The applicants are PERSON , ORG , PERSON , PERSON and PERSON . They are siblings of PERSON , a black man who was killed as a result of being set on fire by assailants in a racist attack during TIME DATE . The applicants are all NORP nationals living in GPE . They are represented before ORG , a firm of solicitors practising in GPE , GPE .

At the time of his death , PERSON was a single DATE black man . He suffered a mental breakdown in DATE and was subsequently diagnosed and treated in hospital for schizophrenia . After DATE , PERSON frequently received treatment at ORG for his mental condition .

When PERSON was not in hospital he lived in his own accommodation in GPE , GPE . However , DATE before his death he moved into accommodation for persons with mental health problems at FAC , GPE .

On DATE , PERSON was given leave from ORG and went to stay at FAC .

On TIME , at TIME , PERSON telephoned PERSON at FAC . She told him that she had received a message from ORG that he was to return there as soon as possible for his “ ward - round ” . Some time after that telephone call PERSON left FAC with the apparent intention of returning to ORG .

It appears that having left PERSON , PERSON took the wrong bus for his destination and he ended up getting off the bus in GPE , GPE . He was subsequently attacked by CARDINAL white youths who had got off the bus with him . They set his back on fire , probably whilst he was lying face down on the ground .

He was found on fire at TIME on DATE by an off - duty fireman who had been passing by in a car . At the time he was found , PERSON appeared to be in a severe state of shock with severe burns to his back , buttocks and upper thighs . The off - duty fireman flagged down a passing police car with CARDINAL police officers in it . They in turn summoned an ambulance .

According to the applicants , the CARDINAL police officers did not treat the circumstances of PERSON ’s discovery as suspicious and wrongly assumed that he had set fire to himself . Consequently , they failed to investigate the crime scene at all at that stage or to set in motion any trains of inquiry to search for or identify and catch PERSON attackers . It was only after specific instructions from PERSON family at a later stage that the police began to treat the attack as suspicious and to investigate it .

An ambulance arrived and PERSON was taken to ORG where he was admitted and treated . It seems that the police officers left the scene of the incident when PERSON was taken to hospital .

PERSON was found to have sustained full thickness third degree burns to PERCENT of his body . Owing to the severity of his burns , he was transferred to ORG in ORG .

Sometime between TIME and TIME on DATE , CARDINAL officers arrived at the house of PERSON , PERSON friend , in the mistaken belief that he was PERSON next - of - kin . It appears that the police had made this mistake as a result of inquiries to ORG where PERSON name and address were obtained .

The CARDINAL police officers told PERSON that PERSON had set himself on fire whilst walking along FAC in LOC . The officers repeated this and stated that PERSON had been lucky because they had been passing , saw him on fire and had stopped and helped to extinguish the fire . PERSON asked these officers if they had informed PERSON family . They told him they had not and he immediately gave them the address of PERSON brothers , PERSON and PERSON .

Shortly afterwards , again sometime between TIME , the same QUANTITY police officers arrived at PERSON and PERSON home . The police officers told them that PERSON had set himself on fire in GPE , that he had been seriously injured and had initially been taken to ORG but had been subsequently transferred and was receiving treatment in LOC in ORG . The officers then asked PERSON to sign for some charred papers and CARDINAL burnt keys which had been found on PERSON person and asked him whether PERSON had been on medication or whether he had a mental health background .

ORG and PERSON immediately went to ORG TIME They could not see PERSON at first because he was still receiving treatment for his burns . At TIME they were allowed to see him briefly . He appeared alert and lucid and was able to answer their questions . PERSON asked his brother what had happened and PERSON replied that he had been attacked by CARDINAL white boys .

PERSON explanation to his brother conflicted with the report given by the police officers and so PERSON telephoned ORG at TIME on DATE . He spoke to a police officer and told her that PERSON had told him that he had been attacked by CARDINAL white boys .

On TIME , PERSON telephoned the hospital and was able to speak to PERSON . Once again , although in pain , he was lucid and able to tell his sister about his recollection of the incident . He said that he remembered catching a bus in the wrong direction and that there had been CARDINAL white boys on the bus , CARDINAL of whom had been wearing a black leather jacket . He had got off the bus at the same stop as these white boys and followed them to ask for directions . He remembered that shortly after this he was leaning against something and then had felt something on his back . He then discovered that he was on fire and started to take his clothes off .

Following this conversation PERSON spoke to the ward sister at the hospital and a consultant treating PERSON and received confirmation that there were no contra - medical indications preventing PERSON from being interviewed by the police . She also made requests to the police that they should come and interview PERSON about the attack .

Over TIME , PERSON again asked PERSON about what had happened . PERSON gave the same account . PERSON took notes on these occasions . PERSON had been asked to keep notes of these conversations by his sister , PERSON , because the police had resisted her requests to take a statement directly from PERSON .

PERSON called the police on CARDINAL occasions from DATE urging them to come to the hospital to take a statement from PERSON . PERSON also called the police on repeated occasions over the same period requesting them : to take a statement from PERSON ; to go to the site of the incident ; to take finger prints from the telephone box near to the place where PERSON had been found ; to interview local people ; to put up an incident board requesting information ; and to launch a media appeal for witnesses .

On DATE Detective Inspector PERSON came to the hospital , but he arrived at a time when PERSON was drowsy . Detective Inspector PERSON decided not to take a statement from PERSON . PERSON gave a statement to Detective Inspector PERSON summarising PERSON ’s account of the incident . However , during this meeting PERSON became very concerned because Detective Inspector PERSON did not appear to take a full or accurate record of what PERSON was saying .

During the period DATE PERSON received surgical treatment DATE . When he was not in a post - operative state and up until DATE , he was lucid , sitting up , talking to his family , feeding himself , doing crosswords , chatting with hospital staff and taking telephone calls . This included a telephone conversation with PERSON during which PERSON repeated his account of the incident and the attack by CARDINAL young white men which , he stated , had occurred near a telephone box in GPE .

Notwithstanding PERSON ’s ability to make such statements to his family and friends , neither Detective Inspector PERSON nor any other police officer took a statement from him at any stage .

On DATE PERSON had a cardiac arrest and fell into a coma until DATE , when he died .

On DATE the inquest into PERSON death before the Coroner ’s ORG was opened . It was adjourned on a number of occasions . During this time the police reported to the Coroner on several occasions , but copies of these reports were not disclosed to PERSON family .

In DATE an examination into the procedures and practices during the first stage of the investigation into PERSON death was carried out by ORG ( “ ORG ” ) . In DATE the results of this examination were produced . The family were informed that this examination confirmed some of the doubts that the enquiry was not handled as well as it could have been and that an Investigating Officer had been formally appointed to look into the matter . The examination was made available to the Coroner but was kept back from the family as being confidential .

On DATE the PERSON family sent a letter of complaint to ORG ( “ PCA ” ) concerning the ORG ’s decision to withhold evidence from PERSON family prior to the inquest .

On DATE Deputy Assistant Commissioner PERSON of Area CARDINAL of the ORG responded informing the family that the complaint did not fall within CARDINAL of ORG and therefore would not be recorded as such . This letter went on to respond to points of concern expressed in the letter of complaint .

On DATE a verdict of unlawful killing was returned by a jury at ORG following a hearing lasting DATE during which evidence had been given by a number of witnesses including fire experts on behalf of the ORG .

On DATE Deputy Assistant Commissioner PERSON issued a statement on behalf of the ORG regretting that for DATE after the attack on PERSON , the police treated it as a case of self - immolation .

On DATE the family lodged a further letter of complaint with the ORG setting out the particulars of complaints in detail from the time that PERSON was discovered by the police in TIME of DATE until shortly after the inquest . The following criticism of the police ’s handling of the case was made in the letter of complaint :

There were major errors in the police investigation of PERSON death , at the very outset of the case ( and beyond ) which substantially diminished the chances of detecting and prosecuting those responsible for PERSON death .

NORP There was a concerted effort by all key officers ( from the officers first on the scene , to Deputy Assistant Commissioner level ) to minimise and obscure these errors and deflect criticism from the police .

These imperatives led the police :

– to continue , beyond TIME of the investigation of PERSON death , to fail diligently or promptly to investigate the death ;

– to pressurise , abuse and mislead the PERSON family about how PERSON met his death and the police investigation , with a view to affecting their ability properly to grieve and be represented at the inquest ;

– improperly to influence the Coroner conducting the inquest and to seek to lead the jury to bring a verdict which was least embarrassing to ORG .

