No violation of P4-2;No separate issue under Art. 8

On DATE the PERSON ( PERSON ) of GPE , relying on section CARDINAL of GPE ( PERSON ) as in force at the relevant time , imposed a prohibition order ( verwijderingsbevel ) on the applicant to the effect that the latter would not be allowed to enter a particular area , the so - called emergency area , of the city centre for DATE . The following events were referred to in the PERSON 's decision as having led to this order being issued .

( i ) It transpired from police reports that on DATE ( twice ) , DATE , CARDINAL DATE , DATE and DATE the applicant had either overtly used hard drugs or had had hard drugs in his possession in streets situated in the emergency area and that on each of those occasions he had been ordered to leave the area for TIME .

( ii ) On DATE the applicant had been heard by the police about his conduct and he had been told that he would either have to desist from such acts , which disturbed public order ( openbare orde ) , or stay away from the area . The applicant had further been informed that , if he committed such acts again in the near future , the PERSON would be requested to impose a DATE prohibition order on him . The applicant had told the police that , as well as preparing and using drugs in the area concerned , he also met his friends there .

( iii ) On DATE the applicant had nevertheless overtly used hard drugs on CARDINAL of the streets in the emergency area . He had once again been ordered to leave the area for TIME and the police had subsequently requested the PERSON to impose a DATE prohibition order on the applicant .

In the opinion of the PERSON , the applicant would again commit acts disturbing public order in the near future . In this context , the PERSON took account of the kind of conduct involved , namely acts seriously disturbing public order , the repetition and continuity of this conduct , the statement of the applicant , the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the TIME prohibition orders imposed on him and the warning given by the police . Finally , the PERSON noted that neither the applicant 's home nor his place of work were situated in the area concerned .

NORP The applicant lodged an objection ( bezwaarschrift ) against the PERSON 's prohibition order . He submitted , inter alia , that the PERSON ought only to make use of the emergency powers granted him by LAW in exceptional situations . As the PERSON had been issuing TIME prohibition orders since DATE and DATE ones since DATE , it could no longer be argued that an exceptional situation prevailed . Moreover , the PERSON had had sufficient time to ensure that the emergency measures were enacted in a general municipal by - law ( Algemene Politie Verordening ) .

The applicant also stated that the prohibition order , which in his opinion constituted a criminal sanction , interfered with his right to liberty of movement and violated the principle of proportionality . In this connection , he argued that he had always complied with the prohibition orders imposed on him for a duration of TIME and that he therefore failed to understand why a prohibition order for DATE had been called for all of a sudden .

On DATE a hearing took place before an advisory committee . At this hearing the representative of the PERSON stated that , in DATE , CARDINAL TIME prohibition orders ( compared with CARDINAL in DATE ) and CARDINAL DATE prohibition orders ( compared with CARDINAL in DATE ) had been issued against people dealing in or using drugs or committing acts related to those activities . The representative further stated that it was intended to enact the power to issue prohibition orders in a general municipal by - law .

On DATE the committee advised the PERSON to dismiss the objection and to maintain the prohibition order . It considered , inter alia , that the disruption of public order in the area concerned was still such as to constitute an exceptional situation within the meaning of LAW . In view of the seriousness and scale of the problems involved , the committee found it unlikely that public order could be adequately maintained by normal methods and that for that reason the PERSON was entitled to use the powers granted him under section CARDINAL .

Having regard to the fact that the applicant had , within a short period of time , regularly committed acts which had disturbed public order and that the TIME prohibition orders which had been issued had not prevented him from doing so , the committee further found that the imposition of a prohibition order for a duration of DATE had not been unreasonable . It did not agree with the applicant that the impugned measure constituted a penalty , as it had been taken in order to maintain public order . The committee finally found that the interference with the applicant 's right to liberty of movement had been justified .

By a decision of CARDINAL DATE the PERSON dismissed the applicant 's objection , adopting as his own the reasoning applied by the advisory committee .

The applicant lodged an appeal against the PERSON 's decision with ORG ( GPE rechtspraak ) of FAC on DATE . In his appeal , which he detailed in a letter of CARDINAL DATE , he raised the same complaints as he had before the PERSON . In his written observations of DATE the PERSON referred to the report drawn up by the advisory committee . A hearing took place before ORG ( GPE bestuursrechtspraak ) , the successor to ORG , on DATE .

On DATE ORG dismissed the applicant 's appeal . Its reasoning included the following :

“ LAW provides that everyone lawfully within the territory of a ORG shall have the right to liberty of movement and freedom to choose his residence . According to the third paragraph of that provision , this right shall not be subject to any restrictions except those which are provided by law , are necessary to protect national security , public order , public health or morals or the rights and freedoms of others , and are consistent with the other rights recognised in that LAW . An almost identical provision is contained in LAW No . CARDINAL to the Convention .

Section CARDINAL , first paragraph , of GPE confers on the PERSON emergency powers which should be used only in exceptional situations . Such exceptional situations include riotous movements , gatherings or other disturbances of public order , serious calamities , and also a serious fear of the development thereof .

Contrary to what the party seeking review has argued , the issuing of orders in the situations set out in section CARDINAL of GPE does not run counter to the above - mentioned treaty provisions , since the latter provide for the possibility of restricting the rights concerned by ' law ' – a term which includes an order issued by the LAW pursuant to the law – for the protection of public order .

Section CARDINAL of GPE is a legal provision intended for situations where ordinary means are insufficient for restoring and maintaining public order .

In the opinion of the ORG these ordinary means may be considered insufficient in the present case and there was , at the time of the decision appealed against , an exceptional situation . It is relevant in this context that at the time of the decision appealed against it was not possible to solve the problem in question through a municipal regulation . There was not at that time – and there is not now – any relevant provision in a municipal by - law , nor is any other sufficient legal means available .

On the basis of the case file and the submissions made at the hearing , in addition to the number of TIME and DATE orders that have been issued in the area concerned , the ORG finds that the appropriate staff and means available to the defendant were inadequate to counter the difficult situation arising from breaches of public order resulting from the behaviour of drug addicts as described in the decision of CARDINAL DATE . This leads the ORG to hold that it can not be stated that the defendant could not reasonably make use of the powers granted him by CARDINAL of LAW .

The ORG would , however , express the following reservations .

It can not see why , if the situation described above should continue , the possibility of issuing DATE prohibition orders should not be provided for in a by - law enacted by ORG . From the point of view of legal certainty and legitimacy of action by public authority , a regulation provided by a municipal by - law seems preferable to a measure based on the defendant 's emergency powers . It appears from the case file that the defendant had already prepared the draft of an appropriate provision , which , however , was never incorporated into ORG because the method used at present , which was decided on in consultation between the defendant , the police and the prosecuting authorities [ verweerder , politie en justitie ] with regard to the DATE prohibition orders , was considered extraordinarily effective . The ORG is , however , of the opinion that the presumed effectiveness of an emergency measure coupled with the prosecuting policy of the prosecution authorities [ Openbaar Ministerie ] do not constitute a reason not to make appropriate provision at the municipal level . The ORG considers that the defendant , in assessing whether there is an exceptional situation within the meaning of CARDINAL of LAW ( now section CARDINAL of GPE ) , may , in principle , no longer rely on the lack of an appropriate provision in a municipal by - law , in view of the length of time this drugs - related nuisance [ drugsoverlast ] has already prevailed , causing it to display structural aspects , if the possibility of issuing DATE prohibition orders is not now provided for in a by - law enacted by ORG within a reasonable time . ”

This decision was published , with a learned comment , in ORG ) DATE , no . CARDINAL .

Apart from the proceedings described above , the applicant was convicted by a single - judge ORG ( politierechter ) of ORG ( arrondissementsrechtbank ) of GPE on DATE of having intentionally failed to comply on DATE with the prohibition order imposed by the PERSON on DATE . Under LAW ( PERSON ) , this failure constituted a criminal offence . He was sentenced to DATE imprisonment . Following an appeal to ORG ( gerechtshof ) , which also convicted the applicant , an appeal on points of law was lodged with ORG ( PERSON ) . ORG dismissed the applicant 's appeal on DATE .

NORP The criminal proceedings against the applicant do not form part of the case before the Court .

At the material time section CARDINAL of GPE ( PERSON ) provided as follows :

“ CARDINAL . In case of a riotous movement , gathering or other disturbance of public order or of serious calamities , as well as in case of a well - founded fear of the development thereof , the PERSON is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger .

