority (ouderlijk gezag) over Rachael. Rachael was recognised (erkenning) by Mr Hoogkamer on 28 March 1996, as a result of which she obtained Dutch nationality.
12. The first applicant and Mr Hoogkamer split up in January 1997. Rachael stayed with her father, who subsequently applied to the Amsterdam District Court (kantonrechter) seeking to be awarded parental authority over Rachael. The District Court granted the application on 20 February 1997. The first applicant subsequently appealed to the Amsterdam Regional Court (arrondissementsrechtbank) against that decision. The Regional Court requested the Child Care and Protection Board (Raad voor de Kinderbescherming) to examine which attribution of parental authority would be in Rachael's best interests.
13. On 12 August 1997 the first applicant applied for a residence permit which would allow her to reside in the Netherlands, either – depending on the outcome of the proceedings concerning parental authority – with her daughter Rachael, or in order to have access to her. She also made an application on behalf of her son Carlos.
14. The Child Care and Protection Board found, in its report of 26 August 1997, that parental authority should remain with Mr Hoogkamer. In view of the likelihood of the first applicant having to return to Brazil, awarding her parental authority over Rachael could lead to a break-off in contact between Rachael and her father and also between Rachael and her paternal grandparents, who were very important to her. It was felt that this would be a traumatic experience for Rachael, who had her roots in the Netherlands and whose bonding with all the persons concerned had taken place in that country.
15. In a decision of 26 November 1997, the Amsterdam Regional Court nevertheless quashed the decision of the District Court and awarded the first applicant parental authority over Rachael. Mr Hoogkamer lodged an appeal on points of law with the Supreme Court (Hoge Raad).
16. On 12 January 1998 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the first applicant's application for a residence permit. The first applicant lodged an objection (bezwaar) against this decision. At the hearing on this objection before an official committee (ambtelijke commissie) on 27 May 1998, it was stated on behalf of the first applicant that she worked (illegally, as she was not in possession of a residence permit allowing her to do so) from Monday to Thursday and that on those days Rachael stayed either with her father or with her grandparents. Rachael stayed with her mother on the remaining days of the week.
17. On 12 June 1998 the Deputy Minister of Justice dismissed the objection, holding that, even if account was taken of Rachael's right to reside in the Netherlands and to be brought up and educated there, the interests of the economic well-being of the country outweighed the interests of the first applicant. Although the first applicant did not claim welfare benefits, she did not pay taxes or social security contributions either, and there were sufficient numbers of nationals of European Union member States or aliens residing lawfully in the Netherlands available to fill the post she was occupying. The general interest also prevailed over Mr Hoogkamer's interest in being able to lead his family life with Rachael in the Netherlands. In this context it was noted that, at the time Mr Hoogkamer started his relationship with the first applicant, the latter had not been entitled to reside in the Netherlands. He had thus accepted that family life with Rachael might have to be enjoyed elsewhere or in a different manner. It was further noted that Mr Hoogkamer did not make a substantial financial contribution to Rachael's care and upbringing since he only took care of those expenses on the days Rachael stayed with him and, as he was in receipt of welfare benefits, those costs were borne by public funds.
18. The first applicant lodged an appeal against this decision with the Regional Court of The Hague, sitting in Haarlem.
19. On 30 October 1998 the Supreme Court quashed the Amsterdam Regional Court's decision of 26 November 1997 in the proceedings concerning parental authority and referred the case to the Amsterdam Court of Appeal (gerechtshof).
20. The Regional Court of The Hague, sitting in Haarlem, dismissed the appeal against the refusal to grant the first applicant a residence permit. In its decision of 12 February 1999, the Regional Court held that Article 8 of the Convention did not oblige national authorities to ensure that Rachael's parents would not have to choose between leaving Rachael with her father in the Netherlands or letting her go to Brazil with her mother. Both these options were considered to be feasible. According to the Regional Court, the fact that Rachael would have to be without either her father or her mother was, strictly speaking, the result of the parents' choice to conceive a child at a time when the first applicant was not allowed to reside in the Netherlands. No further appeal lay against this decision.
21. On 28 June 1999 a hearing took place before the Amsterdam Court of Appeal in the proceedings concerning parental authority, during which an officer of the Child Care and Protection Board told the court that the Board's report of 26 August 1997 remained pertinent and that it was in Rachael's best interests for the status quo – with Mr Hoogkamer having parental authority over her – to be maintained. In its decision of 15 July 1999 the Amsterdam Court of Appeal upheld the decision of the Amsterdam District Court of 20 February 1997 awarding parental authority over Rachael to Mr Hoogkamer. The Court of Appeal accepted that Mr Hoogkamer, supported by Rachael's grandparents, was sufficiently capable of providing Rachael with the necessary upbringing and care, and that he was indeed doing so in practice. It was of the opinion that the submissions made by the first applicant in support of her argument that Rachael's interests would be better served if parental authority were awarded to her – even if this meant Rachael living in Brazil without contact with her father and grandparents – were of insufficient weight compared to the possibilities the father had to offer and was offering. The first applicant lodged an appeal on points of law against this decision, which was dismissed by the Supreme Court on 27 October 2000.
22. Despite having received a letter dated 8 July 1999 from the local police informing her that she had to leave the Netherlands within two weeks, the first applicant remains in the Netherlands. She works from Monday to Friday. Rachael stays with her at the weekend and with her paternal grandparents during the week. This arrangement is confirmed in a letter dated 20 March 2002 written by Rachael's grandparents to the applicants' legal representative:
“The access arrangement we have concluded with [the first applicant], the mother of our granddaughter Rachael Hoogkamer, is fully satisfactory for all parties. According to the arrangement, Rachael stays with us during the week. On Friday evening we take her to her mother and collect her again late on Sunday afternoon. No disagreement whatsoever has arisen on this point in the past years. We further confirm that the weekend visits of our granddaughter to her mother pass off in a very pleasant fashion and that she enjoys telling us about them. In other words, the close contact with her mother has a beneficial effect on our granddaughter.”