NORP The police investigation into PERSON death was affected by racism and the subsequent internal investigation into the quality of the investigation failed even to address this issue .

The ORG appointed the Chief Constable of ORG to carry out an investigation into the family ’s complaint .

On DATE the applicants were advised by Counsel that there were no reasonable grounds for advising the grant of legal aid to bring proceedings against the police in the light of the domestic law in respect of actions in negligence and claims of racial discrimination against the police .

On DATE a Report of an Inquiry chaired by Sir PERSON of ORG , a retired High Court Judge , was published into matters arising from the death of PERSON , a black CARDINAL-year old youth who was murdered by a group of youths on DATE . The Inquiry investigating his death and its subsequent investigation by the ORG found that institutional racism existed both in the ORG and in other police services and institutions countrywide . The ORG found institutional racism primarily apparent in the actual investigation of PERSON murder , including the police treatment and approach to the victim , key witnesses and the family of PERSON and the “ lack of urgency and commitment in some areas of the investigation ” .

On DATE the family of PERSON , with the assistance of campaigners , leafleted the area within which the suspects lived appealing for further information in respect of the murder .

On DATE a suspect was arrested and later charged in connection with the death of PERSON . CARDINAL further suspects were arrested and later charged on DATE . CARDINAL of the accused ( GPE and ORG ) were committed for trial at ORG , GPE , for the murder of PERSON and conspiracy to pervert the course of justice . The third accused ( PERSON ) was committed to stand trial at ORG for conspiracy to pervert the course of justice . On DATE another suspect ( ORG ) was arrested in northern GPE and charged there on CARDINAL DATE with the murder of PERSON .

On DATE the applicants’ solicitor wrote to the ORG asking that the ORG also investigate other areas of complaint including the failure of the pre - inquest investigating teams to co - operate fully with ORG and the making of untrue and misleading press statements damaging to PERSON family .

On DATE the applicants’ solicitor was informed that the ORG had felt it wise to delay any further investigation into the applicants’ complaints pending the outcome of the criminal case against the accused in the LANGUAGE courts .

Further letters of complaints were addressed by the applicants’ solicitors to the Director of ORG alleging a failure on the part of the Task Force to liaise or to communicate adequately with the PERSON family in respect of the criminal proceedings against the accused including the trial taking place in northern GPE .

On DATE a criminal court in northern GPE found GPE guilty of the manslaughter of PERSON and sentenced him to CARDINAL years’ imprisonment . By letter dated DATE , the applicants’ lawyer informed the Registry that the accused ’s appeal had been rejected on DATE .

In DATE ORG in GPE found GPE guilty of murder and sentenced him to life imprisonment . ORG received a DATE prison sentence for manslaughter . PERSON ( and his co - accused ) was convicted of perverting the course of justice in connection with the murder of PERSON and the subsequent investigation . All CARDINAL accused received separate sentences on this count . According to the ORG lawyer ’s letter of DATE , all of the accused ’s appeals were rejected although the sentence of CARDINAL of them was reduced .

The applicants maintain that the evidence given in the trials against the accused revealed the inadequacy of the police investigation . The applicants listed CARDINAL areas of concern in a letter addressed by their solicitor to the ORG on DATE , including : the unfounded belief of police officers following the attack on PERSON that he had tried to commit suicide ; the failure to seal the scene of the crime resulting in a loss of evidence ; the failure to record or act on PERSON accounts to medical and nursing staff that other persons were responsible for what happened to him ; the error of the police in recording the deceased ’s injuries as non - life - threatening ; threats made to and harassment of members of the deceased ’s family by the police when , for example , they queried the police appeal for witnesses to come forward ; assertions made by a police officer at the inquest that there was no evidence that others were involved in PERSON death ; and the conduct of the police with respect to the conduct of the inquest and the criminal trials .

The PERSON family members made formal statements to the GPE Constabulary investigating the case on behalf of the ORG in support of these complaints , as well as the complaints set out in the letter dated CARDINAL DATE from the applicants’ solicitor .

On DATE the ORG wrote to the applicants’ solicitor reporting on the evidence collated to date . The letter stated among other things :

“ Carefully examining TIME will be fundamental to understanding what came later as it appears that once flawed explanations had entered the minds of police officers , to varying degrees it appears it remained present throughout the ensuing period up to , including and after the inquest . To what extent racial stereotyping of both PERSON and the PERSON family took place and how this may have affected the investigation of his death will be an integral part of the investigation throughout . Similarly we will be examining whether there was an institutional failure by ORG to challenge with sufficient rigour the assumptions made at the start . This will include examining this issue up to and including Chief Officer levels if necessary . ”

On DATE the ORG wrote to the applicants’ solicitors stating , among other things :

“ There is now available a significant body of evidence containing new information about these events , which appears to provide support for the family ’s complaints from a number of independent directions .... ”

On DATE the applicants’ solicitor received an anonymous statement dated DATE from a member or ex - member of the ORG . This statement , purportedly made on behalf of certain unidentified “ serving and retired members ” , contained serious allegations of misconduct by certain police officers involved in the investigation , including an allegation that one had lied to the Coroner during the inquest proceedings .

On DATE the ORG representatives were informed at a meeting that the ORG had begun to interview CARDINAL police officers under caution but that CARDINAL had chosen to answer questions . A further difficulty was that certain key police officers had retired or were about to retire and could not be interviewed without their consent , and in any event not under caution . A report could not expected before DATE at the latest .

CARDINAL key officer ( S. ) retired on at DATE and was therefore no longer subject to the police disciplinary code .

On DATE the ORG informed the applicants’ solicitors in writing that it had received the Investigating Officer ’s report and that the ORG was satisfied with the investigation which had been carried out into the applicants’ complaints . A copy of the report ( which was supported by CARDINAL statements , CARDINAL documents , CARDINAL interviews with officers under investigation and CARDINAL appendices ) had been made available to ORG ( “ ORG ” ) . The applicants’ solicitors’ were further informed that they would be notified if the ORG decided to bring criminal charges in the event of findings that any police officers had committed a criminal offence . The ORG ’s letter concluded :

“ I regret that there may be yet further delay while these next steps in dealing with your complaint are completed . The ORG will consider the disciplinary aspects of the case only after any criminal issues have been decided . ”

In GPE it is a rule of the common law that no one can recover damages in tort for the death of another ( PERSON v. PERSON ( DATE ) CARDINAL Camp . CARDINAL ) .

The Section CARDINAL of LAW DATE confers a right of action for a wrongful act causing death . LAW ) of that LAW provides that an action may be brought for the benefit of the “ dependants ” of any deceased person against a person who wrongfully caused the death . If there is no dependency , there is no pecuniary loss to recover as damages . Bereavement damages ( currently fixed at £ MONEY ) are only available to parents of a child under DATE ( sectionCARDINALA(CARDINAL ) ) . Funeral expenses are recoverable ( section CARDINAL(CARDINAL ) ) .

The statutory survival of causes of action enables recovery on behalf of the deceased ’s estate of damages for losses suffered by the deceased before he died . This includes any non - pecuniary loss such as damages for any pain and suffering experienced between the infliction of injury and death .

Domestic case - law on the liability of the police at the relevant time in civil law for acts or omissions in the investigation and suppression of criminal offences is summarised in the ORG ’s PERSON v. the GPE judgment ( Reports of Judgments and Decisions PERSON ) .

On DATE ORG received Royal Assent . The aim of this LAW ( “ the LAW ” ) is to bring about changes to LAW DATE ( “ the DATE LAW ) by allowing applicants to bring proceedings in respect of racially discriminatory acts by ( among other public authorities ) the police in carrying out their public duties of law enforcement and investigation , and to bring proceedings against the chief officers of police for acts of racial discrimination by police officers under their command . LAW has no retrospective effect .

Section CARDINAL provides for the application of the provisions of the LAW to persons holding statutory office as it applies to private persons . Therefore police constables are subject to its provisions .

A discrimination claim against the police in the conduct of its investigations may only be brought if it falls within the exhaustive provisions set out in LAW and , in particular , section CARDINAL , which deals with the provision of services to the public or a section of the public .