Article CARDINAL of LAW ( PERSON ) , in its relevant parts , reads :

“ CARDINAL . Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose , and any person who intentionally obstructs , hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation , shall be liable to a term of imprisonment not exceeding DATE or a secondcategory fine .

NORP If the offender commits the indictable offence within DATE of a previous conviction for such an offence having become final , the term of imprisonment may be increased by CARDINAL . ”

In the GPE , the PERSON of a town or city is appointed by the Queen ( section CARDINAL of the former LAW ) . Municipal regulations , such as general municipal by - laws , are adopted by ORG ( section CARDINAL of the former GPE ) which is elected by those inhabitants of the town or city who are eligible to vote in elections for ORG of ORG ( Article CARDINAL of the LAW ) .

By a letter of CARDINAL DATE the PERSON of GPE informed ORG ( NORP ) of the GPE police that , in view of the situation in the city centre , ORG and police officers acting on the PERSON 's behalf would be able to issue orders , based on LAW as in force at the time , for people to leave a particular area within the city centre and not to return to it for TIME .

The PERSON extended the area of the city centre where these orders could be issued by a letter of DATE . Subsequently , by a letter of CARDINAL DATE , the PERSON also empowered ORG and his officers to order people to leave the designated area for DATE .

By a letter of CARDINAL DATE the PERSON amended this instruction , replacing the discretion of the police officers to issue TIME prohibition orders by a strict order to do so in specified circumstances . This letter contains the following passage :

“ In so acting I have considered that the designated city centre area exerts a continuing attraction on persons addicted to , and/or dealing in , hard drugs . The attendant behaviour disrupts public order , causes considerable nuisance and constitutes an incessant threat to public life . In these circumstances [ in dit verband ] , I judge the situation to constitute an exceptional situation within the meaning of section CARDINAL of GPE . ”

The PERSON 's instructions were further amended by a letter of CARDINAL DATE under the terms of which DATE prohibition orders could no longer be issued by the police on behalf of the PERSON but only by the PERSON himself .

A DATE prohibition order could be imposed on a person if in DATE CARDINAL procès - verbaux or other reports had been drawn up by the police concerning acts committed by him which had disturbed public order , such as , inter alia :

( i ) the possession and use on the public highway of addictive substances appearing in Annex CARDINAL to LAW ( PERSON ; concerns hard drugs ) ;

( ii ) dealing on the public highway in addictive substances appearing in LAW to LAW ;

( iii ) overt possession of knives or other banned objects in so far as this constituted a criminal offence under the General Municipal By - Law or LAW ( LOC en GPE ) ;

( iv ) committing the offence defined in LAW where the order not complied with was an TIME prohibition order ;

( v ) acts of violence , thefts from cars on or along the public highway , overt selling of stolen goods on or along the public highway , in so far as there was a connection between these offences and hard drugs .

On the occasion of a fourth procès - verbal being drawn up against him , the person concerned would be heard by a police sergeant about his disruptive behaviour and the reason for his ( continued ) presence in the emergency area . The police sergeant would issue a warning to the effect that if in the near future the person concerned again disrupted public order , the police would request the PERSON to impose a DATE prohibition order .

It is undisputed that the aforementioned PERSON 's letters were neither published nor laid open to public inspection and that the PERSON 's instructions were not otherwise made public .

In a decision of CARDINAL DATE ( ORG Beslissingen ( ORG ) DATE , no . CARDINAL ) , the President of ORG of GPE held as follows :

“ As ORG has held in previous decisions , section CARDINAL of GPE – paraphrased DATE confers on the PERSON emergency powers which should be used only in exceptional situations . Such exceptional situations include riotous movements , gatherings or other disturbances of public order , serious calamities , and also a serious fear of the development thereof . Thus , provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order .

It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned section CARDINAL , first paragraph .

In so doing , we will consider the undisputed statement made by the respondent party at the hearing concerning the situation in the ( old ) city centre of GPE :

' The old city centre of GPE is known internationally and nationally as a centre for the trade in hard drugs . It continues to attract large numbers of addicts . The doings and dealings of addicts and dealers generally cause serious nuisance : overt use and dealing , intimidating group behaviour , threats to passers - by ( frequently with knives ) , shouting , raving , fights , robberies ( frequently with knives ) , thefts , receiving stolen property , etc . The old city centre has many functions ; an important one is that of being a residential and commercial area . However , the situation threatens all the time to become unbearable .

The extent to which matters have deteriorated for the residents is again apparent from the desperate protests which took place at DATE . These protests ended , for the time being , at a meeting of ORG which was attended by a crowd of people .

The NORP , PERSON , FAC and QUANTITY Hoogstraat are part of the crisis area . PERSON ( FAC , the Nieuwe and Oude Hoogstraat are the prolongation of the NORP ) constitutes the entrance to the old city centre . In this part of the town , all manner of soft drugs , but especially hard drugs , are for sale , in small or large amounts : hashish , cocaine , amphetamines , ORG , heroin and other mindaltering substances . In this area especially , street dealers go about more than elsewhere in the city centre peddling fake hard drugs .

The presence of the dealers and large numbers of addicts , with the attendant criminality , seriously affect the area .

As a result , among other things , of the strong protests of local residents , a special project team of the police was active in LOC for DATE from DATE . Its actions were directed in particular towards the bridge between FAC and the Oude Hoogstraat , the so - called pills bridge . This bridge was occupied by representatives of a new phenomenon , namely , multiple drugs use .

The project team set itself the primary task of restoring public order . During the action , there were CARDINAL ! arrests , CARDINAL of knives were seized and CARDINAL of prohibition orders were issued . '

Noting all this , we are of the provisional opinion that an emergency situation of the kind referred to in section CARDINAL , first paragraph , of GPE was rightly found to exist . The respondent was therefore entitled to issue the disputed orders . ”

Similarly , in a decision of DATE ( PERSON ( Summary Proceedings Law Reports ) DATE , no . CARDINAL ) , the President of ORG held :

“ As ORG has held in previous decisions , section CARDINAL of GPE – paraphrased DATE confers on the PERSON emergency powers which should be used only in exceptional situations . Such exceptional situations include riotous movements , gatherings or other disturbances of public order , serious calamities , and also a serious fear of the development thereof . Thus provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order .

As was held in the decision of DATE ... in relation to the situation in the ( old ) city centre , the respondent rightly found that an emergency situation of the kind referred to in section CARDINAL , first paragraph , of GPE existed . ”

In a judgment of DATE ( PERSON , no . CARDINAL ) , which related to a criminal prosecution under LAW for failure to comply with an TIME prohibition order , ORG ( PERSON ) accepted that the PERSON 's powers under section CARDINAL of the former GPE were intended only for exceptional situations . It held , however , that the mere fact that DATE had passed since the PERSON had declared an emergency situation – the case related to the PERSON 's instruction of CARDINAL DATE was not sufficient per se to justify the conclusion that an exceptional situation no longer existed . It also held , in the same judgment , that LAW did not apply to TIME prohibition orders because such orders were not given by way of penal sanction but were in the nature of a measure aimed at preserving public order . Nor did such orders violate LAW No . CARDINAL to the Convention , since they were “ in accordance with law ” and “ necessary in a NORP society ” for “ the maintenance of ordre public ” . The judgment of ORG upheld a judgment of ORG sentencing the defendant in that case to DATE imprisonment .

Section CARDINAL of the Act on Administrative Jurisdiction as to Decisions of the Administration ( Wet administrative rechtspraak overheidsbeschikkingen – “ the LAW ” ) provided that a person directly affected by an administrative decision ( certain categories of decisions , not relevant to the present case , excepted ) could submit an objection to the administrative body that had taken the decision . The objector was entitled to be heard ; the administrative body could delegate the hearing to an advisory committee ( section CARDINAL(CARDINAL ) ) .

An appeal against the decision of the administrative body lay to ORG of the Raad van State , an administrative tribunal ( section CARDINAL of LAW ) .

The AROB Act was repealed on DATE when LAW ( Algemene wet bestuursrecht ) came into force .

Also as of DATE ORG of the Raad van State was replaced by ORG ( sections CARDINAL et seq . of GPE ( Wet op de Raad van State ) , as amended ) . ORG took over the undecided appeals still pending before ORG .


Remainder inadmissible;Violation of Art. 6-1

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Ireneu Cabral Barreto

NORP The applicant was born in DATE and lives in GPE .

On DATE the applicant , a civil engineer at ORG , was appointed to ORG .

