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

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently in GPE .

The applicant arrived in GPE on DATE and applied for asylum and a residence permit . Before ORG ( Migrationsverket ) he stated that he was of NORP ethnicity from GPE Rural . During the war in DATE his parents had been killed and he and his CARDINAL younger siblings had remained in their home town . Since DATE they had been threatened by NORP to leave their property as the NORP considered that the land belonged to them . On DATE a group of former NORP rebels , who now belonged to the army and police , had come to their home and threatened to burn it . They had separated the applicant from his younger siblings and they had taken him to a graveyard where they had beaten him until he lost consciousness . He had awoken later at a medical centre run by NORP sans GPE . CARDINAL of the doctors had helped to arrange travel documents and a passport for him and this doctor had then travelled with him to GPE where he had left him . He did not know what had happened to his siblings . The applicant further claimed that he had not reported the incident to the police as both his attackers and the police were of NORP ethnicity and thus would protect each other . Lastly , he stated that he suffered from hepatitis B and was in need of treatment .

On DATE ORG rejected the request . It first stated that the general situation in GPE was not so serious that the applicant could be granted a residence permit on this sole ground . Turning to his individual claims , ORG noted that the applicant had not reported the incident to the authorities although it was a criminal act and not condoned by the ORG . Moreover , it observed that PERCENT of the cases before the PERSON courts concerned disputes over land , making them a priority issue , which was also reflected in the fact that the authorities cooperated with non - governmental organisations ( NGO ) to solve property conflicts . As the applicant had failed to report the incident to the police ( or to the alleged involved police PERSON superiors ) , the judicial system or NGOs , he had not exhausted domestic remedies available to him . In this respect , the ORG considered that there was no reason to believe that he would not have received help and support from the authorities or NGOs . The fact that he was NORP did not change its opinion on this point . Thus , the ORG found that the applicant had not shown that he would be at risk if returned and that he was not in need of protection in GPE . As concerned his illness , the ORG noted that he took no medication for his hepatitis B and that health care was available in GPE . Hence , he could not be granted leave to remain in GPE on this ground either .

The applicant appealed to ORG ( Migrationsdomstolen ) , maintaining his claims and adding that he was now convinced that his younger siblings had been killed so they could not claim their right to the property . The same fate would await him , if he returned . He also stressed that the judicial system in GPE was corrupt and that , since he had no financial means , he would never win legal proceedings or get help .

On DATE ORG rejected the appeal . It first considered that , although parts of the applicant ’s story , such as his travel to GPE , lacked credibility , in general his story about the incident in DATE appeared credible . However , like ORG , the court found that the applicant had failed to exhaust the domestic remedies available to him in GPE and that thereby he had not shown that he was in need of protection in GPE . It also considered that his illness was not so serious that he could be granted leave to remain in GPE .

On DATE ORG ( Migrationsöver - domstolen ) refused leave to appeal .

On DATE the applicant lodged a request for reconsideration of his case . He now claimed that he had worked as a bodyguard for PERSON , the president of PERSON ( ORG pour la ORG ) . This had also been the real reason for the attack in DATE by ORG as they had wanted to interrogate him and then kill him . The applicant further alleged that he had received confirmation that his siblings had been killed by “ PERSON ” upon order by PERSON , a general within ORG . He was now very afraid of being returned to GPE as he would be arrested , tortured and killed for political reasons . Since he had been depressed , he had not understood the importance of telling every detail to the migration authorities .

On DATE ORG refused to reconsider the case . It noted that the applicant had invoked new circumstances for his asylum claim but found that he had given no valid grounds for why he had not invoked these reasons before . In this respect , it observed that he had been in GPE for DATE before mentioning these new reasons . In the ORG ’s view , it was an escalation of the applicant ’s story and not credible . Moreover , it considered that there were no impediments to the enforcement of the deportation order .

The applicant appealed to ORG , relying on the same grounds as before and adding that he had also been active for the organisations AC Genocide , la PERSON d’Auto - defense and ORG ( Parti pour le ORG ) . As he had been very depressed he had not thought of mentioning this before . Moreover , he had only been in contact with persons in GPE during DATE and they had informed him of his “ personal situation ” there . He submitted a copy of what he claimed was his membership card for ORG .

On DATE ORG rejected the appeal . It noted that the applicant had invoked new grounds for his asylum claim but agreed with ORG that he had shown no valid excuse for not having invoked these circumstances from the beginning .

On DATE the applicant lodged his application with the ORG and requested the ORG to apply Rule CARDINAL of ORG in order to stop the enforcement of his deportation , scheduled for the following TIME . As the application was incomplete and arrived very late in the afternoon , the applicant was informed that the request had been submitted too late to ORG for it to be able to make a proper examination of his request .

On DATE the applicant again contacted the ORG , informing it that his deportation planned for DATE had been postponed to a later , unknown date . Therefore , he renewed his request for interim measures and stated that he had been a fervent member of ORG . Since the PERSON government persecuted opposition parties and , in particular , PERSON , he had been forced to flee the country . In support , he submitted copies of what he alleged were :

His ORG membership card .

An arrest warrant ( ORG ) , no . CARDINAL , dated DATE and signed by General Major PERSON , Director of ORG ( ORG , ORG ) . It stated that the ORG ordered the arrest of the applicant for breach of national security ( PERSON à la Sécurité Nationale ) and requested all public authorities to help in apprehending him and taking him to the ORG or the police . The copy also contained some text in GPE .

An article from “ ORG ” , no . CARDINAL of DATE , and written by PERSON . It stated that on DATE the family of GPE had been attacked by men wearing police uniforms . CARDINAL persons had been killed , CARDINAL were children who were burned alive . Their brother , ORG , had been found unconscious at a cemetery and later disappeared . It was suspected that members of ORG and the police were responsible for the deaths as they allegedly wanted to eliminate all witnesses to the acts of genocide committed by persons in power within the governing party , the CNDD - FDD . As this family had lost members during the “ crisis ” , they had been ready to testify before the international criminal court .

On DATE the President of the former Third Section refused the applicant ’s request for interim measures . Subsequently , the applicant informed the ORG that he wished to maintain his application .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) . Both the old Aliens Act and the DATE Act define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

LAW , of the DATE Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .

Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) . Hence , upon entry into force on DATE of the DATE Act , ORG ceased to exist .

GPE is a constitutional republic with an elected government and a population of CARDINAL . PERCENT of the population are of NORP ethnic origin , PERCENT are NORP and PERCENT are GPE .

The political landscape of GPE has been dominated in DATE by the civil war and a long peace process and move to democracy . The country has a multi - party system where the parties are usually based on ethnic background .

ORG , Background note , GPE , DATE , sets out , inter alia :

“ GPE ’s civil war officially ended in DATE under a GPE - brokered cease - fire agreement with the last of GPE ’s rebel groups . In DATE , the PALIPEHUTU - FNL , the last rebel group , disarmed , demobilized and registered as a political party ( the ORG ) , in accordance with the terms of the agreement . DATE the government is focused on rebuilding its infrastructure and re - establishing external relations with its regional neighbours .

From DATE [ DATE ] , the country held elections for all public offices , including the first direct presidential elections since DATE . Following the May CARDINAL Communal Council elections , which the international community characterized as generally free and fair , a coalition of CARDINAL opposition parties alleged massive fraud and called for the annulment of the results and new elections . When the parties’ demands were not met , they withdrew their candidates from the subsequent presidential , legislative , and “ colline ” elections . President PERSON , of the ruling ORG for ORG for ORG ( CNDD - ORG ) party , ran unopposed in the DATE presidential election and was reelected to a second term . International observers characterized the elections as generally free and fair , although there were reports of political violence leading up to and throughout the DATE election season . ...