ORG has held in the case of PERSON -v- Commissioner of Police of the LOC [ DATE ] CARDINAL WLR CARDINAL that only those parts of a police officer ’s duties involving assistance to or protection of members of the public amount to the provision of services to the public for the purposes of section CARDINAL ) of the CARDINAL Act . According to the applicants , this greatly limits the scope of any claim under LAW against the police . In the applicants’ conclusion , there is no provision in LAW that permits an action to be brought in respect of the police investigation of the attack on PERSON or confers any legal remedy in respect thereof .


Anatoly Kovler;Antonella Mularoni;Elisabet Fura;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in Monistrol - d’Allier .

On DATE the applicant and his wife purchased by notarial deed a dwelling house built on land in the municipality of GPE , in the département of GPE . The house had been built on a dyke that overlapped with land on the seashore falling within the category of maritime public property .

It can be seen from the various documents relating to the house that , by a decision of DATE , the prefect of ORG had authorised Mr A. , in consideration of payment of a charge , to “ retain on maritime public property in the cove of ORG , in the municipality of GPE , a dyke ... on which stands a dwelling house ” . The house had allegedly been built prior to that decision despite a decision of the prefect of CARDINAL DATE refusing an application for a building permit . The decision of CARDINAL specified that “ the existence of this dyke and dwelling house on maritime public property was recorded in DATE ... and the permittee undertakes to pay the charge from DATE ” . It also pointed out that the dyke , irregularly shaped and of a surface area of QUANTITY . m , on which stood the dwelling house measuring MONEY by QUANTITY , “ can not interfere in any way with navigation rights or maritime coastal traffic on condition that steps are built at DATE of the dyke in order to facilitate public access ” and that the authorities “ reserved the right to modify or withdraw the authorisation without the permittee thereby acquiring any right to claim compensation or damages in that regard . He must , if required , restore the site to its original state ” .

Prior to that , on DATE , ORG had written to the prefect in the following terms :

“ ... Having regard to PERSON genuine lack of means , as a former seaman who has reached an advanced age and can not possibly pay the normal charge , and considering , furthermore , that it would be a drastic measure to order the demolition of the little house that he has built on land reclaimed from the sea and uses as a dwelling house , I have decided to impose the minimum charge thus reflecting the precariousness of the occupancy and preventing the rights of the ORG from becoming time - barred .

In the circumstances I consider ... that there is now no further obstacle to disposing of this case by issuing a concession order , but on PERSON death , his heirs should be served with notice either to purchase the usurped land or to pay the charge at the rate applicable for private occupancy of maritime public property . ”

“ Title and entry into possession : the purchasers shall hereby acquire title to the land and the little house of ORG from DATE ’s date . The property is sold free of tenants or occupants . ”

The relevant passages of the deed of sale of DATE read as follows :

“ Title – Entry into possession :

The purchasers hereby acquire title to the property conveyed to them under this deed , and shall enter into actual possession thereof from DATE ’s date ...

From the date of their entry into possession they shall pay all taxes and charges payable now or in the future on the house hereby sold together with the land . ...

... The present sale is concluded in consideration of the principal price of MONEY ... ”

Following this purchase , and in order to acquire legal access to the house , the applicant and his wife were granted rights of temporary occupancy of maritime public property that were regularly renewed in DATE ( year during which the applicant was permitted to extend the dyke and a public right of way was granted along the seaward edge of the dyke ) , DATE , DATE and DATE . The authorisation of temporary occupancy of DATE specified that the applicant sought “ the renewal of the prefectoral decision of CARDINAL DATE authorising the construction of a dyke with a dwelling house on it ... ” . The last agreement granting them the right to occupy public property expired on DATE . The decisions specified that “ the requested dyke will not in any way interfere with navigation rights , on condition that it is levelled off above the highest water mark , or with maritime coastal traffic provided that public access is guaranteed at all times ” and that “ in accordance with LAW [ see paragraph CARDINAL below ] , the authorities reserve the right to modify or withdraw the authorisation should they deem it necessary , on any ground whatsoever , without the permittee thereby acquiring any right to claim damages or compensation in that regard . The permittee must , if required , restore the site to its original state by demolishing the constructions built on the public property , including those existing on the date on which the decision was signed . Should he fail to comply with that obligation , the authorities shall do so of their own motion and at his expense ” .

By a letter of DATE , the applicant and his wife requested the prefect of GPE to renew authorisation of their occupancy .

The prefect of GPE replied on DATE informing the applicant that the entry into force of Law no . CARDINAL - CARDINAL of DATE on the development , protection and enhancement of coastal areas ( “ the LAW ” ) , and in particular section CARDINAL thereof , no longer allowed him to renew authorisation on the previous terms and conditions . LAW provided that decisions regarding the use of maritime public property had to take account of the vocation of the zones in question , which ruled out any private use including dwelling houses . However , in order to take account of the length of occupancy and the applicant ’s sentimental attachment to the house in question , he proposed to enter into an agreement with the applicant that would authorise limited and strictly personal use and prohibit him from transferring or selling the land and house and from carrying out any work on the property other than maintenance and would include an option for the ORG , on the expiry of the authorisation , to have the property restored to its original condition or to reuse the buildings .

By a letter dated DATE , the applicant and his wife rejected the prefect ’s offer and requested a concession to build a dyke that would be valid as a transfer of ownership under LAW of LAW ( see paragraph CARDINAL below ) .

On DATE the prefect of ORG gave a decision , based on section CARDINAL of LAW , in which he considered that there was no public interest justifying the concession requested . He did , however , renew his offer to grant the applicant and his wife a right of temporary occupancy subject to conditions .

On DATE the applicant and his wife applied to ORG for the prefect ’s decision of CARDINAL DATE to be set aside . In support of their application , they submitted that the refusal to grant them a concession to build a dyke was unlawful .

By a letter of DATE , the prefect of GPE served notice on the applicant and his wife to regularise their status as unauthorised occupants of public property . That notice was renewed on DATE .

On DATE ORG of the département of GPE drew up an official report recording the administrative offence of unlawful interference with the highway and noting the unlawful occupancy of the land by the applicant , contrary to the provisions of LAW of LAW ( see paragraph CARDINAL below ) .

On DATE the prefect of GPE lodged an application with ORG citing the applicant and his wife as defendants in respect of an offence of unlawful interference with the highway as they continued to unlawfully occupy public property . He sought an order against them to pay a fine and restore the foreshore to its original state prior to construction of the house and to restore the dyke on which it stood , within DATE .

On DATE ORG served notice on the applicant to pay the sums due for DATE for unauthorised occupancy of public property , namely , a total of MONEY ( ORG ) .

By CARDINAL separate judgments delivered on DATE , ORG ruled on the application lodged by the applicants on CARDINAL DATE ( case no . DATE ) and the application lodged by the prefect of GPE on DATE ( case no . CARDINAL ) .

The application for the prefect ’s decision rejecting their request for a permit to build a dyke to be set aside ( case no . CARDINAL ) was dismissed on the following grounds :

“ ... In support of their argument that the stretch of land on which the dwelling house stands belongs to the category of maritime private property the applicants have exhibited in the proceedings a decision authorising the temporary occupancy of maritime public property dating back to DATE . However , this decision merely takes note that the land in question has been drained and does not certify the lawfulness thereof . Accordingly , it does not call into question the classification of the land as public property .

In accordance with LAW of LAW , ‘ the ORG may concede , on conditions it shall determine ... the right to build a ORG . While section CARDINAL of the above - mentioned LAW DATE [ LAW ] has reduced the scope of application of that Article , it does nonetheless specify that ‘ land draining carried out prior to the present Act shall continue to be governed by the previous legislation’ . Accordingly , the only provisions applicable to the present case are LAW of the above - mentioned LAW and ORG of DATE , which provides that ... ‘ subject to any contrary provisions of deeds of concession , land artificially removed from the action of the tide shall be incorporated into the category of maritime public property’ . In rejecting the request on the basis of the principles and guidelines laid down in the inter - ministerial circular of CARDINAL DATE setting out the policy to be followed for the use of maritime public property , the prefect DATE when examining the applicant ’s particular situation involving an application for a concession – did not err as to the scope of the circular in question , which neither repeals nor amends the above - mentioned legislative provisions but is limited to applying them .