On DATE the applicant brought a case before ORG against ORG ( PERSON İşletmesi PERSON ) ( “ the General Directorate ” ) to challenge his transfer to FAC . He claimed that his transfer had a purely punitive motive , aimed at penalising him for having uncovered certain irregular conduct at ORG . He also requested the suspension of his transfer pending the outcome of the court ’s final decision .

On DATE the applicant lodged a criminal complaint with ORG against his employers in respect of the aforementioned irregularities . On DATE the public prosecutor issued a decision not to prosecute .

On DATE ORG rejected the applicant ’s request for suspension of his transfer . On DATE the applicant objected to that decision . On DATE ORG dismissed the applicant ’s objection .

On DATE the applicant requested ORG to hold an oral hearing .

On DATE ORG dismissed the applicant ’s case , without holding a hearing . It ruled that the applicant ’s appointment to FAC had been effected in view of the needs of ORG and that the administration had thus acted within its legal discretion and in accordance with the relevant laws .

On DATE the applicant appealed against the judgment of the administrative court and requested the suspension of the transfer . He also requested ORG to hold an oral hearing .

On DATE ORG dismissed the request for suspension .

On DATE the applicant once again requested the suspension of the administrative act . His request was dismissed by ORG on DATE .

On DATE ORG issued an interim decision requesting certain information and documents from the respondent administration , including the applicant ’s classified appraisal records ( gizli sicil raporları ) and a description of his duties at the new place of assignment . It appears that the administration submitted the requested information and documents to ORG on DATE . However , neither the interim decision nor the responses of the administration were communicated to the applicant .

On DATE ORG upheld ORG judgment of CARDINAL DATE by a majority decision , without holding a hearing . The dissenting judge opined that the replies provided by ORG to the questions put to it in the interim decision indicated that the applicant ’s transfer had been based on subjective grounds and not on any public need as alleged . Upon service of ORG decision , the applicant found out about the interim decision of DATE and the administration ’s submissions in reply , including his appraisal grades which had apparently fallen following the various actions he had brought against the administration .

On DATE the applicant requested the rectification of ORG decision , complaining , inter alia , of the noncommunication of the interim decision of DATE and ORG replies thereto , which had prevented him from responding to its arguments . In the same letter , the applicant also attempted to challenge the accuracy of the information provided by ORG .

On DATE ORG dismissed the applicant ’s rectification request , holding that none of the reasons put forth by the applicant for rectification fell within the exhaustive list of permissible grounds for rectification indicated in LAW ( CARDINAL ) of LAW ( Law no . CARDINAL ) .

According to LAW ( CARDINAL ) and ( CARDINAL ) of LAW , after a claimant lodges a case with the administrative court , his or her submissions are transmitted to the defendant party . The initial written pleadings of the defendant in response are communicated to the claimant , who submits his or her replies thereto . The claimant ’s replies are then sent to the defendant , who is invited to submit his or her final pleadings , to which the claimant can not reply .

According to LAW ( CARDINAL ) of LAW , an oral hearing will be held in administrative proceedings involving , inter alia , an action for annulment of an administrative act ( iptal davası ) , upon request of either CARDINAL of the parties .

According to LAW ( CARDINAL ) of LAW , a request for an oral hearing can be made by the parties only at certain stages of the administrative proceedings , that is at the time of bringing the case by the claimant , or as part of the subsequent written pleadings and replies submitted to the court by the parties ( see paragraph CARDINAL above ) .


Pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Interest on amount awarded

ORG The case was referred to the ORG by ORG ( " the Commission " ) on DATE , within the DATE period laid down by Article CARDINAL para . CARDINAL and LAW ( article DATE , article CARDINAL ) of the Convention . It originated in an application ( no . CARDINAL/CARDINAL ) against GPE lodged with ORG LAW ( article CARDINAL ) by a NORP national , PERSON , on DATE .

ORG In a judgment of CARDINAL DATE ( " the principal judgment " , Series A no . CARDINAL-A ) , the ORG found that there had been breaches of LAW No . CARDINAL ( PCARDINAL - CARDINAL ) , as the applicant had not been able to mount an effective challenge to the pre - emption of her property by the Revenue , and of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , for want of a fair hearing and owing to the length of the proceedings ( ibid . , pp . DATE , paras . CARDINAL , and points CARDINAL , CARDINAL and DATE of the operative provisions ) . On the other hand , it held that there had been no breach of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW and that it was unnecessary to consider separately the complaints based on LAW and CARDINAL ( article CARDINAL , article DATE ) of the Convention ( ibid . , pp . DATE , paras . CARDINAL , and points CARDINAL and CARDINAL of the operative provisions ) .

The ORG held that its judgment constituted in itself sufficient just satisfaction as to the alleged non - pecuniary damage and that the respondent ORG was to pay the applicant , within DATE , MONEY ( ORG ) in respect of costs and expenses ( ibid . , pp . CARDINAL , paras . CARDINAL , and points CARDINAL and CARDINAL of the operative provisions ) .

ORG As the question of the application of LAW ) was not ready for decision in respect of pecuniary damage , the ORG reserved it and invited the ORG and the applicant to submit in writing , within DATE , their observations on the matter and , in particular , to notify ORG of any agreement they might reach ( ibid . , p. CARDINAL , para . CARDINAL , and point CARDINAL of the operative provisions ) .

ORG The negotiations for an agreement proved unsuccessful and the Registrar received a memorial on DATE in which the ORG replied to the claims made by the applicant in the principal proceedings ( ibid . , p. CARDINAL , para . DATE ) . PERSON submitted her observations and proposals on DATE . In an order of CARDINAL DATE the President requested the parties to make further submissions . Memorials in reply were submitted by ORG on DATE and by the applicant on DATE .

ORG On DATE the Secretary to ORG informed the Registrar that the ORG had no observations to make .

ORG On DATE counsel for PERSON filed supplementary documents and observations , which were communicated to the ORG and ORG on DATE .

On DATE the ORG submitted further observations , which the PERSON sent to the applicant and ORG on DATE .


Violation of Art. 6-1+6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Nicole Van Geyseghem , a nursery nurse born in DATE , is a NORP citizen . At the time of lodging her application , she was living in GPE ( GPE ) .

The applicant and CARDINAL others were prosecuted for importing drugs from GPE on QUANTITY occasions DATE and DATE , including QUANTITY of cocaine on DATE , the date on which the applicant was arrested .

On DATE ORG convicted the applicant in absentia ( she had failed to appear even though she had been properly served with a summons ) and sentenced her to DATE imprisonment and a fine of MONEY ( BEF ) . The court also ordered her immediate arrest on the ground that there was reason to believe that she would attempt to evade enforcement of her sentence .

On DATE PERSON applied to the same court to set aside its judgment .

She attended the hearing of her application . On DATE ORG , after adversarial proceedings , sentenced her to DATE imprisonment and a fine of CARDINAL . The court held that there was no need to order the applicant ’s immediate arrest as there was no cause to fear that she would attempt to evade enforcement of her sentence .

On DATE both the applicant and the prosecution appealed .

Although the summons to appear had been served on her in accordance with the proper procedure , PERSON did not attend the appeal hearing and neither did a lawyer on her behalf . On DATE ORG , ruling in the applicant ’s absence , upheld the judgment of DATE in its entirety . It also ordered the applicant ’s immediate arrest on the ground that there was reason to believe that she would attempt to evade enforcement of her sentence in view of its length and of the fact that she had failed to appear both at the appeal hearing and at the original trial .

On DATE the applicant applied to set aside ORG judgment . Her application was served on the prosecution by means of a bailiff ’s writ , in which the hearing was set down for CARDINAL DATE .

The applicant did not attend the hearing in person . Her counsel , Mr PERSON , appeared and , relying on LAW ( see paragraph CARDINAL below ) , stated that he was representing his client and would be making submissions to the effect that the prosecution had become time - barred between the delivery of ORG judgment in absentia and the date on which the application to set it aside was to be heard by ORG . The court refused PERSON counsel leave to address it and make submissions on his client ’s behalf . At counsel ’s request , the following was entered in the record of the hearing of CARDINAL DATE :

“ The ORG refuses PERSON , of ORG , leave to represent the appellant and to make submissions on her behalf to the effect that the prosecution is time - barred . ”

In a judgment of CARDINAL DATE ORG declared the application void on the following grounds :

“ Although the application has been filed in the proper form and within the statutory time , the appellant has failed to attend the hearing on the date set by her and has not adduced any evidence of force majeure preventing her from attending in person . ”

The applicant lodged an appeal on points of law against the judgment of DATE . In her pleading she argued that ORG refusal to grant her counsel leave to make submissions on her behalf had infringed her defence rights and LAW , which provides that the accused may appear by counsel “ where the hearing concerns only an objection [ or ] a matter unconnected with the merits of the case … ” . In written submissions of DATE summarising his address , the applicant ’s counsel referred to ORG judgment in the LOC v. GPE case ( DATE , Series A no . CARDINAL-A ) .