Human rights abuses during DATE included security force killings , torture , and mistreatment of civilians and detainees ; official impunity ; societal killings and vigilante justice ; harsh , life - threatening prison and detention center conditions ; prolonged pretrial detention and arbitrary arrest and detention ; detention and imprisonment of political prisoners and political detainees ; lack of judicial independence and efficiency ; official corruption ; restrictions on privacy and freedom of speech , assembly , and association ; ... ”

The DATE ORG country operations profile – GPE , states as follows in relation to land conflicts :

“ Access to land for returnees remains a priority . ORG supports the resolution of land disputes by working with the Government ’s land commission , ORG et autres PERSON ( PERSON ) . With the voluntary return of CARDINAL refugees from GPE , the ORG and other countries , the reintegration programme will be extended to the west and north of the country to cover the needs of returnees .

ORG will be advocating for the ORG and informal mechanisms to resolve land conflicts peacefully and to include returnees in national development plans . A contingency plan has been put in place in the case of forced returns from GPE . ORG will support the reintegration of CARDINAL returnees , including those repatriated in DATE and DATE and not yet assisted . Legal assistance will be provided to returnees facing land disputes . ”

ORG ( Solidarité jeunesse pour la défense des droits des minorités ) was founded in DATE by Father PERSON , a member of ORG ( expelled from the Order in DATE ) . It is a NORP youth organisation , by some considered extremist .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE .

NORP The applicant is the parish priest and chairman of the board of the catholic PERSON parish ( “ the parish ” ) in GPE . The parish has CARDINAL church , with CARDINAL church bell . Since DATE the church bell has been used in order to call parishioners to the services of worship .

NORP In order to call the parishioners to attend the TIME service , the applicant used to ring the church bell at TIME for TIME . On an unspecified date and following complaints of neighbouring residents that the ringing of the church bell disturbed their TIME ’s rest , the applicant reduced the ringing of the church bell at TIME to TIME .

As neighbouring residents had also lodged repeated complaints with the GPE municipal authorities , requesting the latter to intervene in respect of the excessive ringing of the parish church bell at TIME , the municipality carried out measurements of the sound levels involved . By letters of QUANTITY DATE and CARDINAL DATE the GPE Mayor and Aldermen ( College van Burgemeester en Wethouders ) issued warnings to the parish board , stating that the volume of the church bell ringing at TIME amounted to intolerable noise nuisance . The volume therefore had to be reduced and if the parish board failed to do so , an order for incremental penalty payments ( last onder dwangsom ) would be imposed , namely MONEY ( ORG ) for each violation to a maximum amount of LAW . The matter had further been discussed in a meeting between the applicant and representatives of the municipality on DATE .

Since the parish board failed to reduce the volume of the ringing of the bell in the mornings – also after a further warning by the Mayor and Aldermen on CARDINAL DATE – the GPE Mayor and Aldermen notified the parish board on DATE of their intention to impose an order for incremental penalty payments if the volume of the ringing of the bell before TIME was not reduced . According to the Mayor and Aldermen , this order was based on section QUANTITY of the DATE general municipal bye - law ( PERSON ; “ ORG ” ) in conjunction with section CARDINAL of GPE ( GPE ; “ WOM ” ) . As set out in the letter accompanying the notice , the right to freedom of religion had been weighed against the interests of others in the community . It had been decided that the ringing of the church bell in TIME at the volumes measured constituted intolerable noise nuisance . Failure by the parish board to reduce the sound level in TIME would contravene section CARDINAL § CARDINAL of the APV . A formal decision to this effect , having noted and taken into account the applicant ’s written comments on the notice of intention ( zienswijze ) , was taken on DATE .

The objection ( bezwaar ) filed by the parish against this decision was rejected by the Mayor and Aldermen on DATE . The parish filed an appeal with ORG ( rechtbank ) .

By judgment of CARDINAL DATE ORG accepted this appeal . It stated at the outset that it assumed that the appeal had been filed solely by the parish and that all legal acts undertaken by the applicant in the proceedings on the objection and appeal were done in his capacity as representative of the parish board . It found that calls to worship by ringing church bells fell within the scope of the right to freedom of religion within the meaning of LAW of LAW ( PERSON ) and that restrictions imposed on the ringing of church bells constituted an interference with that right . The municipality was nevertheless DATE on the basis of section CARDINAL ORG and for the purposes of avoiding noise nuisance – authorised to lay down rules and regulations as regards the duration and volume of the ringing of church bells provided that these did not render illusory the use of church bells or restricted it unnecessarily . ORG nonetheless quashed the impugned decision to impose penalty payments on the parish board since the legal provision on which it was based ( section CARDINAL § CARDINAL APV ) could not be applied to the ringing of ( a ) church bell(s ) . ORG judgment became final since no further appeal was lodged against it .

In DATE the GPE municipality decided to amend the ORG in order to fix rules for ringing ( a ) church bell(s ) and other means of calls to worship . On DATE , section CARDINALa of the ORG entered into force . This provision reads as follows :

“ TIME it is prohibited to issue a call to worship within the meaning of LAW CARDINAL of the Act on Public Manifestations by ringing ( a ) church bell(s ) or by other means if the volume exceeds the standards laid down in ORG Decree ( Besluit algemene regels voor inrichtingen milieubeheer ; “ Environmental Management Decree ” ) by CARDINAL dB(A ) and exceeds the reference volume of the surroundings by CARDINAL dB(A ) . ”

After new volume measurements had been taken on DATE in DATE , the Mayor and Aldermen again issued official warnings to the parish board as regards the sound level of the ringing of the church bell in TIME . Since the parish board was found to have failed to comply with the standards set out in section CARDINALa of the APV , the GPE Mayor and Aldermen notified the parish board on DATE of their intention to impose an order for incremental penalty payments on the parish board if it did not respect section CARDINALa of the ORG . Although invited to do so , the parish board did not file any written comments on the intention . A formal decision by the Mayor and Aldermen followed on DATE by which an incremental penalty payment of ORG CARDINAL,CARDINAL ( not exceeding a total amount of LAW ) would be imposed for each time the parish disrespected section CARDINALa of the APV after DATE .

NORP Since the parish board and the applicant failed to respect the applicable volume standards when ringing the church bell , the Mayor and Aldermen imposed an order for incremental penalty payments on DATE . An objection DATE with the parties’ consent converted into a direct appeal to ORG – against this decision was lodged by the applicant .

NORP By judgment of DATE ORG rejected this appeal . It again found that the municipal authorities were entitled DATE on the basis of section CARDINAL of the WOM – to fix rules for the duration and volume of calls to worship . Noting , inter alia , that no restrictions applied for ringing the church bell at issue TIME and TIME and finding that it had not been demonstrated that it would be impossible to moderate the volume by making adjustments to the clapper , ORG rejected the argument that the rules at issue rendered illusory the use of church bells for calls to worship .

The applicant ’s subsequent appeal to ORG ( PERSON ) of ORG ( PERSON ) , was rejected on DATE . In so far as relevant , this ruling reads :

“ CARDINAL . In accordance with LAW , everyone has the right to manifest freely his religion or belief , either individually or in community with others , without prejudice to his responsibility under the law . Under the second paragraph of this provision , rules concerning the exercise of this right outside of buildings and enclosed places may be laid down by law for the protection of health , in the interest of traffic and to combat or prevent disorders .