The above - mentioned circular , which instructs the authorities responsible for deciding whether or not to grant concessions to build dykes not to transfer title to the plots of land thus created and to accept only installations designed for collective use , to the exclusion of private dwellings , was issued in respect of an area in which the relevant authorities have discretionary power . In referring to the principles laid down in the circular , the prefect does not appear to have interpreted the legislative provisions inaccurately ; nor did he fail to consider the specificity of the applicant ’s proposal before concluding that there was no special factor justifying an exemption from the instructions analysed above . ”

The application lodged by the prefect of GPE ( case no . CARDINAL ) was granted . The court stated that “ the land on which PERSON and PERSON dwelling house stands is indeed public property ” . With regard to the offence of unlawful interference with the highway , the court found as follows :

“ ... The rules governing public property

... The purpose of prosecuting someone for the administrative offence of interference with the highway is to preserve the integrity of public property . As can be seen from the judgment delivered by the court DATE in case no . CARDINAL , the land on which PERSON and PERSON dwelling house was built is indeed public property .

The administrative courts base their determination of the substance of artificial public property on the judicial interpretation of any private deeds that may be produced whose examination raises a serious difficulty . In the present case the dyke and the house are not publicly owned property , given the exclusively private use made of them and the fact that they do not belong to a public authority , as confirmed by the deed of sale dated DATE . Accordingly , as it is not seriously disputed that the property in question has been appropriated for private use , it is not necessary to adjourn the application . ...

Whether there has been unlawful interference with the highway

While PERSON and PERSON have full title to the dwelling house occupied by them and claim , accordingly , that they are therefore not the unlawful occupants of public property , the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a concession to build a dyke or another type of concession . The investigation into the facts and , in particular , the absence of any documents evidencing that a concession was granted show that the dwelling house in question was illegally built on maritime public property . Accordingly , and despite the production by the owners of undisputed title deeds , the prefect is justified in requesting an order against Mr GPE to pay a fine and restore the foreshore to its original state prior to the construction of the house .

Penalty for the offence

... PERSON is hereby ordered to pay a fine of FRF CARDINAL .

State property proceedings

PERSON is hereby ordered to restore the property to the state it was in prior to the construction of the buildings within DATE of service of this judgment . On expiry of that time - limit Mr GPE shall pay a fine of FRF CARDINAL per day ’s delay in the event of failure to comply with the present judgment and the authorities shall be authorised to enforce it at the cost and risk of the offender ... ”

On DATE the applicant and his wife lodged an appeal against the judgment delivered in case no . CARDINAL . On DATE they appealed against the judgment delivered in case no . CARDINAL .

In support of their appeal against the judgment delivered in case no . DATE , the applicant and his wife submitted that the land in question was not public property belonging to the ORG . They maintained that the land was private property belonging to the ORG with the twofold effect that the usual rules governing acquisition by adverse possession under private law were applicable to their situation and that the administrative courts did not have jurisdiction to decide the dispute .

By a judgment of DATE , ORG decided to join the CARDINAL sets of proceedings on the ground that they were connected and to dismiss the applicant and his wife ’s appeals on the following grounds :

“ With regard to the application ... concerning the offence of unlawful interference with the highway :

Regarding the State property proceedings

Firstly , it is not disputed that the land on which the dyke on which the house occupied by PERSON and PERSON was built was entirely covered by water , independently of any exceptional meteorological circumstances , prior to the draining works undertaken in order to build the dyke . It has not been established , or even alleged by the applicants moreover , that the undrained portion of this land had ever been removed from the action of the tide . The investigation shows , moreover , that the dyke is the result of land draining carried out prior to the entry into force of the above - mentioned LAW DATE [ ORG ] ... and that , notwithstanding the various authorisations of temporary occupancy granted by the authorities , as this was not done in the manner prescribed for concessions for the construction of a dyke it has not had the effect of bringing this part of the land thus removed from the action of the tide outside the category of maritime public property . In accordance with the principles of inalienability and imprescriptibility of public property , the submissions by PERSON and PERSON to the effect that the house was built legally and its occupancy accepted by the authorities for a very long time and tolerated even after expiry of the last authorisation to occupy it do not alter the fact that the property falls within the category of maritime public property .

Secondly , as has been said , the last decision in favour of PERSON and PERSON authorising temporary occupancy of the maritime public property expired on DATE . In the absence , since that date , of a lawful title of occupancy , the prefect of GPE is justified in requesting an order against the occupants to restore the site DATE if they have not already done so – to its original state prior to construction of the house on maritime public property . In disputing that obligation , the applicants can not properly rely on the long period of occupancy of the LOC or on the fact that the authorities have tolerated the continuation of that occupancy since DATE and proposed draft occupancy agreements in order to regularise the situation , which , moreover , they have not taken up . ...

Fifthly , [ the obligation to restore the site to its original state ] does not constitute a measure prohibited by the requirement of LAW No . CARDINAL that no one shall be deprived of his possessions except in the public interest . ...

The application regarding the refusal to grant a concession to build a dyke

... Secondly , as section CARDINAL of the above - mentioned LAW DATE [ LAW ] provides that draining works carried out prior to enactment of that Act shall continue to be governed by the previous legislation , the provisions codified under LAW of LAW according to which ‘ the ORG may concede , on conditions it shall determine ... the right to build a dyke ... ’ are applicable .

The prefect of GPE based his decision not to grant PERSON and PERSON the requested concession to build a dyke on the guidelines set out in the circular of DATE issued by the Minister for ORG and the Minister for Regional Development on the use of public property other than commercial or fishing ports . He did not discern any general - interest ground in favour of granting the applicants’ request .

By instructing the authorities responsible for granting concessions to build a dyke not to allow any plot of land whatsoever falling into the category of public property to be reclassified as private property with a view to transferring full title thereto , the ministers signatory to the circular of DATE did not adopt any legal rules amending or supplementing the above - mentioned provisions of LAW of LAW but confined themselves to applying them . Accordingly , as stated above , the plot of land in question is ORG - owned public property . There is no evidence in the case that the prefect , before reaching his decision , either failed to examine the particular circumstances of PERSON and PERSON request or made a manifest error of assessment in concluding that there was no special feature or general - interest consideration in the case justifying an exemption from the above - mentioned rules . ”

On DATE the applicant lodged an appeal on points of law against the judgment of DATE . The ORG Commissioner pointed out , in the same submissions as those made in a similar case , that the value in DATE ’s terms of the purchase price of the house was MONEY ( ORG ) . He continued as follows :

“ ... However , the acquisition of rights in rem is not permitted under LAW DATE on ORG - owned ORG ... nor were these acquired before that PERSON was passed ... The appellants have not acquired any property rights over their houses ; nor have they acquired rights in rem over public property as a result of the successive sales . Given the precarious situation of the buildings , the market value could not be established without taking account of that essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up ... Lastly , and despite the fact that we are not especially enthusiastic about the outcome of this case , we have no alternative but to dismiss the ORG pleadings . ... They probably committed a tactical error in refusing the prefect ’s reiterated offer . Even if they were not exactly delighted by the prospect , it was at least preferable to a straightforward demolition order which will have to be judicially enforced at their expense . All hope is perhaps not lost of renewing contact with the authorities with a view to finding what might be a less drastic solution .

There may be a case for suing the ORG in tort for allowing occupants of public property to nurture for DATE the hope that they would not be ruthlessly compelled to demolish their property . It should be pointed out that the prospects of success of such an action are fairly slim , however , given the legitimate protection enjoyed by public property . In any event , it is clear that if the public authority were to be found liable , the offenders would bear a considerable portion of liability too . ”

By a judgment delivered on DATE , the ORG d’Etat dismissed the applicant ’s appeal . It held that he could not rely on any right in rem over the land in question or over the buildings that had been erected on it and that the obligation to restore the land to its original state without any prior compensation was therefore not a measure prohibited by LAW . CARDINAL . It also held that the applicant could not rely on the fact that the authorities had tolerated the occupancy of the property in support of his submission that he should be allowed to restore the site to the state it had been in at the time of acquisition of the house .

Following a fire in DATE the applicant applied for a building permit for identical refurbishment of the house . By a decision of CARDINAL DATE , he was issued with a building permit following a favourable opinion given by an architect from the NORP des bâtiments de GPE under LAW . The permit was subsequently revoked , however , at the request of the prefect lodged with the mayor of GPE , on the ground that it was illegal because it had been issued in contravention of the rules of inalienability and imprescriptibility of public property .

NORP In DATE and DATE ORG sent the applicant a reminder to pay the charges for DATE and DATE in the sum of ORG MONEY and ORG CARDINAL respectively , plus property tax .