23. In January 2002 the first applicant applied for a residence permit allowing her to reside in the Netherlands with her new Dutch partner. In this application the first applicant indicated that Rachael was being brought up partly by her grandparents and partly by her new family. The application was rejected on 18 April 2002 as the first applicant was not in possession of the required temporary residence permit (machtiging tot voorlopig verblijf). The first applicant did not challenge this decision.
24. The second son of the first applicant, Jean, has been living with his mother in the Netherlands since February 2002.
25. Parental authority comprises the duty and the right of a parent to care for and bring up his or her child (Article 247 § 1 of the Civil Code (Burgerlijk Wetboek)). The parent invested with parental authority is the child's statutory representative (wettelijk vertegenwoordiger) and administers the child's possessions (Article 245 § 4 of the Civil Code).
26. At the material time, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). On 1 April 2001 a new Aliens Act came into force, but this has no bearing on the present case.
27. The government pursues 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 out of international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds.
28. The admission policy for family reunion purposes was laid down in the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire 1994). These provided that the spouse, the partner, a minor child born of the marriage or relationship and actually belonging to the family unit (gezin), and a minor child born outside the marriage but actually belonging to the family unit could be eligible for family reunion if certain conditions (relating to public order, accommodation and livelihood) were met. In the context of family reunion with other family members (so-called extended family reunion), such other members actually belonging to the family unit might also be eligible if they would otherwise suffer disproportionate hardship.
29. 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 alien in question must belong to the family unit with which he or she intends to live in the Netherlands
VIOLATED_ARTICLES: 8


ITEMID: 001-59155
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF BEARD v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 14
JUDGES: Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza
TEXT: 10. The applicants are gypsies by birth. All their lives, they have moved between official sites and unofficial stopping places, mostly in the Lancashire area.
11. The applicants regard themselves as being Lancashire folk. The first applicant is a carpet seller and does most of his business in Lancashire. Both their children were born in Lancashire, and at present their daughter lives with them and works nearby. Their son travels independently, but stays with them frequently.
12. Over the ten years before 1986, the applicants had to move between a number of sites in Lancashire, often staying in unofficial stopping places. As they wanted to set up a family site, in 1986 they bought a piece of land, known as Cinderbarrow Malt Kiln, Yealand Redmayne, Carnforth in Lancashire. The site is 0.365 hectares in area, and is positioned in the countryside between the M6 motorway and the London-Carlisle railway line. When the applicants bought it, they stated that it was generally regarded as being an eyesore. They referred to letters from local residents describing the site as having been used for car breaking and tipping rubbish, being littered and infested with rats. They spent two years cleaning it up and developing it. The Government disputed this assertion, stating that local authority records indicate that it was after the applicants had occupied it that complaints were received about its condition. They stated that the land was previously used for grazing and growing crops.
13. In August 1991, the applicants moved onto the site and on 17 September 1991 they applied for planning permission to Lancaster City Council (“the Council”) for a small close-knit gypsy family site for six caravans.
14. On 18 October 1991, they were prosecuted in Lancaster Magistrates' Court for being on the land unlawfully. They were convicted and fined 75 pounds sterling (GBP).
15. On 11 November 1991, the applicants' planning application was refused, by letter, on the grounds of adverse effect on highway safety and impact on visual amenity. On 17 December 1991, the applicants submitted an appeal to the Secretary of State.
16. On 18 December 1991, they were served with an enforcement notice requiring them essentially to move the caravans off the land and to reinstate the land to its former condition. They were given 56 days to comply with the latter condition.
17. On 30 December 1991, the applicants submitted a further appeal against the enforcement notice.
18. On 9 June 1992, a public local inquiry was held to consider both appeals. These appeals were heard by an Inspector appointed by the Secretary of State for the Environment.
19. On 9 September 1992, these appeals were dismissed. In his report, the Inspector stated inter alia:
“9. Planning policies for the area are contained in the 1990 Lancashire Structure Plan. Policy 6 seeks to limit development of land in the open countryside outside the Green Belt to that needed for the purposes of agriculture and forestry, or other uses appropriate to a rural area. ... Policy 14 refers to Areas of Special Landscape, the appeal site is within such an area. The object is to safeguard such areas from development that is not in keeping with the special character of the landscape and is a of a standard of design appropriate to the area. The site is in an area of open countryside, it is undulating pasture land with a few buildings in the locality and can be seen from a number of public viewpoints, including the canal towpath close at hand, and further afield, from points along Tarn Lane. In my opinion, the appearance of 6 caravans on the site would cause serious harm to the character of the landscape and be in conflict with Policy 14, even allowing for the proximity of the site to Cinderbarrow Cottage. ...
11. By all accounts the land was overgrown until 1990 or thereabouts; it is not overgrown now but I consider that the harm caused to the character of the area by using the site for stationing 6 caravans for residential purposes materially outweighs any benefits that may have accrued from <the applicant's> cleaning up operation. Hedging can reduce the visual impact of a development, <the first applicant> proposed to plant hedging along 3 of the boundaries and he has already done some of this. The types of hedging which are characteristic of the area would not provide much in the way of screening for many years, <the applicant's> approach is to plant quick growing conifers but I share the Council's view that these are not in keeping with the character of the area.