Under section CARDINAL of the ORG , ringing church bells in the context of religious ... ceremonies ... as well as for calls to worship ... is permitted . In this matter , the municipal council is competent to determine rules as regards duration and volume .

Pursuant to section CARDINALa of the ORG it is prohibited TIME to issue calls to worship within the meaning of LAW CARDINAL of the Act on Public Manifestations by means of ringing ( a ) church bell(s ) or by other means if the volume exceeds the standards laid down in LAW by CARDINAL dB(A ) and exceeds the reference volume of the surroundings by CARDINAL dB(A ) .

Pursuant to section CARDINAL § CARDINAL ( c ) of LAW , the sound for the purposes of calls to worship ... is not taken into consideration in the determination of sound levels , referred to in sections CARDINAL , CARDINAL and CARDINAL . ...

CARDINAL NORP The parish priest argues that ORG has wrongfully found that section CARDINALa of the ORG is binding . According to the priest , the court has failed to appreciate that the GPE municipal council , in violation of section CARDINAL of the ORG , has not given reasons for the necessity of determining a volume restriction for the period lasting from TIME This is even more cogent since the duration of this period renders the call to worship illusory or at least restricts this unnecessarily as the morning service starts at TIME and PERCENT of the parishioners can be reached if the ringing of the church bell is muffled . In this connection , the priest further submits that muffling DATE in so far as possible in practice – requires a disproportionate effort on his part .

The parish priest further argues that the fixed period is contrary to section CARDINAL of LAW because it is stipulated therein that the period of TIME lasts from TIME In his opinion , the manner in which section CARDINALa of the ORG has been drafted furthermore results in legal uncertainty , because it can not be deduced from this to what concrete sound volume standard of LAW the ringing of ( a ) church bell(s ) is bound .

The parish priest claims that the only reason why the municipal council has chosen to have the period subjected to the restriction last until TIME is to oppose the church bell ringing in this concrete case . He therefore claims that section CARDINALa of the ORG does not serve the municipal interest but only the special interests of complaining neighbouring residents , thus rendering the provision also for this reason non - binding .

The second sentence of section CARDINAL of the WOM confirms that ... the municipal council may determine rules for the duration and volume of ringing church bells for the purpose of issuing calls to worship . As appears from the drafting history of this provision , this form of church bell ringing forms part of the liturgy and can be regarded as a manifestation of religious beliefs which is protected by LAW . ... A reasonable interpretation of [ this provision ] entails that this right does not imply the freedom to ring church bells without any limits as regards duration and volume . The power described in the second sentence of section CARDINAL of the ORG is aimed at the prevention of excesses where it concerns duration and volume . Legal rules determined for this purpose at a municipal level can , depending on local circumstances and needs , be adjusted to the occasions and times when the bells are to be rung . This kind of regulation of duration and volume within reasonable limits , without leading to a situation where a meaningful use of the ringing of the bell(s ) no longer remains , must be considered as not restricting the freedom of religion . ... ”

ORG has ... rightly considered that the municipal council did not act contrary to section CARDINAL , second sentence of the ORG by limiting the volume of the church bell ringing for part of the daily TIME period . It appears from the explanatory notice on section CARDINALa of the ORG that the municipal council chose to apply the prohibition contained in that provision between TIME and TIME , because this is the time when most people enjoy their TIME ’s rest . TIME rest can be disturbed when calls to worship are made in a loud manner . Because a call to worship is a manifestation of everyone ’s right to practise freely his or her religion , some noise nuisance must , according to the municipal council , be tolerated and the prohibition only applies to excessive forms of noise nuisance with a sound level that exceeds by CARDINAL dB(A ) the standard laid down in ORG and by CARDINAL dB(A ) the sound level of the surroundings . ORG finds that the municipal council has thus sufficiently reasoned why the TIME at issue have been chosen and , after having weighed the interests involved , can be considered to have reasonably decided upon that time frame . The fact that church bell ringing at a lesser volume may reach a smaller number of parishioners to call them to attend the TIME mass than without such a restriction and that muffling the church bells meets with practical objections can not lead to a finding that no use of any significance could be made of the bells . In this connection , ORG has rightly considered that section CARDINALa of the ORG does not render illusory the possibility to practice religion as this provision does not make it impossible to ring the bells before TIME and no restrictions apply for the sound level of church bell ringing TIME and TIME

In view of the above , ORG subscribes to the finding of ORG that section CARDINALa of the ORG does not go beyond the competence set out in section CARDINAL § QUANTITY of the ORG .

CARDINAL.CARDINAL.CARDINAL . There is also no ground for holding that the choice of the period at issue violates LAW . ORG has rightly considered that it is not necessary to examine the compatibility of section CARDINALa of the ORG with LAW as this provision finds its basis in the ORG and section CARDINAL § CARDINAL ( c ) of LAW stipulates that sound for the purpose of issuing calls to worship is not taken into consideration in the determination of sound levels within the meaning of that Decree . It appears from the explanatory memorandum to that provision that this choice has been made , because the system of the LAW in conjunction with the ORG was considered to be the appropriate framework for regulating the ringing of church bells , rather than regulation in ORG .

CARDINAL.CARDINAL.CARDINAL . Although LAW is not directly applicable in respect of the permissible noise levels , ORG finds that the municipal council was entitled to link it to the noise standards laid down in LAW , as this indicates in an objective sense when one can speak about noise nuisance . Contrary to what has been argued by the parish priest , it appears sufficiently clearly from the text of section CARDINALa of the APV , in which explicit reference is made to the norms set out in LAW , what volume of church bell ringing is allowed during what part of DATE . ...

DATE . ORG also does not share the parish priest ’s opinion that section CARDINALa of the ORG does not serve the municipal interest . That the regulation of the duration and volume of church bell ringing can be regarded as [ pursuing ] a municipal interest already follows from the second sentence of LAW ORG in which the competence of the municipal council on this point is confirmed . In this case , the municipal interest lies concretely in the protection of the inhabitants of the municipality against disturbance of their ORG rest . The ORG provision at issue applies to all religious and other bodies who are issuing calls DATE by the ringing of bells DATE to manifest a religion or belief . Although , as correctly pointed out by him , it was the church bell ringing by the parish priest which has led to the insertion into the ORG of the provision at issue , this does not entail that no municipal interest was at stake .

In view of the above considerations , ORG has correctly found that section CARDINALa of the ORG is not non - binding . ORG has also rightly held that the municipal council – in view the noise measurements made – was correct in its finding that the parish priest had breached that provision , so that the municipal council was competent to act in a manner aimed at securing compliance with the rules . ”

No further appeal lay against this ruling .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON , of ORG .

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

The applicant was prosecuted for exceeding the speed limit authorised outside built - up areas ( CARDINAL k.p.h . instead of the permitted CARDINAL k.p.h . ) at Peyrolles on DATE .

In a judgment delivered on DATE , the Aix - en - ORG acquitted him , finding that there was insufficient evidence to convict .

On an appeal by the prosecution , the Aix - en - Provence Court of Appeal reversed that judgment on DATE and found the applicant guilty of exceeding the speed limit . It imposed a fine of MONEY and disqualified him from driving for DATE .

In its judgment , it held , inter alia :

“ The aforementioned particulars in the incident report which served as the basis for the prosecution show that it was indeed the accused 's vehicle , whose registration number and make were correctly noted , which was intercepted after its speed had been recorded . The gendarmes ' findings are not refuted by the accused 's bare denials ...