The applicant produced a valuation of his house drawn up by an estate agent ’s office in DATE which states as follows :

“ ... a dwelling house ... situated on a plot of land measuring QUANTITY m. ... Having regard to the geographical situation of the property , the condition of the building , the surface area , its location on maritime public property and the local property market , and subject to the ORG ability to produce a concession agreement in respect of maritime public property , this property is worth between ORG CARDINAL . ”

The idea that the foreshore is “ common property ” , that is , can not be appropriated for private use and is managed by the public authorities , dates back to ORG times ( PERSON , Book II , Title I , PERSON rerum divisione ) , when even then a permit was necessary in order to build on the seashore . PERSON ’s Ordinance of the NORP of DATE codified the principle and up until recently was still the legal basis for the ORG ’s management of maritime public property . In addition to defining what constituted the “ seashore and foreshore ” , it laid down the applicable rules :

“ No one shall build on the foreshore , set stakes in the ground or erect any construction that may interfere with navigation , on pain of demolition of the constructions , confiscation of the materials and discretionary fines . ”

At the time of the Revolution , the idea developed that maritime public property was governed by the government in the interest of the nation , and not merely as part of the heritage that used to belong to the ORG and now belongs to the ORG . The management of maritime public property is still largely guided by this principle DATE . Over and above the idea of ORG ownership of such property , the conservation and management of it are more a matter of implementation of a policy regarding its use than the exercise of the owner ’s “ civil ” rights . The prefect has a major role in the protection of maritime public property . He is the authority who , generally , governs the use of the property at local level , decides whether or not to allow private occupancy and protects the integrity of the property by prosecuting offenders ( source : www.mer.gouv.fr , consulted on DATE ) .

ORG ’s Ordinance of the NORP was definitively repealed in DATE . Since DATE LAW owned by ORG ( Code general de la propriété des personnes publiques – “ the ORG ” ) has replaced LAW ( dating from DATE ) . It restructures the law governing ORG - owned land and public bodies and combines the rules governing maritime public property into a whole , including provisions relating to the environment in particular .

Maritime public property , determined on the basis of natural phenomena , lies between the highest point of the shore , that is , up to the high - tide mark under normal meteorological conditions ( CE Ass , PERSON , DATE ) and the boundary of the territorial waters , seaward . Under Article L. CARDINAL - CARDINAL of the ORG , “ State natural maritime public property ” shall comprise :

“ CARDINAL . The seabed and marine substrata between the external boundary of the territorial waters and , on land , the foreshore .

The foreshore comprises the whole area covered ( and uncovered ) by the sea , up to the high - tide mark under normal meteorological conditions ;

The beds and substrata of salt pans communicating directly , naturally and permanently with the sea ;

Land naturally reclaimed from the sea :

( a ) which was part of the ORG ’s private property at DATE , subject to third - party rights ;

( b ) which has been constituted since DATE .

Land reserved for public - interest maritime , seaside or tourist needs which has been purchased by the ORG .

Land artificially removed from the action of the tide shall remain in the category of natural maritime public property unless otherwise stipulated in legally concluded and lawfully executed deeds of concession transferring ownership . ”

The principle of inalienability of public land , which was established in the case - law and then incorporated into the Code of State Property ( Article L. CARDINAL ) and the ORG ( Article PERSON ) , is inextricably linked to the notion of public land . The basis of this principle is the designation of land for public use . As long as it remains thus designated , and no express decision has been taken reclassifying particular public land as private property , no transfer of land can be authorised . It is a means of preventing public land from being acquired by prescription or adverse possession under private law , hence the principle of imprescriptibility that is very often associated with the principle of inalienability . Accordingly , in its PERSON judgment , on the subject of plots of land situated close to the seashore in LOC , the ORG d’Etat found :

“ ... while the public authorities have authorised various building works on this land and on several occasions waived their right to apply the rules governing public land ... , neither the founders of the société du domaine des prés salés nor the company itself have been able to acquire any property right over the land , which , being part of public land , was inalienable and imprescriptible ... ”

ORG has stated that inalienability is limited to precluding the transfer of public property that has not first been reclassified as private property ( ORG , no . PERCENT of DATE , ORG ) . It has not , however , recognised that the principle of inalienability has any constitutional status ( ORG , DATE . no . CARDINAL - CARDINAL of DATE , Rights in rem over public property ) . The ORG d’Etat has recently reiterated that “ where property belonging to a public authority has been incorporated into the category of public land by virtue of a decision classifying it thus , it shall remain public land unless a decision is given expressly reclassifying it as private property ” . Accordingly , it has held that the question whether or not short - stay factories fell into the category of public property was not affected by the fact “ that these short - stay factories were intended to be rented or assigned to the occupants or that the occupancy leases granted were private - law contracts ” ( ORG , PERSON , DATE ) .

The effect of the principle of inalienability is that any transfer of public land that has not been “ reclassified ” is null and void , so third - party purchasers have a duty to return the land even if they have purchased it in good faith . Moreover , the fact that public land is inalienable means – in theory – that no rights in rem can be established over it . However , the legislature has departed from this principle by passing CARDINAL Acts , CARDINAL of CARDINAL DATE which creates long administrative leases , and the other of CARDINAL DATE on the constitution of rights in rem over public land , thus making it possible to grant private rights in rem to occupants of maritime public property . LAW of DATE concerns only public land belonging to local and regional authorities or groups thereof . LAW DATE relates to artificial maritime property and immovable constructions and installations built for the purposes of an authorised activity ( Article L. CARDINAL - CARDINAL of the Code of ORG and Article L. CARDINAL - CARDINAL of the ORG ) . In its above - mentioned decision of DATE , ORG held that granting rights in rem in this way was compatible with the LAW as public services were maintained and public property protected under LAW of DATE . However , it declared the provision allowing the renewal of authorisation beyond DATE unconstitutional on the ground that it could potentially render ineffective the public authority ’s right to the automatic return , free of charge , of any constructions and therefore undermine the “ protection due to public property ” .

The last consequence of the principle of inalienability is that property belonging to public authorities can not be seized ( Article L. CARDINAL - CARDINAL of the ORG ) . This consequence has been attenuated by a decision of the ORG d’Etat in a case which subsequently came before ORG and NORP fermière ORG v. GPE , no . CARDINAL/CARDINAL , DATE ) .

Apart from public easements intended to protect public property from the encroachment of private properties , such as a QUANTITY wide right of way along the coast over properties adjoining maritime public property , created by an Act of DATE reforming town and country planning , the land conservation policy guarantees the protection of the physical integrity of maritime public property and compliance with its designated use . Offenders are prosecuted for unlawful interference with the highway on grounds of infringement of the land conservation policy . An interference of this kind is liable to a criminal fine imposed by the administrative courts and the offender is required to restore the site to its original state . The relevant provisions on unlawful interference with maritime public property no longer refer essentially to navigation but take account of the protection of coastal areas for their own sake ( Articles L. DATE and PERSON of the ORG ) .

According to the ORG d’Etat , conservation agencies have a duty to prosecute offenders ( CE , Ministre de l’équipement v. Association “ des amis des chemins de ronde ” , DATE ) . Regarding a plot of land incorporated into maritime public property at ORG beach ( southern Corsica ) , the PERSON d’Etat decided the following :

“ ... the fact that ORG produced title deeds to the property in question and had been authorised to build on the land under the regional planning legislation , as distinct from the legislation governing maritime public property , does not mean that the offence of unlawful interference with the highway has not been made out and , in any event , can not preclude prosecution by the prefect ... ” ( CE , no . CARDINAL , DATE ) .

With regard to repairing damage caused to public property , the actual attitude adopted by the authorities prior to bringing proceedings for unlawful interference with the highway has been deemed to give rise to rights in favour of the offender , including the right not to assume personal responsibility for restoring the site to its original state ( CE , GPE , DATE ) .

The use of maritime public property may be collective or private . Collective use which allows all citizens to benefit from public property ( navigation on watercourses , beaches ) is freely exercisable , equally available to all and free of charge . However , the principle that use is free of charge has not been expressly incorporated into the ORG because it is subject to numerous exceptions .

Private occupancy must be compatible or in conformity with the designated use of the public property . Unlike collective use , it is subject to authorisation , issued personally , and a charge and is of a precarious nature .

Article L. CARDINAL of the Code of State Property ( Article L. CARDINAL - CARDINAL of the ORG ) provided :

“ Subject to authorisation being issued by the competent authority , no one may occupy any national public property or make use thereof over and above the right of use vested in everyone .