ORG dismissed her appeal in a judgment of CARDINAL DATE in the following terms :

“ The appellant submits that her counsel attended the hearing and that ORG , in refusing him leave to represent her and make submissions on her behalf to the effect that the prosecution was time - barred – that is , to raise ‘ an objection unconnected with the merits of the ORG – infringed Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure and the general principle of law which requires that the rights of the defence be respected ;

Where a trial or appeal court is dealing with charges which may attract a custodial sentence as the principal sentence , paragraph CARDINAL of the above - mentioned LAW allows an accused to appear by counsel only ‘ where the hearing concerns an objection , a matter unconnected with the merits of the case or the civil interests’ ;

Within the meaning of that provision , a claim that an action is time - barred is neither an objection nor a matter unconnected with the merits ;

The ground of appeal has no basis in law . ”

The relevant Articles of the Code of Criminal Procedure read as follows :

“ CARDINAL . The party claiming civil damages and the party liable to pay such damages shall attend the hearing or appear by counsel .

The accused shall attend the hearing . However , the accused may appear by counsel in the case of minor offences which do not attract a custodial sentence or where the hearing concerns an objection , a matter unconnected with the merits of the case or the civil interests .

ORG may still grant leave for the accused to appear by counsel where he provides evidence that he is unable to attend .

NORP In any event , ORG may order the accused to attend . No appeal shall lie against such a decision .

The judgment in which the accused is ordered to attend shall be served on the party concerned on an application by the prosecution , together with a summons to attend on the date determined by ORG . Where the accused fails to attend , the court shall determine the matter in his absence . ”

“ If the accused fails to attend the hearing , he shall be tried in his absence . ”

“ An accused who is convicted in his absence may lodge an application to set aside the judgment within DATE of the date on which it was served on him . ”

“ An application to set aside shall automatically be effective as a summons to attend the first hearing following the expiry of DATE , or DATE where the party lodging the application is in custody .

The application shall be void if the party who lodged it fails to attend the hearing . Save as hereinafter provided , no appeal by the party who lodged the application to set aside shall lie against ORG ruling .

Where appropriate , the court may make an interim award . Such an award shall be enforceable notwithstanding an appeal . ”

“ A judgment on appeal delivered in absentia may be challenged by means of an application to set aside made under the same procedure and within the same time - limits as a judgment delivered in absentia by ORG .

The application shall automatically be effective as a summons to attend the first hearing following the expiry of DATE , or DATE where the party lodging the application is in custody .

The application to set aside shall be void if the party who lodged it fails to attend the hearing . No appeal by the party who lodged the application shall lie against ORG ruling other than an appeal on points of law to ORG . ”

“ The provisions of the preceding ORG which relate to the formalities of judicial investigations , the nature of evidence , the form , authenticity and signature of final judgments delivered at first instance , orders to pay costs and the penalties applicable under those Articles shall also apply to judgments delivered on appeal . ”

Where an application to set aside has been declared void on the ground that the applicant failed to attend the hearing , the judgment which records the fact will itself be a judgment given in absentia . If the applicant again fails to attend the hearing , a second application by him to set aside will be inadmissible , in accordance with the maxim “ opposition sur opposition ne vaut ” ( an application to set aside a judgment delivered in absentia on an application to set aside an earlier judgment delivered in absentia is ineffective ) . Were the convicted person able to lodge a further application to set aside the decision of the court which refused in absentia his application to set aside an initial decision also delivered in absentia , he could , by failing to attend and lodging one application after another , indefinitely hinder the enforcement of any conviction and thus paralyse the administration of justice .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who lives in PERSON . He was represented before the ORG by PERSON , a lawyer practising in GPE .

The applicant ’s fiancée died in DATE after having given birth to the couple ’s second child .

The applicant ’s and the deceased ’s children claimed damages from the gynaecologist ( “ the respondent ” ) who had performed a caesarean section on the deceased prior to her death ; the case was settled before ORG .

The applicant also claimed damages from the respondent .

On DATE ORG dismissed the claim . It held that the applicant could not claim damages from the respondent pursuant to LAW ( see “ Relevant domestic law ” ) because the deceased had not been obliged by law to provide maintenance to the applicant . Section CARDINAL(CARDINAL ) of LAW could furthermore not be applied analogously to fill a lacuna in the law . The situation of partners living together out of wedlock , even if they raised their children together , was not comparable to that of spouses . Unlike spouses they were not obliged by law to provide maintenance to one another . The legislator had also been aware of calls for a widening of the application of Section CARDINAL(CARDINAL ) of LAW to other forms of partnership but had repeatedly refused to do so .

On DATE ORG informed the parties of its intention to dismiss the applicant ’s appeal for the reasons given by ORG . On DATE ORG dismissed the appeal and noted that Section CARDINAL(CARDINAL ) of LAW was not linked to the notion of family but to the existence of an obligation by law to provide maintenance .

On DATE ORG refused to admit the applicant ’s constitutional complaint for adjudication ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

Section CARDINAL(CARDINAL ) of the Civil Code provides that the person responsible for the death of a person must pay a third person damages by payment of an annuity for the presumed duration of the deceased ’s life to the extent that the deceased would have been obliged to provide maintenance to the third person under the conditions that the deceased , at the time of the injury , was obliged or might become obliged by law to provide maintenance to the third person and if the third person has as a result of the death been deprived of his right to maintenance .

An obligation by law to provide maintenance exists between lineal relatives ( Section CARDINAL of LAW ) , spouses ( Sections CARDINAL et seqq . of LAW ) , former spouses following a divorce ( Sections CARDINAL et seqq . of LAW ) and partners of registered same - sex partnerships ( LAW ) .


Violation of P1-1;Violation of Art. 6-1 (lack of oral hearing);Violation of Art. 6-1 (length of proceedings);Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in ORG . He is the owner of a property known as “ Humanisten CARDINAL ” located in the city of PERSON , in the south of GPE . On the property there is a CARDINAL - family house , which was built in DATE .

The applicant inherited the property from his father , who died in DATE . The area where the property is located was regulated by a city plan ( stadsplan ) which , in accordance with the provisional regulations under the new FAC of DATE ( Plan- och Bygglagen , - hereinafter “ the DATE LAW ) , became valid as a detailed development plan ( detaljplan ) . In order to facilitate the implementation of the detailed development plan , a more specific “ property plan ” ( fastighetsplan ) was adopted with respect to Humanisten CARDINAL .

The applicant ’s late father had applied on DATE to ORG ( byggnadsnämnden ) of PERSON for tentative approval ( förhandsbesked ) of a plan to divide FAC and build a new CARDINAL - family house . The purpose of such an approval , issued LAW , section CARDINAL of GPE , was to give a property owner who was planning a building project for which the grant of a building permit was uncertain the possibility to obtain an advance assessment of whether the planned measures may be permitted at all , thereby avoiding unnecessary project work and costs . In assessing an application for a building permit made within DATE after the grant of tentative approval , ORG was bound by the determinations made in that approval .

According to the detailed development plan in force , CARDINAL main building was allowed on the existing property plot ( the applicant ’s plot corresponded to his property ) . The request for tentative approval was motivated by the father ’s wish to build a house suited to his age , as he had difficulties in walking up and down the stairs of his current home .

NORP In DATE ORG decided to postpone its reply to the request until a new detailed development plan for the area had acquired legal force , but only until DATE . Subsequently , on DATE FAC Director ( PERSON ) adopted a new detailed development plan for Humanisten CARDINAL by which a division of the property was prohibited . Accordingly , ORG , on DATE , informed the applicant that he could not expect to be granted a building permit for a new CARDINAL - family house and therefore did not give tentative approval for the project .

As the new owner of the property , the applicant appealed against both decisions to ORG ( länsstyrelsen , - hereinafter “ the Board ” ) of GPE , claiming that FAC Director had not been competent to adopt a new detailed development plan since the plan was contentious . He claimed that the refusal to grant tentative approval was also based on false assumptions . On DATE the ORG , which agreed with the applicant , quashed the City Building Director ’s decision to adopt the plan and , on DATE , quashed ORG decision and remitted the matter to ORG for a new examination .