Consequently , ... this ORG reverses the judgment appealed against and , there being no need to order additional investigations , finds the accused guilty as charged . ”

The applicant appealed on points of law but , in a judgment delivered on CARDINAL DATE , ORG dismissed his appeal .

The applicant 's conviction therefore became final and on DATE ORG of GPE issued a formal demand for payment of the fine that had been imposed by the Aix - en - Provence Court of Appeal in its judgment of CARDINAL DATE .

The applicant applied to the Aix - en - Provence Court of Appeal for relief under LAW ( Law no . CARDINAL of DATE ) . The application was rejected by ORG in a judgment of DATE , in which it found : “ The offence the applicant has been found guilty of is excluded from LAW by virtue of section CARDINAL(CARDINAL ) of that LAW . ”

The applicant appealed to ORG . In a single ground of appeal , he relied on LAW and “ the rights of the defence as a whole ” , essentially arguing that ORG had not given adequate reasons to explain why the offence did not qualify for an amnesty under LAW . In his submission , he was entitled to an amnesty , as the only way he could be deprived of that right was by the retrospective application of LAW .

In a judgment delivered on DATE and served on DATE , ORG dismissed the appeal .

“ The following shall be excluded from the scope of this LAW :

( CARDINAL ) The minor road - traffic offences referred to in sub - paragraph CARDINAL of Article R. CARDINAL of FAC as worded on DATE . ”

This provision was worded as follows under the decree of DATE , which came into force on CARDINAL DATE :

“ Any breach of the ORG listed below ... shall give rise to the automatic deduction of points as follows :

CARDINAL points shall be deducted for relatively serious offences [ délits ] under the following Articles :

CARDINAL points shall be deducted for minor offences under the following Articles :

– ... exceeding the speed limit by CARDINAL k.p.h . or more ;

One point shall be deducted for minor offences under the following Articles :

I. – This decree shall enter into force on DATE .

II . – ( a ) NORP The number of points to be deducted for offences proved ... prior to CARDINAL DATE shall continue to be calculated in accordance with the provisions of the aforementioned decree of DATE .

( b ) The number of points to be deducted for offences committed before DATE but not proved until after that date shall be calculated in accordance with the provisions of this decree .

III . – The number of points allotted to each driving licence on DATE shall be doubled on DATE . ”


The applicant is a NORP and NORP citizen of NORP origin who was born in DATE and lives in GPE , GPE .

In DATE the applicant married a NORP citizen , PERSON , with whom he had CARDINAL children in DATE and DATE . The children also have dual nationality . In DATE the parents divorced and ORG ( käräjäoikeus , tingsrätten ) of GPE awarded the mother sole custody of the children , whereas they were entitled to receive unsupervised visits by the applicant DATE and during certain holidays . In DATE ORG ( hovioikeus , hovrätten ) of PERSON ordered that the meetings should take place on specific LOC outside the home of the children . The applicant was refused leave to appeal to ORG ( korkein oikeus , högsta domstolen ) .

In DATE the applicant sought to be awarded joint custody of his children as well as to have the visiting arrangements modified . With the mother ’s agreement , he had been caring for the children in his home despite the terms of ORG judgment . In DATE , however , the mother had refused to comply even with those terms , instead insisting on supervised visits . The applicant requested that the children be allowed to stay with him in his new family ( his new wife and their mutual child ) during most of DATE . At any rate , the applicant requested to obtain information from the authorities on matters relating to his children .

During the family advice centre ’s investigation into the best interests of the children the parents agreed to the children being interviewed in DATE . Shortly before the date in question the mother telephoned the applicant from GPE , where she gone with the children . In its recommendation of DATE to ORG the family advice centre favoured the applicant ’s request to have the children stay with him during holidays .

Before ORG both parents were assisted by members of the Bar . The court took oral evidence from the parties and the mother ’s sister . The mother opposed the applicant ’s requests to ORG and could only agree to supervised visits twice a month in GPE . She stressed the dual nationality of the children and their inclusion in the applicant ’s passport , which would facilitate their abduction to GPE . She also pointed out that his new wife was also NORP .

On DATE ORG maintained the sole custody of the children . Agreeing with the local family advice centre , ORG nevertheless entitled them to spend most of their school holidays with the applicant in GPE . ORG had particular regard to the distance between their current home in GPE and that of the applicant in GPE , which would have rendered the access arrangement proposed by the mother impracticable and expensive . ORG further entitled the applicant to obtain information from the authorities on matters relating to his children .

On the mother ’s appeal ORG , in DATE , stayed enforcement of ORG judgment . In its judgment of DATE ORG ordered that the meetings between the children and the applicant could only take place where the children were living in GPE . The meetings were further to be supervised and could only take place on LOC which the applicant had located in advance . ORG noted the applicant ’s declared intention to bring the children to his parents in GPE , which had raised fear in PERSON that the children could be abducted . In the absence of a bilateral treaty preventing child abduction from GPE to GPE and given the age of the children and their current place of residence , ORG concluded that it was not appropriate for meetings between them and the applicant to take place in GPE .

ORG reached its judgment after a re - hearing , where the parents were again assisted by counsel and which included the taking of testimony from CARDINAL additional witness on behalf of PERSON and from CARDINAL further witnesses proposed by the applicant . ORG also had regard to information from the NORP authorities as well as to the applicant ’s solemn undertaking at ORG to return to GPE with the children after any visit to his parents .

In seeking leave to appeal to ORG , again with the assistance of counsel , the applicant argued that he had been discriminated against on the basis of his origin in that ORG had suspected him of planning to abduct his children to GPE . ORG had furthermore wrongly assumed that the NORP authorities would be assisting in locating LOC for the visiting arrangements . The applicant further argued that had he wanted to abduct the children he would have had ample opportunity to do so at an earlier stage , when he was occasionally caring for the children in their mother ’s absence , even after ORG judgment of DATE . Leave to appeal to ORG was refused on DATE .

Meanwhile , in DATE ORG of GPE in GPE dismissed the applicant ’s request for enforcement of the visiting arrangements , noting that according to the mother she had not been obstructing the preparation of visits . On the contrary , the applicant had not been in contact with her to agree on the dates of the visits . It is not known whether the applicant appealed against this decision . In DATE the applicant moved to GPE .

According to LAW and Right of Access ( laki lapsen huollosta ja tapaamisoikeudesta , lag angående vårdnad om barn och umgängesrätt CARDINAL ) , a matter relating to child custody and right of access shall be resolved by keeping the interests of the child foremost in mind . To this end , special attention shall be paid to the manner in which custody and right of access may best be realised in the future ( section CARDINAL ) .


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

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

On DATE the former ORG ( místní národní výbor ) assigned a CARDINAL - room flat to PERSON and his wife , PERSON , in a ORG owned apartment house .

On DATE ORG ( bytový podnik ) brought proceedings against PERSON and a certain Ms Z before the Prague CARDINAL ORG ( obvodní soud ) asking that their tenancy be terminated and that PERSON and Ms Z be ordered to leave the flat . It alleged that the tenants had failed to pay the rent for DATE .

By a judgment of DATE , ORG terminated the tenancy of PERSON and Ms Z , and ordered them to leave the flat within DATE of the allocation of a substitute flat by the competent national council . The judgment was served on the parties at DATE . On DATE it became final .

On DATE Mr X commenced divorce proceedings against Ms Y. The judgment declaring the divorce was notified to the latter at her new address in DATE . The judgment of DATE was served on her in DATE .

In DATE the applicant became the owner of the apartment .