12. With regard to highway safety, you suggest that a common sense view be taken. Cinderbarrow Lane is an unclassified road approximately 2 km long, it is narrow for much of its length and contains a number of bends. In many places, 2 cars could not pass. The hedges along the lane obstruct the visibility at bends, alterations in the hedge line along the site would be a help but in my view such alterations would not go far towards improving the overall situation. The land leads to the A6070 at one end where visibility is significantly below the standards recommended in Planning Policy Guidance Note 13. At the other end, access to and from the A6 can be obtained via Tarn Lane, where visibility at the junction is adequate, and directly along Cinderbarrow lane; the visibility of the junction of this land with the main road is significantly below the recommended standards. <The first applicant> says he uses only the Tarn Lane junction, but I consider that others may well use the other junctions either because of convenience or because they do not appreciate the different standards of visibility at the 3 junctions. ...
14. Cinderbarrow lane and its junctions with the main roads clearly have hazards for traffic. <The first applicant's> use of the appeal site adds to those hazards, in my opinion, because of the increase in the number of traffic movements likely to result from the use and the increased likelihood of vehicles having to be reversed when meeting vehicles coming the other way. I accept that caravans are not likely to be towed onto and off the site on many occasions each year, and if that were the only consideration I would not have regarded the implications for highway safety to be so unacceptable as to warrant a refusal of permission. It is, however, one of a number of drawbacks and I consider that, overall, the highway objection is sustained.
15. The effect of Section 54(A) of the 1990 Act is that the determination of these appeals shall be made in accordance with the development plan, unless material considerations indicate otherwise. The development plan in this case is the Lancashire Structure Plan and on the basis of the evidence I consider that <the first applicant's> development does not accord with it. Highway safety is a material consideration but it is one, which in my view, weighs against his case. A further material consideration, an important one, namely a special need for accommodation to be provided for gypsies, remains to be considered.
16. <The first applicant's> gypsy status is not a matter of dispute, nor is the fact that, since April 1987, the Council's district is designated under the provisions of the Caravan Sites Act 1968, ..., as an area where adequate provision has been made for gypsies residing in, or resorting to the area. Circular 28/77 emphasises, at paragraph 23, that the additional power accruing from a designation order should be seen by Local Authorities as a means of ensuring that gypsies use the accommodation available to them rather that as a means of avoiding the need to provide further sites. Authorities may also have to be prepared to increase the provision they have made if there is a subsequent expansion of the gypsy population in their area. The Council say that provision has been made over and above that which led to the area being designated. Fourteen additional residential pitches and 4 pitches for touring caravans have been provided on 4 private sites ... The Council's own site at Mellishaw Park has 20 double pitches and can, therefore, accommodate 40 caravans.
17. The larger picture for the County is that, under Policy 11 of the Structure Plan and in the context of residential development, the aim is to provide land for caravan sites for gypsies within, or close to, the main urban areas. There are 5 permanent gypsy sites in the County, including the one at Mellishaw Park. The County Council are actively pursuing the provision of 3 further sites, none of which are in Lancaster.
18. The half-yearly count of gypsy caravans since January 1990 discloses that there have been spaces available on authorised sites on every count, except the last one in January 1992. In July 1991, during the period when <the first applicant> was evidently clearing up the appeal site prior to moving onto it in August, the Council say there were 21 vacancies on authorised sites. The Council also say that on the day before the inquiry there were 17 vacancies.
19. In my view the special need for accommodation to be provided for gypsies is not so weighty in the present case as to outweigh the harm caused to the character of the area and the adverse effects on highway safety.
20. <The applicants> put forward a number of reasons why they did not wish to go onto authorised sites in the area. Some of the reasons related to incidents in recent years which led them to embrace the concept of self-help and moving onto the appeal site, which they bought in 1986. I have accorded some weight to these matters but I remain of the opinion that the Council's case is the one that should prevail. ...”
The time period for compliance was extended to 6 months. The Inspector also revoked the condition of returning the land to its former condition finding it excessive due to the tidying work carried out by the applicants.
20. The applicants did not appeal against this decision to the High Court, as such appeals can only be made on limited grounds (see paragraph 38).
21. The applicants tried unsuccessfully to find an alternative site both in the Lancashire City Council area and in the nearby Cumbria City Council area. They were offered places on an authorised site, Mellishaw Park, which they turned down for strong personal reasons, namely, since this particular site was occupied by a large, violent gypsy family who had attacked them on more than one occasion. In May 1992, the first applicant received serious injury, being beaten with a baseball bat and being showered with glass as his car was smashed. His assailant was convicted of actual bodily harm. The applicants were advised by the police to stay away from the area.
22. On 28 May 1993, the applicants were prosecuted in Lancaster Magistrates' Court and given a conditional discharge for one year, which would expire on 28 May 1994.
23. On 7 June 1993, they applied for planning permission for a smaller gypsy site which would consist of one mobile home and a transit pitch.
24. On 19 July 1993, their application was refused and they appealed against this decision.
25. On 21 December 1993, a public local inquiry was held. On 25 January 1994, the appeal was dismissed again, on grounds of visual amenity and adverse effect on highway safety. Even though the applicants had offered to provide whatever form of screening was necessary, the Inspector considered that an effective screen would take too long to establish and would look alien. The use of the site for the stationing of a caravan and the addition of a second would “seriously harm the character and appearance of the surrounding area”. He gave weight to the highway authority evidence that the exit from Cinderbarrow Lane to the A6 suffered from lack of visibility. While he noted that the applicants'submission that they could use the alternative exit in Tarn Lane, he considered that the greater convenience of the shorter route would be likely to encourage its regular use. Given the lightly trafficked nature of the road, he did not find this to be a crucial matter however. As regarded the needs of the applicants, he stated:
“11. Since 1987 Lancaster District has been designated under the provisions of the Caravan Sites Act 1968, as amended, as an area where adequate provision has been made for gypsies residing in or resorting to the area. The current level of authorised provision within the district is 100 caravan pitches of which 20 pitches are on a council-owned site. Surveys taken during 1993 show that an average of 29 vacancies existed each month on private sites in the district, and an average of 7 vacancies on the council owned site.