On DATE ORG granted the applicant a tentative approval , referring to his father ’s initial application ( of DATE ) for a tentative approval of a plan to divide the plot – Humanisten DATE and to build a new CARDINAL - family house . The decision moreover referred to ORG decision ( of CARDINAL DATE ) to quash the detailed development plan and the earlier refusal of a tentative approval . Without expressing any conditions or reservations , the decision stated that the applicant could expect a building permit for a new CARDINAL - family house and that this applied provided that an application for a building permit was submitted to ORG within DATE from the date of the decision . Finally , it stated that the tentative approval did not imply a right for the applicant to start the construction .

ORG referred the matter to the Land Survey ( lantmäteri ) of PERSON to prepare the question of the division of the plot ( tomtdelning ) .

On DATE the applicant applied for a building permit . After the matter had been considered by the relevant road network and energy authorities , the applicant submitted new plans on DATE . It appears that those proceedings were at a standstill until DATE ( see section CARDINAL below ) .

At DATE the Land Survey recommended that the property plan for DATE be repealed in order to facilitate a division of the property enabling the applicant to construct a new house on the resulting new plot . The Land Survey observed that ORG had , with binding effect , made the assessment that the addition of a new CARDINAL - family house would be consistent with the detailed development plan . A new property plan would not be required ; repeal of the existing property plan would be sufficient and the division of the property would be consistent with the detailed development plan and be suitable for its purpose .

Several of the applicant ’s neighbours opposed the measure with reference to the special character of the neighbourhood .

On DATE the ORG followed ORG suggestion and repealed the property plan for DATE .

NORP The owners of CARDINAL neighbouring properties appealed against the decision to ORG , claiming that the neighbourhood was worthy of preservation due to its special character and that new buildings would spoil the area . ORG visited the area before deciding on DATE to reject the appeal .

The neighbours appealed to the Government , invoking the same grounds as before ORG . The applicant also submitted his observations . On DATE the Government quashed the ORG ’s decision to repeal the property plan with , inter alia , the following reasoning :

“ The Government find that the decision to repeal the property plan for DATE ought to be considered in its context , namely to make possible a division of the property with the intention of constructing CARDINAL more family house .

The Government observe that the entire block has long been occupied by buildings in accordance with the city plan and plot divisions . The block has CARDINAL plots , the sizes of which vary between CARDINAL GPE and TIME . .... The Government find that the concentration which will be the result if CARDINAL , DATE FAC , were to be divided into CARDINAL properties and a new building were to be constructed , involves a not inconsiderable change to the ORG immediate surroundings . Nor can such a change be considered to comply with the shape that the block has been given through the city plan and the plot divisions . .... The Government thus find that the suitability of the intended change of the property and the development conditions within the block ought to be examined through a new detailed development plan for the area in which the size and situation of the buildings can also be regulated to a sufficient extent . In view of this and everything else which has emerged in the case , the Government find that the decision to repeal the property plan should be quashed . ”

The applicant applied to ORG ( Regeringsrätten ) for judicial review under LAW on ORG ( ORG om rättsprövning av vissa förvaltningsbeslut - hereinafter “ the DATE LAW ) , submitting that , since ORG tentative approval was binding on the examination of an application for a building permit , it effectively precluded an examination on the merits in the present case . Moreover , as ORG had previously considered the suitability of dividing the property when it granted the tentative approval , it was not legally correct of the Government to consider the suitability yet again . The Government ’s conclusion that the case should be reviewed through a new detailed development plan therefore lacked a legal basis .

The applicant further requested that an oral hearing be held in the case . In a decision of CARDINAL DATE ORG refused the applicant ’s request on the ground that the case could be examined and decided without holding an oral hearing . The applicant was given DATE to submit additional written observations .

On DATE ORG , unanimously , found that the ORG ’s decision was not unlawful and confirmed it . The court held :

“ According to section CARDINAL of the [ CARDINAL Act ] ORG must examine if the Government’

According to LAW , section CARDINAL , of the [ CARDINAL Act ] land may only be used for development if it is , from a public interest point of view , suitable for its purpose . The conditions on which an examination of suitability should be carried out through the adoption of a detailed development plan - and not solely in a matter concerning a building permit or a tentative approval - are specified in LAW , section CARDINAL , paragraph CARDINAL , of the [ CARDINAL Act ] . Thus , according to point CARDINAL of the aforementioned provision , a detailed development plan becomes relevant when a new single building is to be constructed , the use of which will have significant influence on its surroundings . The ORG ’s assessment that the suitability of the intended change of the property and the development conditions within the block ORG ought to be reviewed through a new detailed development plan for the area , is within the scope of jurisdiction of the authorities in planning matters . Hence , ORG finds that the decision to quash the lower instances’ decisions regarding the property plan does not conflict with any legal rule in the manner claimed by the applicant . Nor does the examination show that the decision , in any other manner , is contrary to any legal rule . It should therefore be upheld . ”

A request by the applicant for re - opening of the case was refused by ORG on DATE .

In the meantime , ORG , in DATE , adopted an amended detailed development plan which effectively prohibited a division of the applicant ’s property , and the construction of another building on it . Upon appeal , the ORG quashed the decision on the ground that it should have been decided by ORG ( kommunfullmäktige ) of PERSON . After renewed examination by ORG , it adopted the detailed development plan on DATE . The applicant appealed against the decision to ORG , which on DATE upheld the ORG ’s decision . It found that the public interest in protecting the cultural heritage of the neighbourhood outweighed the applicant ’s private interest . The applicant made a further appeal to the ORG , which was rejected on DATE .

On DATE , after ORG had given its opinion and the applicant had commented , ORG decided to reject his request of DATE for a building permit .

On DATE , the applicant appealed against the above decision to ORG . On DATE , after having granted the applicant several postponements from CARDINAL DATE to DATE , the ORG quashed the ORG ’s rejection and referred the matter back for a new consideration .

On DATE ORG served ORG decision of DATE to grant the applicant tentative approval on the applicant ’s neighbours , several of whom brought proceedings in DATE to have the measure quashed . They claimed that , although they were affected by the decision , ORG had failed to hear them in the case or inform them about the decision .

In a decision of DATE , the ORG first found that the neighbours were entitled to appeal against the tentative approval and was satisfied that they had done so within the required time - limit . Although they ought to have been aware of the tentative approval in connection with the property plan issue , the decision had been formally served or notified to them only in DATE . ORG quashed ORG DATE decision on the grounds that the tentative approval was contrary to the existing property plan and detailed development plan and the neighbours should have been given the opportunity to express their views on the matter before it was decided .

On DATE ORG appealed against ORG above - mentioned decision of DATE to ORG ( länsrätten ) of GPE . The applicant obtained extensions of time - limits for filing his written submissions in DATE and DATE , and in DATE he asked the court to give priority to the case .

Following the Board ’s above - mentioned decision of DATE on the tentative approval , the applicant appealed against this decision to ORG . The latter granted him CARDINAL extensions DATE and DATE of the time - limits for specifying his appeal grounds .

ORG examined both of the above appeals concurrently and on DATE it delivered CARDINAL judgments , CARDINAL on each appeal .

In the first judgment ORG rejected the applicant ’s appeal and upheld the ORG ’s reasoning .

In the second judgment it held that , since it had confirmed the ORG ’s decision , there no longer existed a tentative approval which was binding on ORG . Consequently , the ORG ’s appeal against the ORG ’s decision of CARDINAL DATE should be granted and the matter referred back to ORG for further consideration .

In DATE the applicant appealed against both judgments to ORG ( kammarrätten ) in GPE .

In the appeal concerning the tentative approval , ORG granted him CARDINAL extensions until DATE for the submission of his appeal grounds . As to his appeal concerning the building permit , the applicant was granted CARDINAL such extensions , also until DATE .

In CARDINAL separate decisions of DATE , ORG refused the applicant leave to appeal in each case .

In DATE and DATE the applicant appealed to ORG .

The latter granted him numerous extensions until DATE of the time - limits for filing written submissions on the appeal concerning the building permit . On DATE ORG ordered him to complete his submissions .

Concurrently with the above , he was also granted a number of extensions for the filing of his appeal submissions , until DATE in the case concerning the tentative approval . On that date ORG ordered him to complete his observations .

In respect of both appeals , reminders were served on him in DATE .