ORG shall record any infringement of the provisions of the preceding paragraph with a view to instituting proceedings against illegal occupants , recovering compensation for charges in respect of which ORG has been defrauded , without prejudice to the institution of proceedings for unlawful interference with the highway . ” [ Article A CARDINAL specified that authorisation was revocable without compensation . ]

According to the ORG d’Etat :

“ ... while the authorities may , as part of their management powers , authorise DATE provisionally and on the conditions provided for by the rules in force – private occupancy of the said land , that authorisation can not legally be granted unless , having regard to the requirements of the general interest , it is compatible with the designated use of the land that the public are normally entitled to exercise , and with the obligation incumbent on the authorities to conserve public land . ” ( CE , Commune de Saint - Brévin - les - Pins , CARDINAL DATE )

The precariousness of these authorisations derives from the principle of inalienability , according to which the protection – and accordingly the disposal – of public land is vested in the authorities . According to the caselaw :

“ ... any authorisation to occupy public land is precarious and revocable . Consequently , the fact DATE assuming it is made out DATE that , prior to adoption of the decision being challenged , PERSON had been granted authorisation to occupy the part of common public property ... does not affect the lawfulness of the mayor ’s decision requesting him to demolish the buildings he had erected and restore the public land to its original state ... ” ( CE , PERSON , DATE )

It also states very clearly that those to whom authorisation has been granted have not thereby “ acquired rights ” to renewal of the authorisation ( CE , Helie , DATE ) .

The conditions of occupation of public property are determined either in unilateral concessions granted by the authorities ( of the type referred to above in LAW of LAW ) or in contracts signed with the occupant . The latter are called concessions to occupy public land , which DATE on maritime public property – may be a beach concession or a concession to build a dyke . By means of this concession , the ORG authorises the concessionaire to carry out works on the foreshore by which land is removed from the action of the tide . In respect of natural maritime public property an arrangement was established in DATE , traditionally called a concession to build a dyke and by which ownership was transferred ( former LAW of LAW ) : the concessionaire was authorised to drain land , which , once removed from the action of the tide , no longer fell within the definition of natural maritime public property and could therefore be reclassified as private property and transferred by the ORG . That arrangement , which was originally used to build agricultural polders , has more recently been used for property developments in the form of marinas , reclaimed from the sea . Following a reaction to what was perceived as a privatisation of the shore , a circular was issued in DATE prohibiting such arrangements – a prohibition later confirmed by LAW , which imposes a broader prohibition on any interference with the natural state of the shore . It is now no longer possible to build marinas or polders by means of concessions to build dykes by which ownership is transferred . This arrangement can now apply only to past draining works and is the sole means of legalising these ( source : www.mer.gouv.fr , consulted on DATE ) .

Up until DATE maritime public property was protected by the rules governing the highways . LAW introduced new rules for the protection of natural public land ( source : www.mer.gouv.fr ) .

As early as DATE enthusiasm for seaside holidays brought about an increase in the number of tourists and thus in the number of buildings on the seashore . Awareness of the economic importance of the seashore and of the degree to which it is coveted made it necessary to introduce a rule of overriding legal force that would arbitrate between the many uses of coastal areas . It is in this spirit that LAW of DATE ( consolidated on DATE ) was unanimously passed by ORG . LAW provides that coastal areas are “ geographical entities which call for a specific policy of development , protection and enhancement ” . The general principles of that LAW consist in preserving rare and fragile areas , managing spatial planning and tourist development economically and , lastly , making the shore – like the beach DATE more widely accessible to the public and giving priority in coastal areas to marine - related activities .

It is in the planning sphere that the principles established are the best known and have given rise to the most litigation . Planning permission for further development must be granted with regard to continuation of existing constructions or new hamlets . It is forbidden to build roads on the shore and through roads can not be built closer than QUANTITY from the shore . In order to preserve natural sites the LAW imposes a “ no building ” rule within a CARDINAL-metre band DATE outside urban centres – from the shore , and restricts development in areas near the shore . Lastly , sites of outstanding interest or characteristic of the shore must be preserved and only small - scale development can be allowed .

The Act has laid down rules for managing maritime public property which include a mandatory public inquiry prior to any substantive change of use , clarifying the procedures for delimiting the foreshore , prohibiting DATE other than in exceptional circumstances – interference with the natural state of the seashore and establishing specific rules for collective mooring . Lastly , it has established the principles of unobstructed and free public use of the beaches and facilitated public access to the sea ( see LAW and LAW

“ Pedestrians shall have free access to beaches ... Beaches are fundamentally reserved for the unobstructed and free use of the public . ”

Section CARDINAL of the LAW , now Article L. CARDINAL - CARDINAL of the ORG , has given rise to a reform of the rules governing the occupation of maritime public property . It provides :

“ Decisions regarding the use of maritime public property shall take account of the vocation of the zones in question and those of the neighbouring terrestrial areas , as well as of the requirements of conservation of coastal sites and landscapes and biological resources . Accordingly , they shall be coordinated with , inter alia , decisions concerning neighbouring public land .

Subject to specific provisions regarding national defence and the requirements of maritime safety , any substantive change of use of zones of maritime public property shall first be the subject of a public inquiry ... ”

Section CARDINAL of the LAW , now Article L. CARDINAL - CARDINAL of the ORG , lays down the principle that there shall be no interference with the natural state of the shore :

“ Subject to sea defence operations being carried out and the construction of structures and installations required for maritime safety , national defence , sea fishing , salt works and marine cultures , the natural state of the foreshore , outside port and industrial port areas , may not be damaged , especially by dyke construction , drainage , rock filling or embankment forming , except for structures or installations related to providing a public service or carrying out construction work for which the seaside location is essential for topographical or technical reasons that have been declared of public interest .

However , land draining carried out prior to the present Act shall continue to be governed by the previous legislation . ”

The following is an extract from the section entitled “ Matching facts with the theory ” of a report on the conditions of application of LAW , drawn up by ORG and sent to the Minister for Infrastructure , ORG in DATE :

“ ... there is an acute sense of unfairness when an application for planning permission is turned down in respect of a site where the presence of buildings would appear to suggest that at other times the authorities have been less particular . ...

The right to enjoy ‘ for life’ but not to transfer a dwelling house built on maritime public property , as recognised in an agreement signed with the prefect , the right granted to a married couple until their death to camp or park their caravan in a zone in which camping was now illegal , together with an agreement expressly stipulating that the right could not be inherited , illustrate the creativity shown by the authorities in this regard in GPE and the GPE . ...

All sorts of liberties are increasingly being taken in various degrees of good faith . ... Should we simply ignore the development of a black market in permits to occupy public property ... Should we not be attempting to establish liability on the part of public officials who in the course of their administrative duties have knowingly contributed to creating or exacerbating an illegal situation ? ... ”

A report entitled “ Assessment of LAW and measures in favour of coastal areas ” , prepared by the government for ORG ( DATE ) , contains a part devoted to opening coastal areas to pedestrians which is worded as follows :

“ The purpose of LAW is to maintain or develop tourism in coastal areas . Sections CARDINAL to CARDINAL of the LAW , in particular , lay down the conditions in which the public may visit natural sites , the seashore and the corresponding facilities . The provision of coastal paths goes some way towards giving effect to these legislative provisions . ... The public can continue to walk along the coast by virtue of an easement over private properties and a right of way over public land that may belong to the ORG ( maritime public property ) , ORG or local and regional authorities ...

Making a pathway often requires an on - site study of the terrain in order to determine whether the coastal area in question can be opened to pedestrians without harming the fauna , the flora or the stability of the soil . If the land is considered to be accessible without any risk to the environment , regard will have to be had to where the path is routed , particularly across private property , it being observed that the statutory route ( QUANTITY in width running along the boundary of maritime public property ) is not always the most appropriate solution . If the statutory route across private properties has been modified , a public inquiry must be carried out . ... ”

The ORG examined the situation in CARDINAL coastal member GPE . CARDINAL GPE , GPE , GPE and GPE ) do not recognise the existence of maritime public property exclusive of any private ownership rights . In the other GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE ) , maritime public property belongs either to the ORG or to other public bodies and is inalienable on that basis . In all these GPE maritime public property can nevertheless be designated for private use on the basis of fixed - term concessions . And in all these GPE illegal use exposes the offender to administrative or even criminal penalties . In particular , the illegal construction of immovable property can result in the offender being ordered to demolish the building concerned at his or her own expense and without compensation . This type of measure also exists in GPE , where the private right of ownership of land on the seashore is recognised by law but the land is subject to relatively strict easements which prohibit the construction of new buildings and guarantee public access to the sea .