On DATE he introduced a civil action in ORG , seeking a declaration that the eviction of PERSON should not be conditional on the allocation of alternative accommodation . The applicant claimed that the former tenant had not paid the rent and maintenance contributions for DATE . He submitted that the flat had been assigned to PERSON and his wife , PERSON , on DATE and that after their divorce , PERSON had been provided with a substitute flat , PERSON having continued to occupy the common flat . The applicant further submitted that ORG had terminated the tenancy of PERSON and his wife , and had ordered them to leave the flat within DATE of the allocation of a substitute flat by the competent national council .

On DATE ORG dismissed the applicant ’s action finding , inter alia , that the fact that PERSON owed rent for DATE , or that he had caused disorder in the house , did not substantiate the applicant ’s argument that the circumstances , on which the original judgment of CARDINAL DATE had been based , had changed , thereby justifying its modification .

On DATE ORG ( městský soud ) quashed the first instance judgment , finding that the former tenant ’s continued unlawful behaviour , which had constituted the reason for the termination of the tenancy , had to be considered as an alteration of the circumstances ( změna poměrů ) on which ORG had originally based its judgment of DATE . It ordered ORG to clarify the circumstances in which PERSON had defaulted on the payment of his rent .

On DATE ORG again dismissed the applicant ’s action on the ground that the applicant had not proved that PERSON had violated his tenancy obligations . It further held that the amount of rent which the applicant had asked PERSON to pay was contrary to the national law .

On DATE ORG upheld ORG judgment applying , inter alia , section III(CARDINAL ) of Act no . CARDINAL/CARDINAL which amended LAW . The court modified , however , the reasons for the decision . It held that the judgment of DATE had not become final and could not , therefore , be modified upon the applicant ’s request . It found that the eviction order had not been directed against the same persons , to whom the flat had originally been allocated in DATE . It further found that Ms Y had not been a party to the DATE proceedings , and the fact that the DATE judgment had been notified to her in DATE was irrelevant .

On DATE ORG ( Vrchní soud ) dismissed the applicant ’s appeal on points of law ( dovolání ) . The court , considering that the judgment of ORG was a decision which had modified the first instance judgment , applied section CARDINAL(CARDINAL)(a ) and section CARDINAL(CARDINAL)(d ) of the Code of Civil Procedure ( see “ Relevant domestic law ” , below ) . It shared ORG opinion that , if the original decision ordering the tenant ’s eviction upon the allocation of a substitute flat had not become final , the applicant could not evict him without alternative accommodation being provided . The court added that the relevant judgment had clearly referred to Ms Z and not PERSON , and that this had not been rectified , at least under LAW CARDINAL of the Code of Civil Procedure .

On DATE ORG ( PERSON ) dismissed as being manifestly ill - founded the applicant ’s constitutional appeal ( ústavní stížnost ) , in which the applicant had alleged a violation of Articles QUANTITY and LAW základních práv a svobod ) , as well as LAW .

Section CARDINAL(CARDINAL ) and ( CARDINAL ) provides that a judgment , which has been duly served and which can no longer be appealed , becomes final . Once a case has been adjudicated and the decision has become final , it may not be reconsidered .

Pursuant to section CARDINAL ) , the president of a chamber may rectify anytime and , if necessary ex officio , clerical errors or any other evident incorrectness in a judgment .

Under section CARDINAL(CARDINAL)(a ) , an appeal on points of law is admissible against a judgment of an appellate court , whereby the first instance judgment was modified .

Pursuant to section CARDINAL(CARDINAL)(d ) , an appeal on points of law may be filed on the ground that a decision was based on the incorrect legal consideration of the matter .

Section III , containing the concluding and interim provisions , provides in its sixth sub - section that final judgments ordering an eviction from an apartment which were adopted before the entry into force of this LAW , and which made the eviction conditional on the allocation of a substitute flat or other accommodation , retain their conditional nature . The beneficiary may nevertheless request a court , which is competent to execute the judgment , to modify that order and declare that the party leaving the flat should only be provided with substitute accommodation rather than a flat , or that no alternative housing need be allocated at all .

Article CARDINAL § CARDINAL provides that everyone may assert his or her rights before an independent and impartial court of justice or , in specified cases , before another authority .

Under LAW , everyone is entitled to have his or her case considered in public without unnecessary delay , in his or her presence , and to express his or her opinion on all the submitted evidence . The public may be excluded only in those cases specified by law .


CASE OF NIKOLOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

By a judgment of ORG ( “ the first - instance court ” ) of DATE ( “ the DATE judgment ” ) , confirmed by ORG on DATE , the applicant and his neighbour ( “ the defendant ” ) were ordered to build a concrete supporting wall between their adjacent plots of land to protect the applicant ’s house from damage . The civil courts found that the applicant should bear PERCENT of the costs , and the defendant PERCENT . The defendant was ordered to reimburse the applicant for the trial costs . Finally , an injunction was issued authorising the applicant to build the wall at the defendant ’s expense if the latter had failed to do so as required . The injunction was valid until the DATE judgment became final .

On DATE the first - instance court accepted the applicant ’s request for enforcement of the DATE judgment by way of seizure of the defendant ’s immovable and immovable assets . The court also ordered the defendant to deposit his part of the costs for the construction of the wall ( court deposit ) .

On DATE the first - instance court decided that offers should be collected for construction of the wall . On DATE company B. ( “ the construction company ” ) was chosen to build the wall . On CARDINAL DATE an on - site inspection was carried out .

On DATE the first - instance court ordered the parties to deposit with it money as established by the DATE judgment . It further ordered the defendant to deposit an amount to secure the applicant ’s trial and enforcement costs . It was also stated that in case of non - compliance , the payment would be enforced by an inventory and public sale of assets . The applicant deposited his part not with the court , as ordered , but with the construction company .

CARDINAL hearings fixed DATE and DATE were attended by the applicant . As the defendant failed to deposit the amount required , the enforcement proceedings continued with the drawing up an inventory of his belongings . Despite the court ’s orders of DATE and CARDINAL DATE requesting the defendant to surrender certain movable assets to bailiffs , it appears that no items were seized or sold by the enforcement authorities . In the meantime , the defendant had constructed a wall . On DATE the court made a further on - site inspection to examine the wall . At a hearing of DATE , the applicant requested the construction company to use his deposit to complete the wall so as to comply with the DATE judgment .

The applicant attended the CARDINAL hearings which were scheduled DATE and DATE . On DATE the first - instance court ordered the applicant to pay the costs of an on - site examination under threat of suspension of the proceedings . The applicant has submitted to the ORG a payment slip of DATE .

On DATE the first - instance court fixed an on - site examination to be carried out on DATE at the defendant ’s home with a view to seizing the latter ’s movable assets . The court also requested the presence of CARDINAL policemen in case assistance was needed . According to TIME of the on - site examination , the first - instance court examined the wall again .

A hearing listed on DATE was adjourned because of the absence of the sitting judge .

At a hearing of DATE , the first - instance court scheduled another on - site examination of the wall constructed by the defendant . The inspection took place on DATE . DATE , the applicant paid the expert fees .

On CARDINAL DATE the first - instance court found that the wall constructed by the defendant in DATE had not met the criteria established by the DATE judgment . It further determined that the wall , as constructed , corresponded to PERCENT of the value of the wall as the court had ordered , and that the defendant should cover PERCENT of the expenses for the improvement works . With reference to the DATE judgment , it ordered the applicant to cover PERCENT of the expenses for the improvement works . It established , inter alia , that the applicant had not deposited , as ordered , his part of the expenses with the court , but with the construction company , which had not released him from the obligation established by the DATE judgment . It further stated that the applicant , after having realised that the defendant had constructed part of the wall , should have withdrawn his deposit from the construction company . Finally , it concluded that the applicant should have deposited the money with the court and that he should have required the court to order the construction company to build the wall . The part of expenses to be borne by the defendant was to be secured by an inventory and sale of the latter ’s belongings . On DATE the ORG confirmed that decision .