12. Circular 28/77 states that it may be necessary to accept the establishment of gypsy sites within areas of open land where the land use policies which apply are severely restrictive to development, but in such cases there will be a special obligation to ensure that the arguments in favour of a departure from the development plan are convincing. <The applicants> put forward reasons why they did not wish to go to authorised sites in the area. Although these reasons were understandable, these are essentially personal reasons which do not, in my opinion, outweigh the harm caused to the character of the area and the adverse effects on highway safety. In my judgment the provision made within the district and the site availability revealed by survey is sufficient for me to conclude that the special need for accommodation to be provided for gypsies is not so weighty in this case as to justify a departure from established planning policy.”
26. In June 1994, further prosecution was adjourned to 7 October 1994. On that date, the applicants were convicted of failing to comply with the enforcement notice and were fined GBP 300 plus costs.
27. In January 1995, the applicants appeared once more in the magistrates' court charged with failing to comply with the enforcement notice. The proceedings were adjourned until 12 May 1995, when the applicants elected to be tried in Preston Crown Court by judge and jury. At a hearing on 8 December, the applicants were directed by the judge that they had no alternative but to plead guilty as they did not have a defence to the charges. He deferred sentence and granted leave to appeal to the Court of Appeal. On 10 May 1996, the Court of Appeal dismissed the appeal, inter alia, endorsing the judge's finding that:
“Subsection 3 <of the Town and Country Planning Act 1996> is not concerned with a balance of social factors. It is not concerned with the policy issues as arise in relation to the circumstances in which gypsies live.”
28. The case was remitted to the Crown Court judge, who took the view that there was “powerful mitigation” and sentenced the applicants to a fine of GBP 150 and GBP 100 costs. He observed that it would have been inappropriate to commence a third prosecution and that it would have been more appropriate to commence civil injunctive proceedings in the County Court.
29. On 14 October 1996, the Council decided to take injunctive action against the applicants. At the hearing on 27 February 1997, the County Court had before it an affidavit from the first applicant and two affidavits from the Council. In the affidavit of Mr Dennison for the Council, it was accepted that the applicants had not been able to secure accommodation within the area for their caravan elsewhere but it was suggested that insufficient efforts had been made. In his affidavit, to which were annexed refusals from 25 sites, the first applicant stated that:
“Since 1992 my wife and I have been making extensive enquiries about alternative situations... It is wrong for the Council to suggest that we have only tried holiday sites thereby implying that we knew they would fail; to the best of my knowledge and belief all the sites we tried had some residential accommodation. We repeated these efforts prior to the most recent proceedings.”
30. Due to the pressure of the proceedings, the first applicant made an undertaking to the Court to remove his caravans from his land and to break up the hard surface laid out on the land by 1 January 1998. On 26 August 1997, the applicants applied for a variation of the undertaking, seeking an extension of the time for compliance as they had been unable to find anywhere else to site their caravan and due to the first applicant's ill health. The second applicant submitted in an affidavit to the County Court that they had made continuous and strenuous enquiries since February 1997, but had been met with refusals – letters from 22 sites were enclosed. The application was refused and the applicants ordered to pay the Council's costs.
31. On 7 November 1997, the Council served on the first applicant a “Notice to Show Good Reason why an Order for Your Committal to Prison should not be made” which applied for the first applicant to be committed to prison. At the hearing on 14 November 1997, the judge committed the first applicant to prison for three months but suspended the imprisonment on condition that the applicant complied with his undertaking by 21 February 1998. Counsel's notes of the judge's judgment indicated that the order was made to enforce the law as fining had achieved nothing – “If it means that the applicants have to seek something other than static caravan accommodation, so be it”. In order to avoid committal and the ensuing deleterious consequences on the first applicant's health and the applicants' family, the applicants vacated their land and are currently without a fixed address. They have been unable to find alternative accommodation elsewhere.
32. As regards the availability of pitches elsewhere, the Government submitted that during the period of May 1993–June 1995 12 vacancies arose on Mellishaw Park, the official site in the district. There was a waiting list but the applicants would only have had to wait 4–6 months for a vacancy to occur. The conditions on this site were closely monitored by weekly inspections by a resident warden. In the local authority's area, there were also, according to the figures given to the Commission by the Government, space for 99 caravans on seven authorised private sites, where there were currently 31 vacant pitches and a further 107 private authorised/touring and residential sites, comprising, respectively, 4,834 and 561 pitches, with substantial numbers of vacancies. Some of these sites were used by travellers particularly in the winter months. The applicants stated that these sites are largely seasonal for tourists and that gypsies were not welcome. Only one of them has been designated as official gypsy site but is still inhabited mostly by non-gypsies. This site had 40 pitches.
According to the 1999 statistics of the Department of the Environment however, the number of authorised private sites had increased by six (from 68 to 74), while the number of public sites had decreased by the same number (from 25 to 19). However, the total number of unauthorised encampments in the area had almost doubled from 11 to 21.
II. RELEVANT DOMESTIC LAW AND PRACTICE
33. 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).
34. 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).
35. 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).
36. 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).
37. 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.
38. 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.
39. 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).
40. 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”.
41. 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 gypsies residing in or resorting to their area”.
42. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).
43. 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).
44. 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).
45. 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.
46. 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”).
47. 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.”
48. The report made numerous recommendations for improving this situation.
49. 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.
50. 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.