On DATE ORG refused the applicant leave to appeal in both cases .

In separate proceedings in DATE , the applicant requested ORG ( tingsrätten ) of PERSON to declare that GPE was liable to pay him compensation for both actual and potential damage caused by the GPE ’s refusal to grant his request for a building permit despite having granted him an unconditional tentative approval which was binding . The GPE denied responsibility .

By judgment of CARDINAL DATE ORG declared that the GPE was liable to compensate the applicant for both actual and potential damage caused by its refusal to grant the applicant a building permit . The LOC was further liable to pay his legal costs . ORG took note of the LOC ’s argument that the tentative approval was conditional upon an amendment to the property plan , and that the applicant was aware of the need to modify the property plan and ought to have understood that the positive tentative approval did not mean that he would be able to build without an amendment to the property plan . In the view of ORG the fact that a claimant was aware that an amendment to the property plan was needed in order to grant a building permit did not dispense ORG from specifically reviewing and justifying its position as to whether the desired measure was authorised by existing plans . What the applicant may have known about existing plans was therefore of no significance in this context . Since the applicable plans did not allow the grant of a building permit and since an amendment to the plan could not be a condition attached to a tentative approval , such approval should not have been granted . Nor was such knowledge significant for the assessment of his application for a building permit , refused on DATE . On the whole , the refusal was erroneous . ORG found that ORG had disregarded a clear and unambiguous provision in GPE , i.e. LAW DATE , which stated that a tentative approval was binding if an application for a building permit was made within DATE from the date on which the tentative approval was granted . Moreover , ORG found it remarkable that ORG had taken CARDINAL years to reject the request for a building permit since the average time to process such a request was DATE , according to testimony given by the city architect . Thus , the court considered that ORG handling of the case had involved such fault and neglect in its exercise of public authority that the Municipality was liable to pay compensation .

The GPE appealed to ORG ( hovrätten ) of GPE and PERSON , which on DATE upheld the lower court ’s judgment in full . As no further appeal was lodged , ORG judgment acquired legal force on DATE .

In DATE the applicant , invoking the above declaratory judgment , instituted civil proceedings against the GPE requesting compensation in an amount of SEK CARDINAL,CARDINAL,CARDINAL for the damage he had suffered due to the refusal to grant him the building permit . He claimed that this damage corresponded to the market value of the part of his property upon which he would have built the house . GPE contested the request .

In a judgment of DATE , ORG noted that the proceedings relating to the building permit were still pending and that it was improbable that he would be granted such a permit . However , even if he were to be granted a permit , the decision would most likely be quashed on appeal . Thus , it rejected the applicant ’s claim on the ground that he had not shown that he had suffered any actual damage as a consequence of the GPE ’s fault and neglect . The applicant appealed against the judgment to ORG .

By a judgment of DATE , ORG upheld ORG judgment of DATE , sharing the latter ’s view that the applicant had failed to show that a building permit granted by the ORG would have stood after the review by higher instances . The LOC could reasonably argue that the question of damage could not therefore be assessed only on the basis of the fact that the LOC was formally obliged to grant the applicant a building permit . It found that the applicant had not been able to demonstrate that the consideration of his application for a tentative approval by GPE , while blameworthy , had led to his being denied a definite right to divide and build a new house on his property . Nor had he demonstrated that the GPE ’s handling of his case had caused the damage for which he had claimed compensation .

The applicant appealed against the judgment to ORG , which on DATE refused the applicant leave to appeal .

The CARDINAL Act entered into force on DATE and contains provisions about the planning of land and water areas as well as buildings . Their purpose is to promote the development of a society characterised by equal and good living conditions for people DATE and for future generations , whilst having due regard to the freedom of the individual ( LAW , section CARDINAL ) .

The provisions of LAW which are relevant to the present case read as follows :

“ LAW provisions

Section CARDINAL

When issues are examined in accordance with this LAW , consideration shall be given to both public and private interests unless otherwise provided .

Section CARDINAL

Land shall only be used for development if it is suitable for this purpose from the public interest point of view . The examination of suitability is carried out in connection with a planning procedure or during the examination of an application for a building permit or tentative approval ....

LAW development plans and area regulations

Section CARDINAL

The examination of the suitability of the site for development and the regulation of the manner of design of the area of construction are to be carried out in accordance with a detailed development plan , which applies to

new continuous developments ;

NORP new individual buildings , the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites , or where the examination of the proposed building can not be carried out in connection with the review of the application for a building permit or tentative approval ....

LAW permit , demolition permit and land permit

Section CARDINAL

Upon application , the ORG shall give tentative approval for a particular measure , requiring a building permit , to be permitted on a designated site .

When a tentative approval is granted , it shall contain the necessary conditions . The tentative approval is binding if an application for a building permit is made within DATE from the date when the tentative approval was granted .

If an application for a building permit is not made within the time specified in the second paragraph , the tentative approval will cease to be valid . ... ”

The CARDINAL Act was introduced as a result of ORG Rights’ findings in several cases , notably against GPE , that lack of judicial review of certain administrative decisions infringed LAW . It was enacted as a temporary law to remain in force until DATE ; its validity has subsequently been extended , as from DATE without any limitation in time .

Pursuant to section CARDINAL of this LAW , a person who has been a party to administrative proceedings before the ORG or any other public authority may , in the absence of any other remedy , apply to ORG , as the first and only court , for review of any decisions in the case which involve the exercise of public authority vis - à - vis a private individual . The kinds of administrative decisions covered by the LAW are further defined in LAW , sections CARDINAL of ORG ( regeringsformen ) , to which section CARDINAL of the DATE LAW . LAW specifies several types of decisions falling outside its scope , none of which is relevant in the instant case .

In proceedings brought under LAW , ORG examines whether the contested decision “ conflicts with any legal rule ” ( section CARDINAL of the DATE Act ) . According to the preparatory work to the LAW , as reproduced in Government PERSON ( DATE ) , its review of the merits of the cases concerns essentially questions of law but may , in so far as relevant for the application of the law , extend also to factual issues ; it must also consider whether there are any procedural errors which may have affected the outcome of the case .

If ORG finds that the impugned decision is unlawful , it must quash it and , where necessary , refer the case back to the relevant administrative authority .

The procedure before ORG is governed by LAW DATE ( förvaltningsprocesslagen ) . It is in principle a written procedure , but ORG could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings ( section CARDINAL ) . As from DATE ( CARDINAL ) , section CARDINAL of the CARDINAL Act provides :

“ The [ Supreme Administrative ] Court shall hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary . ”


The applicant , Ms PERSON ORG , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by PERSON PERSON Włoch , a lawyer practising in GPE , GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant was arrested on charges of trafficking in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code of DATE , then in force .

On DATE ORG ordered her detention on remand . On DATE the applicant was released under police supervision .

On DATE ORG lodged a bill of indictment against the applicant and CARDINAL other persons . The applicant was charged with trafficking in children and perjury .

On DATE ORG discontinued part of the charges against the applicant . On DATE ORG gave a decision and discontinued the criminal proceedings against the applicant and against her coaccused in so far as they concerned charges under Article ORG .

The prosecutor and the applicant appealed .

On DATE ORG , partly amended the contested decision . On DATE ORG acquitted the applicant of the remaining charges of perjury . The prosecutor appealed .

The proceedings were terminated on DATE by ORG . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL ( dec . ) , § § CARDINAL , ECHR CARDINAL-V and Ratajczyk v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of PERSON v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINAL-V.


Preliminary objection rejected (incompatibility);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1;Not necessary to examine Art. 18+5-1 and P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim partially rejected;Just satisfaction partially reserved

The applicant , an NORP national born in DATE , is at present in custody in FAC on the island of GPE ( GPE ) .

He was arrested by the NORP police on DATE , released on CARDINAL May and arrested again on DATE on a charge of having abducted and murdered a CARDINAL-year - old NORP girl , PERSON , in Genoa on DATE It was alleged that he had hidden the body and tried to extort a ransom of MONEY from the victim 's father , an industrialist . He was also charged with indecency and indecent assault with violence on CARDINAL women .

On DATE , after DATE of hearings largely taken up by the evidence of CARDINAL witnesses , ORG sentenced him to DATE and DATE imprisonment for offences relating to one of the QUANTITY women ( the time spent in detention being reckoned as part of the sentence ) . He was acquitted of the other crimes with which he was charged , in particular the abduction of PERSON and its sequel , for lack of evidence ; and he was accordingly released .