On DATE the first - instance court ordered the applicant to deposit money equivalent to PERCENT of the cost of improving the wall under threat of suspension of the proceedings . It appears that no such order was issued against the defendant given the latter ’s statement that he would deposit the remaining part after the applicant had done so . On DATE the applicant objected to that order arguing that he had already made his deposit with the construction company on the basis of the court decision of CARDINAL DATE .

No further information has been provided as regards the subsequent enforcement proceedings .


Preliminary objection joined to merits (Article 35-3 - Ratione materiae);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions)

George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

In DATE the applicant began practising as a general medical practitioner from premises which he owned . He was a sole practitioner and at the time of the events to which this application pertains he had a patient list of CARDINAL patients , many of whom were from the local NORP population .

On DATE , he entered into a contract with ORG ( “ the PCT ” ) in accordance with ORG ( ORG Regulations DATE ( see paragraph CARDINAL below ) . Under the terms of the contract , the applicant was obliged to ensure the provision of medical services to ORG patients registered with his medical practice . He could ensure this provision either by performing services himself or by employing another doctor to do so . The applicant was entitled , under the contract , to receive DATE payments from the PCT based on the number of patients registered with his practice . The PCT also paid him notional rent for his premises as they were used for ORG purposes . This was a discretionary payment , rather than an entitlement .

On DATE a monitoring visit by the PCT took place at the applicant ’s medical practice LOC . On DATE the medical director of the PCT wrote to the applicant informing him that the visit had demonstrated “ the serious risk you pose to patients under your care ” . The applicant was advised that he had been suspended “ to protect the interests of patients while a more detailed investigation into the issues of concern take place ” .

The applicant challenged the suspension and a hearing before the PCT was arranged for DATE . In the meantime the applicant ’s insurers wrote to the PCT expressing the view that the suspension was unlawful . They made an offer to the PCT that the applicant would voluntarily absent himself from practice for DATE to enable him to deal properly with the matters relied on against him . The offer was not accepted .

The PCT arranged for locum cover for the applicant ’s patients . These services were not provided at his surgery premises because it was not possible to find a locum prepared to work from the LOC owing to their unsatisfactory condition .

On DATE the PCT sent a letter to the applicant setting out the matters to be relied on in support of the suspension and referring specifically to regulation CARDINAL ) of ORG Performers Lists ) Regulations CARDINAL ( “ LAW ” – see paragraph CARDINAL below ) . The letter identified a number of defects , namely : inadequate disease registers and patient records ; lack of clinical knowledge in relation to bipolar disorder , emergency contraception and smoking cessation ; inadequate maternity services ; lack of proper sterilising equipment and the discovery of a bottle of orange juice in a fridge containing flu vaccine ; and inadequate arrangements for out - of - hours cover and TIME .

Prior to the hearing scheduled for DATE , the applicant sent a medical certificate notifying the PCT that he was suffering from flu . He repeated his offer to abstain from practice pending a hearing at a later date . However , the PCT went ahead with the hearing in his absence . On DATE the PCT wrote to the applicant informing him that the suspension was to continue .

On DATE the applicant ’s solicitors wrote to the PCT alleging that its actions were unlawful . On DATE the ORG ’s solicitors responded stating :

“ The PCT considers that there were procedural irregularities surrounding decisions taken on DATE and DATE . Consequently , the PCT considers that those decisions should now be treated as nullities and/or revoked . ”

They indicated that a hearing would be held to decide whether suspension should take place after giving proper notice . A new hearing was arranged for DATE .

At the hearing on DATE , it was decided to suspend the applicant for DATE .

The applicant subsequently commenced civil proceedings seeking a declaration that the suspensions were unlawful and that any subsequent hearing must be by a freshly appointed panel and must have a legally qualified chairman . The legal action proceeded as a claim for judicial review of the suspension .

By letter dated DATE the applicant was advised that , pursuant to regulation CARDINAL(CARDINAL ) of LAW ( see paragraph DATE below ) , payments could continue to be made to him under the PCT contract in accordance with a determination by the Secretary of ORG . The entitlement was to be based on a reasonable approximation of what amounted to PERCENT of his normal DATE profits under the PCT contract ( see paragraph CARDINAL below ) .

The applicant ’s solicitors replied on DATE that they were considering whether the payment offered was correct and would respond in due course . In the meantime , they requested confirmation that the suspension payments were to commence only as of DATE , and not DATE .

NORP By letter dated DATE the applicant ’s solicitors raised CARDINAL further matters for the PCT ’s consideration , namely whether the applicant should continue to be paid rent and whether his staff costs should be paid by the PCT .

NORP By letter dated DATE the PCT explained to the applicant that the reason he had not received any rent for DATE and DATE was that the LOC were no longer being used for ORG purposes .

On DATE the ORG offered the applicant a fresh hearing regarding his suspension . It refused him a legally qualified chair and legal representation , but had no objection to his adviser attending .

By letter dated DATE the applicant ’s solicitors indicated that he would be willing to settle the judicial review proceedings if his suspension was quashed ; his costs were paid ; and losses incurred as a consequence of the reduced payments under the ORG contract were compensated .

On DATE the PCT notified the applicant that prior to the fresh hearing , it would revoke the existing suspension .

On DATE a fresh statement of case was served by the PCT setting out the matters to be relied on at the hearing . This covered all matters which had given rise to concern since DATE .

On DATE the judicial review proceedings were adjourned pending the fresh hearing , which was to take place on DATE . Although the ORG had previously said it would revoke the suspension imposed at the hearing on DATE , this was not done .

Following the hearing on DATE , the applicant was suspended for DATE under regulation CARDINAL ) of LAW ( see paragraph CARDINAL below ) .

On DATE ORG handed down its judgment in the applicant ’s claim for judicial review .

As regards the purported suspension of DATE , Mr Justice PERSON found :

“ It was apparent that this was a purported exercise of the power conferred by regulation CARDINAL(CARDINAL)(a ) . It was unlawful . It breached regulation ORG ) in that the claimant was neither told of the allegations against him nor given any opportunity to deal with them . It was also manifestly unfair . I can only express surprise that a PCT should so blatantly disregard not only the clear terms of the regulations but also the guidance given by the ORG and act in such an unfair manner . ”

As to the hearing in the applicant ’s absence on DATE , the judge considered that :

“ Again , [ the PCT ] clearly acted in a manner which was unfair since the agreement to maintain a voluntary suspension meant that patients could not have been at risk if the hearing had been delayed . In fact , if they had taken advice , they would have been informed that the whole procedure was unlawful since they should not have suspended the claimant on DATE and so the hearing could not properly have considered representations against the decision to suspend . Rather , the PCT had to decide whether suspension was required and the burden was on them to justify suspension . ”

He found that the decision following that hearing to continue the applicant ’s suspension was also unlawful , commenting :

“ In yet further breach of the regulations , this time regulation CARDINAL ) , the defendants failed to specify the period for which the suspension was to last . They gave as their reason for not accepting the offer of voluntary suspension that that ‘ would not prevent you from working as a locum at another practice’ . I am singularly unimpressed with that reasoning . The undertaking could easily have been extended to cover that if the defendants had bothered to raise it with the claimant and his advisers . ”