51. 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”.
52. 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.
53. 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.
54. 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”.
55. 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).
56. 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...”
57. 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).
58. 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.”
59. 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.
60. 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.
61. The Advisory Council for the Education of Romany and Other Travellers (ACERT), which carried out research sponsored by the Department of the Environment, Transport and Regions, noted in this report that since 1994 private site provision had increased by 30 caravans per year while the pace of public site provision had declined by 100 caravans, disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision. Noting the increase of gypsies in housing and the increased enforcement powers under the 1994 Act, it questioned, if these trends continued, the extent to which the ethnic, cultural and linguistic identity of Gypsy and Traveller people would be protected.
62. 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.
63. The report stated that the figures for success rates in the 624 planning appeals looked at 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.
64. In January 2000, the Department of the Environment, Regions and Transport's survey on gypsy 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.
65. 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.
66. 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.”
67. 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.
68. 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.
69. 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. ...”
70. 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; ...”
71. 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.”
72. 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.
73. 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 concerned protection of Roma and Sinti as minorities.
74. On 7 April 2000, the High Commissioner's Report on the Situation of Roma and Sinti in the OSCE Area was published. Part IV of the Report deals with the living conditions of Roma, noting that while nomadism had been central to Romani history and culture a majority of Roma are now sedentary (one estimation gave 20% as nomadic, 20% as semi-nomadic, moving seasonally, while 60% were sedentary). This was particularly true of Central and Eastern Europe, where there had been in the past policies of forced sedentarization:
“It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSC participating States have at times breached this principle, either by making a determination of a group's fundamental lifestyle that is inconsistent with its members' choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity.” (pp. 98-99)
75. 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)
76. 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).
77. Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans, it stated:
“... This scheme allows wide ply for the exercise of discretion – and that discretion has repeatedly been exercised to the detriment of Gypsies. A 1986 report by the Department of the Environment described the prospects of applying for planning permission for a Gypsy site as 'a daunting one laced with many opportunities for failure'. In 1991, the last years in which the success of application rates was evaluated, it was ascertained that 90 per cent of applications for planning permission by Gypsies were denied. In contrast, 80 per cent of all planning applications were granted during the same period. It is to be noted that, as a category, Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities. As such, virtually all Gypsy planning applications are highly contentious. Nonetheless, the fact remains that there is inadequate provision or availability of authorized halting sites (private or public), which the high rate of denial of planning permission only exacerbates. Moreover, there are indications that the situation has deteriorated since 1994. ... In face of these difficulties, the itinerant lifestyle which has typified the Gypsies is under threat.” (pp. 113-114)
78. The report's recommendations included the following:
“... in view of the extreme insecurity many Roma now experience in respect of housing, governments should endeavour to regularize the legal status of Roma who now live in circumstances of unsettled legality.” (pp. 126 and 162)
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-114109
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CĂCESCU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicants, Mr Eduard Mihael Căcescu (“the first applicant”), Mr Mihael Căcescu (“the second applicant”) and Mrs Viorica Căcescu (“the third applicant”), are Romanian nationals who were born in 1982, 1949 and 1952 respectively and live in Tecuci. The second and third applicants are the first applicant’s parents. They are all represented before the Court by the second applicant, who is a lawyer practising in Tecuci.
3. On 9 December 2000 the first applicant, who was then eighteen years old, went with eleven school friends in four cars to a neighbouring town, Focşani, to attend a concert. After the event they drank soft drinks and coffee at a restaurant. At around 1 a.m. they returned to their cars in order to leave for home. The applicant was on the back seat of one of the four cars when a patrol composed of a police officer and a gendarme approached him and asked him to produce the car papers.
4. According to the applicant, he replied that he did not have the papers as he was not the driver. The police officer became angry and told him to step out of the car. When the applicant did so, the police officer immobilised him and started to punch and kick him, hitting him about the head and mouth with his walkie-talkie. The applicant fell to the ground but the police officer continued kicking him in the mouth. The gendarme and two security guards from the restaurant also took part in the attack.
5. The first applicant was bleeding heavily and lost consciousness. When he woke up he was at the police station in Focşani, where he had been taken along with two of his friends. He was held there for three hours and informed that he would be fined for refusing to present his identity papers. The applicant refused to sign the contravention report, which he later contested before the courts. In a final decision of 12 September 2001 the Vrancea County Court annulled the report.
6. One of the first applicant’s friends contacted the second and third applicants and told them what had happened to their son. At 4 a.m. the parents went to Focşani police station and found their son bleeding, toothless and with torn clothes. They took him to Tecuci Hospital, where he was examined by a doctor and sent to Sfânta Elena Clinic in Galaţi.
7. The medical reports drafted on 11 December 2000 stated that the applicant had swollen lips, recent post-traumatic lesions and broken teeth.
8. From 12 to 18 December 2000 the first applicant underwent corrective dental surgery in Elisabeta Doamna Hospital in Galaţi.
9. On 27 December 2000 a forensic doctor issued a further medical report that confirmed the conclusions of the previous examinations and described the operations. It concluded as follows:
“1. Căcescu Eduard Mihael presents traumatic facial and dental lesions which could have been caused by being hit with a hard object.
2. The lesions could have occurred on the night of 9/10 December 2000.
3. They require thirty to forty days of medical care from the day of their occurrence, if no complications arise, with the repair of broken teeth by means of prostheses.”
10. On 27 June 2002 the first applicant underwent a dental examination in a private clinic in order to assess the need for further treatment. The orthodontist noted that six teeth were still affected and needed prostheses, and that one tooth had been removed completely due to post-traumatic complications. The orthodontist mentioned that, in any case, the applicant’s teeth could not be restored to their original condition by more than 75%. The orthodontist estimated the cost of the surgery at 77,207,500 Romanian lei (ROL).