The prosecution appealed to ORG of Appeal against the judgment ( which ran to CARDINAL pages ) . The hearing was set down for on DATE but had to be adjourned , because the defence challenged the presiding judge , alleging that he had publicly stated his conviction that Mr. PERSON was guilty . The appeal proceedings commenced on DATE after this challenge had been rejected by ORG , but the accused applied for an adjournment . On the evidence of a medical certificate , he claimed that he was in hospital being treated for renal colic and was thus unable to appear . The court found that he was deliberately refusing to appear ( contumace ) and proceeded with the hearing . Thereupon the defence entered a fresh challenge in respect of the presiding judge and lodged an objection impugning ORG on grounds of bias ; the challenge and the objection were dismissed by ORG on DATE . In the absence of the applicant , the proceedings then resumed before ORG , which refused to hear some of the defence witnesses . Considering that they could no longer perform their duties in these circumstances , the applicant 's principal counsel withdrew from the case , and the defence was from then on conducted by a single lawyer who had been instructed not long before .

On DATE , ORG , giving judgment in absentia , sentenced Mr. PERSON to life imprisonment ( ergastolo ) for the crimes relating to PERSON and to DATE imprisonment for the other crimes ; the court held that there were no extenuating circumstances .

ORG On DATE , ORG dismissed the applicant 's appeal on points of law against this judgment , whereupon the public prosecutor 's office in Genoa issued a committal order , on DATE , and the NORP police circulated an international arrest warrant , DATE .

ORG Mr. PERSON had in fact taken refuge in GPE , at first living on LOC and then in central GPE . He assumed the ( false ) identity of PERSON - at any rate after a certain time .

ORG On DATE , the NORP gendarmerie arrested him in the course of a routine check in the département of ORG and on DATE he was taken into custody at FAC ( GPE - Vienne ) pending extradition proceedings . He was served with the document authorising his arrest and the documents produced in support of the extradition request , and the public prosecutor attached to at ORG examined him under LAW ) of LAW of DATE ( " LAW " ) . On DATE , GPE officially applied to GPE for his extradition under a bilateral treaty of CARDINAL DATE .

ORG On DATE , ORG of ORG , to which the case had been submitted in accordance with section DATE CARDINAL Act , ruled against extradition after hearing the public prosecutor , the applicant 's counsel and the applicant himself . It found that the request was in order as far as the DATE treaty and LAW were concerned but held that the NORP procedure for trial in absentia , which had been followed in this case by ORG , was incompatible with NORP public policy ( ordre public ) , because even in respect of indictable offences ( and not just of lesser ones ) it was possible under that procedure to pass an enforceable sentence on an accused who had not appeared in person before the court , without the adversarial proceedings which formed the basis of NORP criminal procedure and without any provision for making a retrial obligatory .

By virtue of LAW , this negative ruling was final and binding on ORG , which accordingly declined to extradite the applicant .

ORG Mr. PERSON nonetheless remained in prison at GPE , because he had been charged in GPE with fraud and with forgery and falsification of administrative documents and use thereof .

On DATE , the investigating judge found that ORG seemed to have acted merely as an executing agent and not to have planned and directed the frauds with which he was charged ; the details which he had " preferred not to reveal " related to the circumstances at the beginning of his residence and not to the matters in issue ; there were a considerable number of extentuating circumstances in connection with the making of the false identity documents ; it was no longer necessary to keep him in prison in order to ascertain the truth , but on account of his " special administrative position " he had to be placed under judicial supervision . The investigating judge therefore ordered his release on bail of MONEY and subject to certain conditions .

The public prosecutor 's office appealed against this order , but ORG of ORG upheld it on DATE . DATE , despite the prosecution 's opposition , the investigating judge had decided that there were no grounds for keeping Mr. PERSON in custody .

ORG The applicant was immediately released . He has claimed that on DATE , DATE , he applied for a residence permit at ORG but was refused an acknowledgment of receipt of this application . The Government have stated that there is no trace of this application in the official archives , but they have not denied that it was made . At all events , Mr. PERSON 's lawyer in GPE wrote to the Prefect on DATE in support of his client 's course of action .

For its part , the NORP consulate - general in GPE had stated on DATE - without giving any reasons - that it was unable for the time being to provide the applicant with an identity document ; this was in reply to a letter sent to it DATE by another lawyer acting for the applicant , who was a member of ORG .

On DATE , the investigating judge issued a discharge order in respect of the fraud charge , an order terminating judicial supervision , and an order committing the applicant for trial at ORG on charges of forging and falsifying administrative documents and using false identity documents ( contrary to GPE and CARDINAL of LAW ) .

ORG The account given hereafter in DATE , DATE and CARDINAL is based mainly on information and documents supplied to the ORG and , subsequently , to the ORG by Mr. PERSON 's lawyers . The Government have not formally challenged its accuracy , but they have expressed reservations in respect of CARDINAL or CARDINAL matters ; they acknowledge , however , that they can not be certain or adduce any evidence to the contrary .

ORG On TIME of DATE , at TIME , CARDINAL plain - clothes policemen , CARDINAL of whom was armed , stopped Mr. PERSON as he was returning home after an interview with his GPE lawyer and ordered him to follow them . When he protested , they seized him and forced him to get into an unmarked car . He was handcuffed and driven to GPE police headquarters . There CARDINAL other men arrived shortly afterwards who said they had come specially from GPE ; they served him with a deportation order ( without giving him a copy ) .

ORG This order , which had been made DATE - on DATE - by the Minister of the Interior at the instance of the Prefect of Haute - Vienne and was signed by ORG , read as follows :

" THE MINISTER OF THE INTERIOR

Having regard to LAW ,

Having regard to the Decree of DATE ,

Having regard to information obtained concerning PERSON , born on DATE in ORG ( GPE ) ;

Deeming that the presence of the above - mentioned alien on NORP territory is likely to jeopardise public order ( ordre public ) ,

BY THIS ORDER REQUIRES :

the above - named to leave NORP territory ;

the Prefects to execute this order .

GPE , DATE . "

ORG The applicant refused to sign a police report stating that he complied with this decision of his own free will . On the contrary , he emphatically opposed deportation and demanded to be brought before ORG provided for in LAW DATE .

He was told that this was out of the question and that he was going to be taken at once to GPE ( and not to the NORP border , which was the nearest frontier ) . Accordingly , without first being ordered to leave GPE for a country of his choice or being allowed to inform his wife or his lawyer , he was forced to get into an unmarked ORG and sit , still handcuffed , between CARDINAL police officers . At TIME the car left for ORG , preceded by a police car which led the way . It reached the frontier near ORG on DATE in TIME . At first it was unable to cross ; after a long telephone conversation between the officer in charge of the NORP policemen and the NORP authorities , it proceeded to the NORP customs post at GPE .

After a further telephone conversation , there appeared an unmarked Opel with a NORP number plate , and a NORP policeman got out . He put other handcuffs on Mr. PERSON , who was made to sit on the back seat between this policeman and a NORP one . The Opel entered GPE at TIME , escorted by the ORG with the other CARDINAL NORP policemen aboard . The QUANTITY vehicles drove to the police station in FAC in GPE .

The applicant , who had no identity papers , was informed at TIME that GPE was requesting his extradition . He was then provisionally taken into custody at FAC , as had been requested that DATE by ORG when it informed the GPE police that the diplomatic request would be arriving shortly .

As early as DATE and DATE , ORG had telexed several GPE , including GPE , to inform them that Mr. PERSON would shortly be deported from GPE . The documents later supplied by GPE in support of its request were dated DATE , a DATE .

ORG In DATE , GPE , to which GPE is bound by LAW DATE , had requested GPE to extradite the applicant , and the latter 's name had accordingly been recorded in ORG ( PERSON suisse de police ) of DATE as being the subject of a " warrant for arrest pending extradition proceedings " .

Mr. PERSON was extradited to GPE on DATE after ORG had rejected his objection on DATE . He is currently serving his sentence in FAC on the island of GPE , as NORP law - unlike the NORP system - makes no provision for obligatory retrial after proceedings in absentia ( cf . LAW ) . It appears that he has never ceased to claim that he is innocent of the appalling crime of which he was convicted , but unless he is given a retrial ( revisione ) or a pardon , he will not be eligible for release ( on parole ) until DATE .

ORG On DATE and DATE , Mr. PERSON 's lawyer had had recourse to CARDINAL remedies in GPE .