Regarding the hearing of DATE , the judge concluded :

“ Unfortunately , there were serious flaws at the hearing of DATE which in my judgment rendered it unfair and so unlawful . The presenting officer was not content to rely on the matters of which notice had been given but proceeded to refer to a number of other matters against the claimant none of which had been put to him . This was a breach of regulation ORG ) . The chairman failed to stop him doing this , but contented herself , according to the notes provided subsequently , with instructing her colleagues on the panel after they had retired that ‘ a lot of unnecessary information had been ORG and advising them ‘ to confine their discussion to the issues which had been considered by the previous panel and those which PERSON had been notified of’ . The notes show that this did not happen since during the discussion reference was made to PERSON being ‘ unclear about the prescribing of colostomy bags and food GPE . Those related to matters not the subject of prior information . In any event , the matters raised must inevitably have prejudiced the claimant and the failure to exclude them at the hearing was itself unfair . Added to this , there was the failure to have [ a relevant witness ] attend despite the promise that he would and the observations of the presenting officer , compounded by the chairman , that the meeting was to review the decision to suspend the claimant . That has not been pursued by [ counsel for the applicant ] , but it is symptomatic of the failure by the PCT to follow the proper procedures . ”

As to the decision to suspend the applicant following that hearing , he said :

“ That [ decision ] was , quite apart from the unfairness of the hearing , unlawful since he had already been suspended on DATE and so could not be suspended beyond DATE . ”

Finally , in respect of DATE hearing , the judge concluded that , in light of the fact that the PCT had failed to revoke the previous suspension :

“ ... the hearing on DATE was clearly unlawful since there was already an existing suspension in being ( assuming that that imposed on DATE was lawfully imposed ) and further the claimant had already been suspended ( whether lawfully or not being irrelevant ) for DATE . ”

Having concluded that the applicant ’s suspension was unlawful , the question then arose whether there had been a breach of LAW No . CARDINAL . The relevance of the question was that only a breach of the applicant ’s human rights would have entitled him to damages under LAW DATE .

Noting that under the terms of domestic legislation ( see paragraph CARDINAL below ) a doctor was prohibited from selling the goodwill in his practice , the judge found :

“ In this case , inclusion in the list is akin to the possession of a licence . While the goodwill of the practice is not marketable , the inclusion has an intrinsic value in that it enables the doctor to practise . Since the amount of his remuneration will be affected by his patient numbers , suspension may well affect the economic value to him of his practice . Thus inclusion in the list has a present value apart from the right to future income and , as it seems to me , the decision in PERSON v The GPE supports the view that it can and does amount to a possession ... ”

He was therefore persuaded that inclusion in the list was a “ possession ” for the purposes of LAW No . CARDINAL . Had the suspension been properly and lawfully imposed , he indicated that he would have had no doubt that the interference would have been proportionate and so justified . However , as it was unlawful for the reasons given , the interference was not justified . He concluded :

“ ... Thus if the claimant can establish that he has suffered recoverable damage he may be entitled to some sums to recompense him for such loss . Since he should have been receiving payment which should have maintained his income , he may have difficulty in establishing any loss . However , I am not in a position to decide that issue . ”

The PCT and the Secretary of ORG appealed against the finding that there had been a violation of LAW No . CARDINAL . No appeal was lodged against the finding that the suspensions had been unlawful .

On DATE the applicant ’s solicitors wrote to the PCT referring to the ORG declaration that the suspension of the applicant from the Performers List was unlawful . They indicated that the applicant wished to return to practice as soon as practicable . By letter dated DATE the ORG agreed that the applicant could return to practice . However , given previous concerns regarding the medical practice LOC , the PCT wished to arrange a site inspection as soon as possible .

NORP By letter dated DATE the applicant ’s solicitors confirmed that he consented to the site inspection and reiterated that he was anxious to return to practice as soon as possible . However , they explained that in order to ensure an orderly and organised return , he favoured a gradual reintroduction to work , with part - time work alongside another general practitioner .

On DATE the applicant ’s solicitors requested from the PCT information concerning the size of the applicant ’s patient list immediately before the purported suspension in DATE and as it currently stood .

By letter dated CARDINAL DATE the applicant ’s solicitors informed the ORG that his health had deteriorated and that he was suffering from a stress - related illness . Accordingly , they requested that plans for the applicant ’s return to practice be held in abeyance .

On DATE the ORG ’s solicitors confirmed that the applicant ’s patient list size was CARDINAL patients on DATE and CARDINAL patients on DATE .

On DATE ORG handed down its judgment . Lord ORG identified CARDINAL questions for the court ’s consideration . The first question was in what respect future income could be an LAW possession ” . He considered it well established that LAW protected a right to existing possessions but not a future right to receive possessions . He continued :

“ ... [ G]oodwill in the sense of an established client - base with its own inherent market value along with other existing assets of a business , may often not be readily distinguishable from future earning prospects from existing trading circumstances , since the existence or valuation of goodwill will turn at least in part on projected future earnings . However , no such blurring of the line can occur here , since Dr PERSON ’s clientele in the form of the patients registered with him has no economic value and so can not constitute a ‘ LOC because of statutory denial to him of any marketable goodwill in his patients list ... ”

As to the approach of this ORG to the question , the judge noted :

“ PERSON , unlike PERSON and other such cases , did not , on its facts , turn on loss of goodwill and/or diminution in value of physical assets , but on what the ORG appears to have regarded as a sort of acceptable middle position , CARDINAL of a legitimate expectation of future earnings ...

However , and with respect to ORG , the shadowy nature of such possessory entitlement is evident from the way in which it disposed of the case against the applicants . It held – assuming without deciding that the NORP ORG ’s decision had the effect of interfering with that entitlement DATE that the interference would have been justified under the second paragraph of the Article as being in the general interest ...

In my view and with respect , ORG and ORG in Countryside displayed a surer touch , both of principle and practicality in rejecting the possibility of any such middle position between goodwill as a possession and future income which is not ... ”

Thus on the question whether future income could be a “ possession ” , the judge concluded :

“ In summary on the issues of goodwill and legitimate expectation , there is clear GPE authority , in GPE and other cases , and domestic authority , in GPE , that the assets of a business may include possessions for the purpose of LAW in the form of ‘ PERSON or goodwill of the business . Where such clientele / goodwill exists , measures that diminish its value , as , for example in PERSON , interference with professional practice , may engage LAW . But where it does not exist , as it does not here , ORG decision in Countryside ... is also clear authority for the proposition that , without it , mere prospective loss of future income can not amount to a possession for the purpose . Equally , any consideration of a further category of LAW based on a notion of legitimate expectation in this context would unacceptably blur that distinction of principle . It would also , as I have indicated , lead to great difficulties of practical application in the next stages of the LAW exercise of identifying precisely what legitimately expected ‘ ORG had been interfered with and to what extent , and in considering the ‘ legitimacy’ of the expectation against considerations of the general interest on the issue of justification . ”

On the second question DATE whether a personal permission , in the form of inclusion on a professional list , or a licence was a possession – he noted :

“ ... Something may have value to a person though it may have no value in the market . One can not comprehensively define possession for this purpose by reference to a person ’s ability or wish to sell it ... objects that may be of no economic value to their possessors – wholly unmarketable DATE may have a sentimental or other personal value to them for the protection of their enjoyment of which LAW should , if necessary , provide .