11. On 27 December 2000 the first applicant lodged a criminal complaint against the police officer, the gendarme and the two security guards.
12. The Bacău Military Prosecutor’s Office started investigations and on 16 May 2002 committed the police officer, the gendarme and one civilian security guard for trial accused of serious bodily injury causing disfigurement (“vătămare corporală gravă având ca urmare sluţirea”). In addition, the police officer was indicted for abusive behaviour (“purtare abuzivă”).
13. The applicants participated in the proceedings as civil parties.
14. Before the Iaşi Military Court the prosecutor asked for the offence to be re-classified as bodily injury, in the light of the medical reports. The civil parties objected to the re-classification.
15. On 5 February 2003 the Military Court gave judgment on the case.
16. On the facts, it found that the police intervention had been prompted by a fight that had occurred in the vicinity of the restaurant where the applicant had been drinking with his friends. It also found that when asked to identify himself, the applicant had refused and told the police officer that he “did not show identification papers to a night watch” and that his father was a lawyer. The court examined the evidence and ruled that only the injuries sustained to the head had been proven and that nothing in the case file supported the applicant’s allegations that he had sustained punches and kicks to his entire body while lying on the ground. As for the gravity of the abuse, the court noted that the first applicant needed only thirty to forty days to recuperate and had suffered only temporary aesthetic damage.
17. Given the less severe consequences of the abuse, the court changed the legal classification of the offence as proposed by the prosecutor. It then found, based on the evidence in the file, that by hitting the applicant in the face, the culprits had committed the offence of bodily injury (all culprits) and abusive behaviour (the police officer), and convicted them of those offences. The court gave the police officer a two-year suspended sentence and the other two culprits received eighteen-month suspended sentences.
18. Lastly, the court examined the civil claims in the light of the extensive evidence. It set aside part of the pecuniary claims as it found that they had not been properly justified, and held that the amount sought by the first applicant for non-pecuniary compensation was exaggerated. It therefore awarded him ROL 14,996,713 in respect of pecuniary damages and ROL 50,000,000 in respect of non-pecuniary damages. It dismissed entirely the non-pecuniary claims lodged by the second and third applicants, as it held that they were not entitled to make any claims in the proceedings and that in any case they could enjoy the award made to the victim under that head.
19. All the parties appealed against the judgment. On 24 June 2003 the Bucharest Military Court noted that general Amnesty Law no. 543/2002 was applicable to the criminal sentences in the case and modified the judgment accordingly. It maintained the lower court’s decision concerning the civil awards and noted that recent expert medical reports had attested that the victim had by then recovered completely as a result of treatment.
20. The accused persons appealed on points of law. In a final decision of 30 October 2003 the Bucharest Military Court of Appeal dismissed the appeals and upheld the decision of 24 June 2003. The final decision became available to the parties on 14 November 2003.


ITEMID: 001-4752
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: LAAKSONEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish citizen, born in 1973 and resident in Helsinki.
He is represented before the Court by Mr Sami Heikinheimo, a lawyer practising in Helsinki.
A.
On 15 December 1995, the Jyväskylä District Court (käräjäoikeus, tingsrätt) convicted the applicant, inter alia, of an aggravated drug offence and sentenced him to six years' imprisonment. The time for appeal expired on Monday 15 January 1996. The applicant's appeal was entry stamped on 16 January 1996 at the registry of the District Court. On 26 June 1996 the Vaasa Court of Appeal (hovioikeus, hovrätt) decided to dismiss the appeal as being out of time.
The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen). He claimed that he had posted the appeal to the post-office box address of the District Court on Friday 12 January 1996 by first class mail. The Post Office had informed the public that the post sent by first class would get to the recipient the next working day. The applicant also claimed that the District Court's post-office box should have been emptied at the end of office hours. He, therefore, alleged that either there had been a delay in the post or the District Court's officials had not emptied the box duly. He claimed that since his appeal had arrived out of time because of negligence of some public officials, it should have been examined. On 28 November 1996 the Supreme Court refused the applicant leave to appeal.
B. Relevant domestic law
According to Chapter 25, Section 12, Subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), the time-limit for filing an appeal against a District Court's judgment is thirty days from the judgment. According to Subsection 2, the appeal must be delivered to the registry of the District Court no later than on the expiry date of the time for appeal.
Section1, Subsection 1, of the Act of Sending Certain Documents to the Courts (laki eräiden asiakirjain lähettämisestä tuomioistuimille, lag om insändande av vissa handlingar till domstolar, 7.5.1965/248) provides that appeals may be sent by post at the appellant's own risk. According to Section 2 of the same Act, a document sent by post is considered to have arrived when it has been delivered to the recipient.


ITEMID: 001-95281
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MARINICA TITIAN POPOVICI v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1954 and lives in Nădrag.
5. In 1993 the public prosecutor initiated a criminal action against the applicant for homicide and grievous bodily harm. On 14 September 1993 he was placed in pre-trial detention, where he remained until 25 October 1994. On 7 May 1997 the Timiş County Court (“the County Court”) acquitted the applicant, finding that he had not committed the crimes concerned. That judgment became final on 30 November 1999.
6. On 2 November 2000 the applicant lodged an action for pecuniary and non-pecuniary compensation for illegal detention.
7. On 16 February 2001 the County Court dismissed the request because the applicant had not paid a deposit of 5 % of the amount claimed, as provided for by Government Emergency Ordinance no. 53/2000.
8. On 26 April 2001 the Timişoara Court of Appeal (“the Court of Appeal”) allowed an appeal by the applicant, quashed the previous judgment and sent the case back for a fresh examination. The court held that the above-mentioned ordinance applied only to violations of non-pecuniary rights committed through the press.