In GPE , as in GPE , the owners of buildings legally built and acquired before the entry into force of LAW ( DATE ) in the case of the former and LAW in the case of the latter ( DATE ) , and designed for use as a dwelling , could obtain a concession of these buildings , without any obligation to pay a charge on the sole condition that they apply for the concession within DATE of the entry into force of the Act . In GPE , properties built before the LAW came into force without a permit or concession as required by the previous legislation will be demolished if they can not be legalised on public - interest grounds . Any building that was authorised before the LAW came into force but is now illegal will be demolished on the expiry of the concession if it is located on land falling within the category of maritime public property . In GPE , according to the case - law of ORG ( judgment of DATE ) , which refers to the judgment in PERSON and PERSON v. GPE ( no . CARDINAL , CARDINAL DATE ) , if the annulment of a property deed in respect of property located inside the delineation of the foreshore is compatible with the domestic legislation , the interested party can apply to the courts for compensation for his or her pecuniary loss .

The following relevant texts can be cited : Recommendation No . R ( CARDINAL ) CARDINAL of ORG on a policy for the development of sustainable environment - friendly tourism in coastal areas adopted on DATE , and the appendix thereto ; the decision of ORG taken at its PERSON meeting ( DATE ) at which the Ministers’ Deputies took note of LAW on sustainable management of coastal zones ( see LAW on public maritime domain and LAW on pedestrian access to beaches and coasts ) and LAW , and agreed to transmit them to their respective governments .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

The applicant is the mother of CARDINAL children , NORP born in DATE , S. born in DATE and NORP born in DATE . In DATE , the applicant separated from the children ’s father , PERSON , and she was eventually granted sole custody of the children , while PERSON was granted contact rights . The applicant married PERSON in DATE .

The applicant and her children have been known to the social services since DATE when a first investigation into their home environment was carried out . During DATE and DATE , the personnel at the children DATE care centre felt that the applicant was distracted and stressed and the children were hungry and dirty when they arrived at day care in the TIME and were behaving in a wild and hyperactive manner . In view of this , they reported the situation to the social services in PERSON . In DATE the applicant herself contacted the ORG ( Barn- och ungdomspsykiatrin ; hereafter “ ORG ” ) for help , as she considered the situation to be chaotic and she needed help for her son , PERSON , who she claimed destroyed everything at home . ORG reported the family ’s situation to the social services .

On DATE the applicant contacted ORG in a state of despair and , in response , a social emergency unit ( social beredskap ) went to the applicant ’s home , accompanied by police and a chief physician from the adult psychiatric clinic . The authorities found the interior of the home completely destitute ; there was hardly any furniture and there was no electricity or running water . The applicant was in a confused state and blamed the mess in the house on S. The social emergency unit decided immediately to place the children , together with the applicant , in a temporary family home ( jourfamiljehem ) . On DATE , the applicant was committed to compulsory psychiatric care in accordance with LAW ( Lagen om psykiatrisk tvångsvård , DATE ) . The applicant claimed that she was not ill but agreed to the placement of the children in the temporary family home . DATE , she was released from psychiatric care and returned to her home .

During DATE the applicant had frequent contact with the social services . However , she felt misunderstood and harassed by the authorities and wanted to bring her CARDINAL daughters , T. and NORP , home . As the social services insisted that the situation was not stable enough for the girls to return to the applicant , she withdrew her consent to their voluntary placement . Hence , ORG ( socialnämnden ) in PERSON decided to take ORG and NORP into public care immediately on a provisional basis , pursuant to section CARDINAL of the Act with Special Provisions on ORG ( ORG med särskilda bestämmelser om vård av unga , TIME ; hereafter “ the DATE LAW ) . The council considered that the measure was necessary in order to protect the children . It also noted that there had been chaos every time the applicant had met with the children during DATE or when she had appeared , often unannounced , at DATE care centre , leaving them upset and sad .

The applicant , who was represented by legal counsel , opposed the measure but , on DATE , ORG ( länsrätten ) of ORG confirmed the decision of ORG .

On DATE ORG applied to ORG for a permanent care order in respect of all CARDINAL children , in accordance with section QUANTITY of LAW . The council maintained that the applicant had shown a serious lack of ability to care for her children . It submitted a comprehensive investigation report into the family ’s situation in support of its request according to which all CARDINAL children had worn nappies when they arrived at the temporary family home , although ORG only at TIME , and they had been dirty and had an endless appetite . Moreover , T. had no limits towards adults and wanted to control everything and everyone around her . S. had nightmares and had been afraid of sudden movements . He acted in a very stressed and anxious manner when his mother was present . NORP had been late in her speech and motor development . The applicant had not been able to set limits for her children and the situation when they met had always become out of control .

The applicant disputed the measure and claimed that she was capable of caring for her children , who suffered from being separated from her .

By judgment of DATE , after having held an oral hearing , ORG granted a permanent care order in respect of each of the CARDINAL children . It found that , on the basis of all the material in the case , it had been shown that the applicant lacked the ability to care for her children , which had already somewhat impaired their health and development , and that there was a serious risk of further damage unless they were given proper care . Since the applicant did not agree to voluntary care , it was necessary to take the children into public care on a permanent basis .

The applicant appealed against the judgment to ORG ( kammarrätten ) in GPE . She had realised that it was not PERSON , but her husband PERSON , who had been responsible for all the destruction in their home . J. had admitted this and they had divorced . However , she did not consider that the children had suffered from this error , although she felt sorry for PERSON and would have liked to talk to him about it .

ORG contested the appeal . In its view , the children ’s behaviour showed that their development had already been harmed and , moreover , the applicant had no insight into her problems and had difficulties in interacting with her children .

On DATE ORG upheld the lower court ’s judgment in full . In its opinion it was evident that the children had not received proper care at home . Moreover , the applicant had shown signs of mental ill - health and had behaved in an unbalanced manner . Thus there had been a real risk of damage to the children ’s health and development . Furthermore , although the court acknowledged that the situation had improved in that the house had been renovated and the applicant had divorced J. , it found that the situation was far from being stable , having regard to the serious flaws which had existed , the uncertainty as to whether they still existed and the children ’s need for care .

The applicant appealed to ORG ( Regeringsrätten ) which , on DATE , refused leave to appeal .

Following the granting of the public care order in DATE , the applicant had contact rights to visit T. for TIME , once DATE , and spoke with her on the telephone once DATE . She met PERSON once DATE in the presence of the social services and she had contact rights to visit NORP for TIME DATE . In DATE the applicant moved to live with her sister in GPE , located QUANTITY from PERSON , and as a result she travelled to PERSON to see her children roughly once a month .

NORP In DATE , the children were placed in CARDINAL different family homes , all within QUANTITY of PERSON , as one family was not able to provide the care and support that each child needed . However , it was arranged for the children to meet each other approximately once a month to ensure continued good contact between them .

NORP In DATE the applicant , through her legal counsel , requested ORG to allow her more time with her children as she felt that the children were being deprived of contact with her .

On DATE ORG decided to restrict the applicant ’s contact rights to all CARDINAL children . It first noted that the children ’s father , PERSON , had also requested contact rights to the children and that his contact rights had to be taken into account when deciding on the frequency of the applicant ’s contact rights , balanced against the best interests of the children . Thus , according to the decision , each parent should meet with the children once DATE in a neutral environment where the family home parents and the social worker responsible for the file should be present . This meant that the applicant would meet her children DATE .

The decision was based on an investigation carried out by ORG , in consultation with ORG , into the children ’s situation . It was finalised on DATE and concluded , inter alia , the following . All CARDINAL children had suffered severe harm to their health and development because of the deficiencies in the applicant ’s ability to care for them . They were vulnerable and sensitive to change . However , since the permanent care order , T. had slowly become more calm and balanced and had started to learn how to play . She and the applicant had been alone during their meetings and had done various things such as going to the playground , the swimming pool or a restaurant . T. had been very tired after the meetings and she had slept badly and wet her bed . After telephone conversations with the applicant , ORG had also been anxious and sad . As regards PERSON , he had become calmer and more relaxed since placed in the family home . He still had difficulties sleeping and suffered from stomach pains and vomiting before and after contact with the applicant , despite the meetings having been very structured and held in the presence of the family home father . S. showed clear signs of fear of his mother and he had expressed a fear that she would come and fetch him . Turning to NORP , it was observed that she had met with the applicant and that they had usually been alone , playing together . After contact with the applicant , NORP used to be worried about things the applicant had told her and she regressed somewhat in her development for DATE after each meeting , wetting her bed and having difficulty sleeping . ORG concluded in its investigation report that the children had a right to contact with their mother but that their best interests required that the contact be limited in order to ensure their secure and positive development .