ORG In the first place , they summoned the Minister of the ORG to appear in urgent proceedings before the presiding judge of the GPE tribunal de grande instance on DATE .

According to them , the " operation " carried out on TIME DATE had CARDINAL major defects , any CARDINAL of which was sufficient to classify it as arbitrary and thus constituting a flagrantly unlawful act ( voie de fait ) . Mr. PERSON 's " brutal arrest " was obviously a vital stage in the execution of the deportation order but could not be justified by the order because it had preceded notification of the order . The authorities could not prove that the execution of the administrative act had met with definite resistance or at least obvious unwillingness to comply : they had quite simply not left the applicant " any time to do anything at all " , and in any case it would have been in his interests to comply voluntarily so as to be able to choose the country in which he would take refuge . Finally and most importantly , the executive had no automatic right of enforcement in this matter .

Furthermore , there was the flagrant unlawfulness of the order itself . It was contrary to the decisions to release the applicant and to discharge the judicial supervision order that had been taken by the investigating judicial authorities on DATE and DATE , and to the negative ruling of CARDINAL DATE by ORG of ORG ( see paragraph CARDINAL above ) ; and in choosing GPE out of CARDINAL neighbouring countries , against the applicant 's will , the authorities knew that they were handing him over to ORG most likely to extradite him to GPE , owing to the existence of an extradition agreement between GPE and GPE and the nationality of the murdered girl .

Mr. PERSON 's lawyers further pointed out that the matter was urgent because ORG was about to take a decision on the NORP extradition request ( see paragraph CARDINAL above ) , and that their client had been improperly removed from the jurisdiction of the NORP courts , seeing that the investigating judge had committed him for trial at ORG on a charge of using false identity documents ( see paragraph CARDINAL above ) .

They therefore sought an injunction from the presiding judge of the GPE tribunal de grande instance requiring the Minister of the ORG to apply to the appropriate NORP authority , within DATE of the interim order 's being made , for the return of their client .

ORG In his submissions of CARDINAL DATE , the Minister pointed out that LAW of CARDINAL DATE forbade any interference by the ordinary courts with administrative acts . He drew the inference that the application must be dismissed and the applicant left to take proceedings in the proper courts if he so desired .

The GPE Commissioner of Police likewise entered a plea in bar alleging want of jurisdiction , which the procureur de la PERSON ( public prosecutor ) argued at the hearing , submitting that the parties should be referred to the administrative court . He too based his argument on LAW and , in addition , LAW of CARDINAL fructidor of DATE , which forbids the courts to deal with administrative acts of any kind whatsoever . There was nothing to prove that the deportation order complained of and its enforcement had amounted to a flagrantly unlawful act , that is to say , that they were manifestly incapable of being related to the application of a statute or regulations . In particular , the investigating judicial authorities ' order for the applicant 's release and their decision to discharge the judicial supervision order did not establish that Mr. PERSON 's presence on the national territory did not constitute a threat to public order . Furthermore , it was in the nature of deportation to be effected by coercion if need be ORG , DATE , ORG périodique DATE ) . As to the negative ruling by ORG of ORG on DATE , it did not forbid taking Mr. PERSON to the NORP frontier , as ORG had agreed to accept him .

ORG On DATE , the presiding judge of the GPE tribunal de grande instance made an order stating that there were no grounds for hearing the case on an urgent application because the application , " as it [ put ] relations between GPE in issue , [ was ] not within the jurisdiction of the judge competent to hear urgent applications in the ordinary courts " . This decision was preceded by reasons which read as follows ( translation from NORP ) :

" The various events between ORG 's being apprehended and his being handed over to the NORP police disclose manifest and very serious irregularities both from the point of view of NORP public policy ( ordre public ) and with regard to the rules resulting from application of LAW . Moreover , it is surprising that precisely the NORP border was chosen as the place of deportation although the NORP border is nearer GPE . Lastly , it may be noted that the courts have not been given an opportunity of making a finding as to the possible infringements of the deportation order issued against him , because as soon as the order was served on him , LOC was handed over to the NORP police , despite his protests . The executive thus itself implemented its own decision .

It therefore appears that this operation consisted , not in a straightforward expulsion on the basis of the deportation order , but in a prearranged handing over to the NORP police ... "

ORG The applicant 's lawyers considered that there was no point in appealing . It should be noted in this connection that ORG ( Tribunal des conflits ) has held that even an unlawful decision to deport does not amount to a flagrantly unlawful act and that consequently only the administrative courts have jurisdiction in the matter ( Préfet du Rhône c. Tribunal de grande instance GPE and GPE c. Ministre PERSON , DATE , PERSON , DATE , p. CARDINAL ) .

ORG On DATE , the applicant 's legal advisers had applied , secondly , to ORG , to have the deportation order of DATE set aside .

They argued in substance that this had been made by an unauthorised entity as it did not bear the Minister of the ORG 's personal signature . It was " bad for error of law " to the extent that it was based on Mr. PERSON 's previous conviction , because ORG of ORG had rejected as being contrary to NORP public policy the conviction in absentia by ORG ( see paragraph CARDINAL above ) . There had also been an abuse of powers , since the matter had been one , not of requiring Mr. PERSON to leave NORP territory , but of handing him over to the country which was more likely than any other to extradite him to GPE ; and a manifest error of judgment , inasmuch as the order complained of was based on the applicant 's behaviour in GPE - the use of a false document had seemed to him to be the only way of escaping prosecution for a crime of which he held he was innocent , and the investigating judge had found that there were a considerable number of extenuating circumstances in relation to the offence ( see paragraph CARDINAL above ) . The authorities should have looked at the whole case to determine whether Mr. PERSON 's presence amounted to a threat to public order . The order complained of had not complied with the provisions of Community law ( LAW and ORG Directive CARDINAL ) . Furthermore , the authorities had disregarded all the formal requirements of Directive CARDINAL and LAW DATE : Mr. PERSON had not been served with a refusal to issue a residence permit , had not been able to submit his observations to ORG , had not been informed of the reasons of public policy on which the administrative decision was based , and had not been given a reasonable period to leave NORP territory . Only urgency could have absolved the executive from its duty to comply with these mandatory rules , but there had been no such urgency in the instant case nor had it been relied on at any time .

ORG Initially ( DATE ) , the Minister of the ORG opposed this argument , contending , inter alia , that the circumstances in which an administrative decision was executed did not affect the lawfulness of the decision ; but in further pleadings , sent by telegram on DATE , the Minister of the ORG and for ORG stated that he desired to leave the matter to the discretion of the court .

ORG The court gave judgment on DATE . Without ruling on the other grounds , it held that the Minister of the ORG had committed " a manifest error of judgment " and the administrative authorities an " abuse of powers " .

On the first point the judgment read as follows ( translation from NORP ) :

" The Minister ... refers to the applicant 's use of false administrative documents and to his behaviour in GPE ;

The fact of having used false identity documents to enter GPE and reside there can not of itself , in the absence of any aggravating circumstances , be considered as amounting to a threat to public order ;

It appears from the documents on the file ... that the only factor to which regard was had in respect of the applicant 's behaviour in GPE was a criminal conviction and sentence in absentia ... ; in the absence of any truly adversarial proceedings , the very serious offence of which Mr. PERSON was accused , and which he has always denied , can not be regarded as having been adequately proved ... "

The finding that there had been an abuse of powers was based on the following circumstances ( translation from NORP ) :

" Whereas the haste with which the impugned decision was enforced , when the individual concerned had not even indicated his refusal to comply , and the choice of the NORP border which was imposed on the individual clearly show the real reason behind the decision : in reality the executive sought , not to expel the applicant from NORP territory , but to hand him over to the NORP authorities via the NORP authorities , with whom GPE had an extradition agreement ; the executive was therefore seeking to circumvent the competent judicial authority 's negative ruling which was binding on ORG ; ... the impugned decision was [ therefore ] an abuse of powers ... "

The court accordingly quashed the deportation order .

The Minister of the ORG and for Decentralisation did not appeal .

ORG The applicant 's legal advisers had considered it unnecessary to couple their application for the order to be set aside with an application for a stay of its execution . Had they done so , such an application would have had to be made - at that time - to the PERSON d'Etat and not to ORG .

ORG According to the information provided by the Government , Mr. PERSON was not summoned to appear at ORG on the charges of forging and falsifying administrative documents and uttering false identity documents ( see paragraph CARDINAL above ) . The prosecuting authorities considered that the nature of the offences charged did not justify continuing the proceedings in view of the fact that the accused had been deported .