9. On 30 November 2001 the Supreme Court of Justice dismissed an appeal by the authorities and upheld that ruling.
10. After the retrial, on 8 March 2002 the County Court made awards in respect of pecuniary and non-pecuniary damage.
11. On 15 May 2002 the Court of Appeal allowed an appeal by the applicant and awarded the whole amount claimed by him for pecuniary and non-pecuniary damage.
12. On 31 January 2003 the Supreme Court of Justice upheld an appeal on points of law by the authorities, quashed the two previous judgments and sent the case back for fresh consideration. It reiterated that a claimant needs to provide proof of damage, but that judges are also obliged to avoid investigative errors, if necessary by ordering certain evidence to be produced even if the parties refuse. The lower courts had estimated the damage without taking into account that damage must be demonstrable and uncompensated and without giving reasons.
13. On 25 June 2003 the case was registered with the County Court. The court questioned the applicant, heard a witness, requested information from different institutions, and ordered two expert reports.
14. After the fresh examination, on 6 April 2004 the County Court awarded the applicant 54,476,856 old Romanian lei (ROL) in respect of pecuniary damage and ROL 300,000,000 for non-pecuniary damage. It also awarded costs and expenses.
15. On 16 July 2004 the Court of Appeal allowed an appeal by the applicant and increased the amount in respect of non-pecuniary damage.
16. The parties appealed on points of law. On 25 August 2004 the High Court of Cassation and Justice received the case file from the Court of Appeal and fixed the first hearing for 9 February 2006.
17. On 17 February 2006 the High Court, in a final decision, upheld the appeal by the applicant and awarded him the full amount of ROL 900,000,000 claimed in respect of non-pecuniary damage, as well as ROL 53,120,000 for costs and expenses.
On 19 May 2006 it sent the case file back to the Court of Appeal.
18. On 30 June 2006 that judgment was endorsed with a writ of execution. On 3 August 2006 the applicant requested the Ministry of Public Finance to pay the above-mentioned amounts. After securing the official authorisations, the Ministry paid the debt on 14 November 2006.
VIOLATED_ARTICLES: 6


ITEMID: 001-90579
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KUKKONEN v. FINLAND (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1967 and lives in Helsinki.
5. On 30 January 1994 the applicant had an accident at work. The insurance company paid him an occupational injury pension until 31 May 1996.
6. The applicant applied to have the pension continued from 1 June 1996 onwards. On 8 May 1996 the insurance company rejected his application finding that the applicant’s work capacity had been reduced by less than 10%. It further held that the applicant’s inability to return to his previous profession as a carpenter was not the result of the injury sustained during the accident, but of pains which had not been caused by the accident.
7. In June 1996 the applicant appealed to the Accident Board (tapaturmalautakunta, olycksfallsnämnden), repeating his requests. He relied on a medical opinion dated 13 May 1996 in which he was found to be unfit for carpentry work. He also submitted further medical opinions. The Board rejected his appeal on 13 March 1997. It ruled, inter alia, that he was incapable of full-time carpentry work. However, the applicant’s pains were not caused by the accident and therefore could not be compensated under the Employment Accidents Act.
8. The applicant, represented by a lawyer, appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen) submitting further evidence. On 17 November 1998 the court rejected the bulk of his appeal. However, it modified the Accident Board’s decision so as to grant the applicant a 100% occupational injury pension for the period from 20 May to 19 June 1997, during which the applicant had participated in a work-testing project. The case was referred back to the insurance company for further measures.
9. On acquainting himself with his case file at the office of the Insurance Court’s registry, he found three documents which he claimed had not been communicated to him. In his application for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) he claimed, inter alia, that he had not been sent all the documents relevant to his case.
10. The Supreme Court refused the applicant leave to appeal on 21 October 1999.
11. On 27 March 2000 the applicant, using an extraordinary procedure, requested the Supreme Court to annul its decision and that of the Insurance Court. He argued that the latter court had failed to send him documents.
12. On 13 November 2003 the Supreme Court rejected his application. It found that the non-communicated documents related to decision-making within the insurance company and that the documents had not been submitted to the court in connection with the parties’ submissions or relied on by the court in reaching its decision.
13. On 27 March 2000 the applicant lodged an application (no. 57793/00) with the European Court against Finland. He alleged, in particular, that he had been denied a fair hearing within the meaning of Article 6 of the Convention on account of the failure to provide him with an opportunity to comment on some documents which had been included in his case file. On 7 June 2007 the Court held unanimously that there had been no violation of Article 6 § 1 of the Convention.
14. Meanwhile, the case was pending before the insurance company. On 7 February 2000 the insurance company decided that the new medical evidence submitted was not capable of changing the conclusions of the Accident Board in its decision of 13 March 1997. The insurance company found that, even though the applicant was incapable of full-time carpentry work, he was capable of other work.
15. On 9 March 2000 the applicant appealed to the Accident Board against the insurance company’s decision. In his appeal, which became pending before the Accident Board on 26 July 2000, he requested compensation for total incapacity for work. On 28 May 2002 the Board held an oral hearing. On 26 September 2002 it modified the insurance company’s decision, changing the applicant’s handicap allowance category from 3 to 5 and ordering the insurance company to pay him a 50% occupational injury pension for the period from 16 May 2002 to 31 May 2004. As concerned the time after that date, the case was referred back to the insurance company. The Board found that the applicant was still capable of working in another profession where his earnings could reach about half the level of his earnings before the accident. The Board referred to his relatively young age and the number of years that he could expect to work.