NORP The applicant appealed to ORG and requested that she be granted contact rights to her children much more often than only twice a year . She could see no reason for such restricted contact and found it to be contrary to the best interests of the children as they would forget their mother . They had lived with her until DATE and they had had a close and warm relationship . She agreed that the children should also see and get to know their father but considered that this should not limit her contact with them . Moreover , she referred to a custody report , dated DATE , which had been carried out in connection with the custody proceedings following the divorce from B. In the summary of the report it was stated , inter alia , that nothing had appeared to call into question the applicant ’s ability as a parent to care for her CARDINAL children and that personnel at the children DATE care centre had stated that the children seemed to receive the care they needed from the applicant .

ORG contested the appeal . It submitted that the children were currently in the process of developing and learning things that they had not had the opportunity to learn before and it was important that this process should not be interrupted , which was the effect of their contact with the applicant . Consultation had taken place with ORG , which agreed with ORG that contact restrictions were necessary in order to ensure a positive development for the children . Moreover , it noted that the last meeting between the applicant and her children , on DATE , had passed without incident , partly because CARDINAL adults had been present to ensure the children ’s well - being .

On DATE ORG rejected the appeal . It noted that a supplementary custody report , dated DATE , stated that it was clear that there were major flaws in the applicant ’s ability to care for her children . Thus , having regard to the fact that the children had been feeling ill and anxious in connection with and after their contacts with the applicant , and that they needed time to develop in peace in their family homes , ORG had been justified in restricting the applicant ’s contact rights to her children to twice DATE .

The applicant lodged an appeal with ORG , maintaining her claims and adding that she wished to see her children at least once DATE in order to ensure that they would not forget her . She felt that the family home parents had a negative attitude towards her and that this influenced the children .

On DATE , after having held an oral hearing , ORG upheld the lower court ’s judgment in full . It noted that ORG had been consulted by ORG before its decision .

Upon further appeal by the applicant , ORG refused leave to appeal on DATE .

DATE , ORG reconsidered the contact restrictions and decided to maintain the restrictions in place . It would appear that the applicant did not appeal against these until the council ’s decision of DATE which she appealed against to ORG , requesting that her contact rights to her children be increased to CARDINAL visit per month to begin with and , after DATE , to spend DATE a month with them alone . She stated , inter alia , that she had moved to GPE , found a job and was in a steady relationship with a new man , and thus , felt very well .

In its decision , ORG had observed that despite the applicant ’s visits having been planned and very structured , the children had still had negative reactions before and after each meeting in the form of anxiety , stomach aches , bedwetting , becoming insecure and regressing in their development . It further noted that during the visit in DATE , the applicant ’s mother had also been present which had been a positive addition . She had expressed a wish to see her grandchildren once DATE , to which the council agreed . It also noted that the applicant had sent postcards and letters to the children which they appreciated . As concerned the visits , the council observed that they were always very well planned and structured with the support of the family homes and that the applicant and the children played together , ate and talked . The family homes also showed photos and films from the children ’s meetings and their activities .

On DATE the court , after having held an oral hearing , decided to increase the applicant ’s contact with her children to CARDINAL times per year , for TIME each time . It noted that the limited contact had been in place for DATE and had contributed to the children developing positively during this time . Although it agreed with ORG that continued limitations on the applicant ’s contact with her children were necessary due to the children ’s needs , it noted that the applicant had not interfered in an inappropriate manner in the care of her children . Moreover , the last CARDINAL times they had met had generally gone well . Therefore , the court found that with the support of ORG and the family homes during the meetings , these could be increased to CARDINAL times per year for the applicant . In its view , this would provide the children with a good contact with their mother while not jeopardising their continued development .

The applicant appealed to ORG , maintaining that she wanted contact rights with her children during DATE , without the presence of others , in order to ensure that she and the children would establish a good contact .

ORG contested the appeal and maintained the reasons set forth in its decision .

ORG requested ORG to obtain the children ’s point of view on increased contact with their mother . Consequently , the council met with the children individually but in the presence of their family home parents where they spoke about various things , including how they felt about seeing their mother more often . T. said that she did not want to meet her mother more than twice a year and that she did not want to be alone with her or stay with her . According to ORG , the meetings were very tiresome , demanding , she had a headache and could not concentrate in school before and after the meetings . She started crying and had a stomach ache during the conversation for which reason they had to cut it short . Following the conversation , she wet her bed at night , cried a lot and said that she was afraid . As for PERSON , he did not want to talk about his mother . He reacted in a negative , frightened manner and almost started crying . He later said that he only wanted to see her once a year and that he did not want to be alone with her . It was noted that he was very anxious and afraid to meet his mother and had strong physical reactions both before and after the meetings , including stuttering , becoming aggressive and being afraid of physical contact . Turning to NORP she said that she became tired when meeting her mother and siblings but that it was nice to dress up and eat good food . It was noted that NORP was the most positive about the meetings with the applicant but that she did not want to meet with her alone . Moreover , the negative reactions that she had had during earlier meetings had improved somewhat .

In DATE the applicant voluntarily underwent a neuropsychological examination during DATE at ORG , upon request by ORG . The council wanted to know if the applicant suffered from a disorder or mental illness and , if so , what support she would need . The examination concluded that the applicant fulfilled the criteria for Attention Deficit Hyperactivity Disorder ( ADHD ) that was mainly inattentive in nature . It recommended supplementary examinations and made a number of proposals for supportive measures , including establishing fixed structures and routines in her daily life . It was also stressed that this specific impairment of her capabilities could hardly be sufficient to “ disqualify her as a parent ” .

On DATE ORG upheld the lower court ’s judgment in full . It concluded that it would not be in the best interest of the children to increase the applicant ’s contact rights further than decided by the lower court , in particular due to the negative reactions of GPE , during and after the meetings .

According to section CARDINAL § CARDINAL and section CARDINAL of the CARDINAL Act , compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person DATE due to ill - treatment , exploitation , lack of care or any other condition in the home and if the necessary care can not be provided with the consent of the child ’s guardian . The decision to place a child in public care is made by ORG following an application from ORG ( section CARDINAL ) .

Chapter CARDINAL , section CARDINAL of GPE ( Socialtjänstlagen , CARDINAL:CARDINAL ; hereafter the “ LAW ” ) provides that particular attention must be given to the best interests of the child when measures within the social services affect him or her . Likewise , LAW of the DATE LAW states that the best interests of the young person shall be decisive when decisions are made under LAW . Moreover , LAW of LAW prescribes that the young person ’s point of view shall , as far as possible , be clarified and that the young person ’s will shall be taken into account , with due consideration to his or her age and maturity .

According to LAW of LAW , ORG decides on the details of the care , in particular , how the care is to be arranged and where the young person is to live . Moreover , under section DATE , the council shall ensure that the young person ’s need for contact with his or her parents or other guardians is met to the utmost possible extent . If necessary , the council may decide how this contact is to be arranged . In the preparatory works to LAW PERSON , p. CARDINAL ) , it is noted that the provisions on contact restrictions are to be applied restrictively . ORG must have strong reasons to decide on contact restrictions between a young person and his or her parents . However , it can happen that the parents intervene in the care in an inappropriate manner . Their personal situation , for instance serious abuse or a grave mental illness , may be such that they should not see their child for a limited period of time .

According to LAW , section CARDINAL of the CARDINAL Act , care outside a young person ’s home shall be provided either in a family home or in a home for care and residence . Moreover , the care should be designed to promote the affinity between the young person and his or her relatives and others closely connected to him or her , as well as contact with his or her home surroundings .

Contact restrictions shall be reviewed DATE by the ORG pursuant to section CARDINAL of the CARDINAL Act . Appeal against the council ’s decision in this respect lies to the administrative courts ( section CARDINAL ) .