16. The applicant appealed to the Insurance Court, repeating his requests. On 14 June 2005 the court ordered the insurance company to pay the applicant a 50% occupational injury pension for the period from 26 June 2001 to 31 May 2004 and rejected the remainder of the claims. Referring to several medical opinions, the court estimated that the applicant’s ability to work had been reduced from 26 June 2001 onwards, when he started treatment for pain.
17. The applicant appealed to the Supreme Court which, on 5 June 2006, refused leave to appeal.
18. According to section 53c (893/1994) of the Employment Accidents Act (tapaturmavakuutuslaki, lagen om olycksfallsförsäkring), an appeal against a decision of an insurance company must be submitted to the company in question. If the company cannot change the decision appealed against, it must refer the case, together with its opinion, to the Accident Board within a period of 30 days from the end of the appeal period or, if the time-limit has been extended, at the latest within a period of 60 days from the end of the period of appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-94869
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ADZHIGOVICH v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Pecuniary and non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1975 and lives in Moscow.
7. On 8 October 2004 the applicant travelled from Moscow to Simferopol in Ukraine through Sheremetyevo airport. She had on her 13,020 US dollars (USD), 31 Ukrainian hryvnyas (UAH) and 1,100 Russian roubles (RUB). However, she only reported USD 10,000 and UAH 31 in her customs declaration. The customs inspection uncovered the remaining USD 3,020, which the applicant claimed she had forgotten about. She was charged with smuggling, a criminal offence under Article 188 § 1 of the Criminal Code. The money was appended to the criminal case as physical evidence (вещественные доказательства).
8. On 9 December 2004 the Golovinskiy District Court of Moscow found the applicant guilty as charged and imposed a suspended sentence of one year's imprisonment, conditional on one year's probation. As regards the money, it referred to Article 81 of the Code of Criminal Procedure and held that:
“Physical evidence – USD 13,020 and UAH 31 held in the evidence storage room of the Sheremetyevo Customs Office – shall revert to the State.”
9. In his statement of appeal, counsel for the applicant contested the lawfulness of the confiscation measure. He submitted that the gravity of the offence should have been determined by reference to the amount the applicant had concealed from the customs, that is USD 3,020, rather than the entire amount she had carried. The money had been the object rather than the instrument of the offence and as such it should have been returned to the lawful owner because it had not been claimed that it had been criminally acquired.
10. On 25 January 2005 the Moscow City Court upheld the judgment by a succinct decision, without examining the counsel's arguments in detail.
11. Counsel for the applicant submitted several applications for supervisory review of the judgments. The applications were rejected by a judge of the Moscow City Court on 22 August 2005, the President of the Moscow City Court on 18 January 2006, and a judge of the Supreme Court of the Russian Federation on 12 April 2006. As regards the confiscation measure, the judicial authorities maintained that the measure had been lawful and compliant with Article 81 of the Code of Criminal Procedure.
12. On 26 April 2007 the Presidium of the Moscow City Court examined yet another application for supervisory review. It held that the applicant had been correctly found guilty of smuggling but amended the judgment in part concerning the confiscation measure, having found as follows:
“However, the decision that the authentically declared amount of USD 10,000 and UAH 31 should revert to the State was not founded on sufficient reasons.
In deciding that the foreign currency should revert to the State, the court posited that the currency transported by Ms Adzhigovich was the object of the offence. However, since her criminal intent was directed at the breach of the procedure for transferring cash money (currency) across the customs border rather than at their unlawful misappropriation, the cash money (currency) was not the object of the offence and therefore not liable to confiscation under Article 81 [§ 3] (1) of the Code of Criminal Procedure.
Moreover, according to Article 81 [§ 3] (4) of the Code of Criminal Procedure, criminally acquired property, money or other valuables must revert to the State. The case file does not contain any evidence to the effect that Ms Adzhigovich obtained the above-mentioned money through criminal means or as the proceeds of criminal activity.
In such circumstances, the judgments in the part concerning the decision that the foreign currency should revert to the State may not be considered lawful or justified.”
The Presidium held that the judgments would be amended and that USD 10,000 and UAH 31 would be returned to the applicant.
13. On 5 July 2007 a writ of execution was issued and sent to the bailiffs' service for enforcement.
14. On 23 January 2008 the bailiffs determined that the enforcement was impossible because the cash money in the amount of USD 10,000 and UAH 31 was absent from the evidence storage room of the Sheremetyevo Customs Office. That money had been taken away on 4 October 2005 by the bailiffs of the Northern Administrative District of Moscow, which appeared to have made enforcement impossible.
15. The Criminal Code of the Russian Federation provides that smuggling, that is movement of large amounts of goods or other objects across the customs border of the Russian Federation, committed by concealing such goods from the customs or combined with non-declaration or inaccurate declaration of such goods, carries a penal sanction of up to five years' imprisonment (Article 188 § 1).
16. The Code of Criminal Procedure of the Russian Federation (“CCrP”) provides as follows:
“1. Any object may be recognised as physical evidence -
(1) that served as the instrument of the offence or retained traces of the offence;
(2) that was the target of the criminal acts;
(3) any other object or document which may be instrumental for detecting a crime or establishing the circumstances of the criminal case.
...
3. On delivery of a conviction... the destiny of physical evidence must be decided upon. In such a case –
(1) instruments of the crime belonging to the accused are liable to confiscation, transfer to competent authorities or destruction;
(2) objects banned from circulation must be transferred to competent authorities or destroyed;
(3) non-reclaimed objects of no value must be destroyed...;
(4) criminally acquired money and other valuables must revert to the State by a judicial decision;
(5) documents must be kept with the case file...;
(6) any other objects must be returned to their lawful owners or, if the identity of the owner cannot be established, transferred to the State...”