Where ... the possessory right claimed is , as here , to some intangible entitlement conferred by a licence or other form of permission to the grantee to continue to follow an activity to his advantage , it seems to me that some additional factor is necessary to render it a ‘ possessory’ entitlement as distinct from the broader concept of a legal right to do so . In many or most cases , such identification is likely to depend on the existence of some present economic value of the entitlement to the individual claiming it conferred by a licence or other form of permission .

The questions of principle in this case DATE which is concerned with potential loss of livelihood – is , therefore , whether economic value is a distinguishing feature of a possessory right and whether it can only be identified in the sense of marketability . If it is not so confined , where , in any given case is the boundary between an LAW and some other and broader Convention right not amounting to such a possession ? ”

He considered that it was necessary to distinguish between claimed future monetary entitlements derived from an instrument such as a licence or permit and a claimed future entitlement based on a personal interest in enjoyment of it but not involving any monetary claim . He concluded :

“ The matter has , in any event , been put beyond doubt in my view by the ruling of ORG , which binds us , upholding the reasoning of ORG that an individual ’s monetary loss , in the sense of loss of future livelihood , unless based on loss of some professional or business goodwill or other present legal entitlement , can not constitute a possession attracting the protection of LAW . ”

Notwithstanding his conclusion that there was no possession in the applicant ’s case , the judge went on to consider whether , if inclusion on the performers list had been a possession , the actions of the PCT would have deprived him of it . On this matter , he found :

“ If inclusion in a performers list is , contrary to my view , an LAW , it would follow that suspension from it under LAW Lists Regulations is an interference with that ‘ LOC . But ... the Judge did not reason the matter in that way ... [ PERSON recognised the need to examine the impact of suspension on PERSON practice , and concluded that there was such interference because his inclusion in the list had ‘ a present value apart from the right to future income’ in that the amount of his remuneration was affected by his patient numbers and suspension might well affect the economic value to him of his practice . However , there was no evidence before the Judge to support such finding of interference , in particular , no effective loss of remuneration or of actual or prospective loss of patients , since he continued to receive PERCENT of his ORG remuneration by reference to his patient list , pursuant to regulation CARDINAL(CARDINAL ) of ORG ... and his practice was preserved by the PCT arranging and paying for his patients to be seen by a locum ...

I should add that there is nothing in the further point ... that interference could be established in the GPE ’s cessation of payment , following PERSON suspension , ... of notional rent for the use of his LOC ... During the period of his suspension Dr PERSON ’s practice continued to provide services to patients on his list , but did so , as I have said , through a locum engaged by the PCT to perform those services . Because of the unsatisfactory condition of PERSON surgery LOC , the PCT was obliged to refer his ORG patients to a locum at another nearby practice . However , his premises were still available for his use , for example , for the purpose of seeing private patients . More importantly , such notional rent as he might have continued to receive but for the suspension would not have constituted a possession for the purpose . ”

On the question whether goodwill could constitute a “ possession ” in the present case , Lord Justice PERSON noted :

“ The distinction between marketable goodwill , or at any rate that goodwill which it is acknowledged is a vested possession , and what ORG describes as being merely a present - day reflection of anticipated future income , has never had to be determined on the facts ... CARDINAL solution may be ... looking only to marketability . I am not sure of that , however , for CARDINAL reasons : CARDINAL is the substantive distinction drawn by ORG ; the other is the emphasis placed by the GPE jurisprudence on goodwill as a possession in the case of professionals with respect to their clientele . I suspect that such goodwill is not readily marketable : on the other hand , I can conceive that a professional practice can perhaps only or best be thought of as involving a vested possession in terms of the goodwill consisting in its clientele .

In the present case , however , this difficulty does not need resolving , for , as ORG has pointed out ... , regulation CARDINAL of ORG on ORG Regulations DATE ... effectively means that an ORG doctor ’s goodwill has no economic value . As such , I do not see how it can be regarded as an asset or , therefore , a possession for the purposes of [ LAW . It is neither a physical thing ( land or chattels ) nor a right or other chose in action , nor an asset of any kind ... ”

As regards the applicant ’s inclusion in the Performers List , he considered the analogy between inclusion on the list and the grant of a licence to be unhelpful . He continued :

“ ... licences come in all forms . Some licences are valuable assets in their own right .... Other licences are valuable only in the sense that they give value or greater value to some other asset . In such a case , the jurisprudence considered above , such as PERSON GPE itself in the case of a liquor licence , shows that the possessions in question which need to be considered are the underlying assets , not the licence . So also in GPE , which in its way is the closest authority to the facts of the instant case , it was not the affiliation to GPE ’s social security system which was regarded as the possession with which there had been interference by reason of its withdrawal , but the doctor ’s ‘ vested interests’ in his practice which had had to be closed down ... ”

He considered that in the applicant ’s case , inclusion on the list was not a licence in itself but a condition precedent to a doctor being able to perform services himself in the ORG . Once on the list , a doctor was qualified to obtain a contract to provide medical services himself . If he was subsequently suspended from the list , he did not thereby lose his contract but lost only his ability to provide services under it by his own personal performance . He noted :

“ So in PERSON case , his suspension from the performers list did not prevent his contract continuing , only his personal performance as a sole practitioner under it . Even so , because his contract remained in force , the PCT continued to pay him his ORG remuneration , subject only to a PERCENT deduction to take account of expenses that he would otherwise have incurred . ... PERSON patients continued to receive medical services through a locum for whom the PCT paid . He continued to be entitled to practise as a doctor privately , from his surgery .

... It seems to me that inclusion on the performers list is a matter of regulation , a condition or qualification for performing ORG services , rather than a possession or property right in itself ... [ O]ne can not readily speak of the inclusion on the list as an economic interest . It is not an asset . It has no monetary value . If CARDINAL was looking for a possession in this context , one would look naturally to the ORG contract , but that remained on foot , and is not the subject matter of PERSON ... claim ... ”

The judge considered whether there was some other possession which the applicant could rely upon , and concluded :

“ ... For reasons discussed above , it is not possible for PERSON to show that his practice had any asset in the nature of goodwill separate from his anticipation of future income under his ORG contract . Reference to his patient list ... is in CARDINAL sense somewhat more to the point , because at least it can be said that the numbers on his list had a direct bearing , as I understand the matter , on his ORG remuneration , since that had to be recalculated DATE in accordance with those numbers . However , even so , his patient list remained in place , continued to earn him remuneration under his contract , and even if those numbers fell somewhat during the period of his suspension , as to which there was no evidence before the judge and no findings , that seems to me to be simply a matter relating to future income rather than an interference with vested rights in possession . The judge said that inclusion on the list had ‘ an intrinsic value’ in that it enabled the doctor to practise and he went on immediately to explain that because the amount of remuneration would be affected by patient numbers , ‘ suspension may well affect the economic value of his practice’ ... Although the judge then said that that reflected a present value apart from the right to future income , it seems to me that it plainly did not . The only way to measure any loss is by reference to future income . ”

On the question whether , had there been a possession , there would have been an interference , he said :

“ There has been no separate ground of appeal in relation to the separate question of whether , assuming that a relevant possession had been involved , there had been an interference with it ... It seems to me that it is strongly arguable that , if a relevant possession had been involved , then there would only have been an interference for the purposes of [ LAW if there had been material economic consequences : see PERSON , GPE , and PERSON above . It is not as though any case of deprivation has been made . But it has not been found that there were any material economic consequences . As stated above , the purpose of the regulations was to ensure that during a period of temporary suspension the financial consequences for the doctor concerned were intended to be neutral ; and there were mechanisms in place to resolve any disputes in that context . ”

Finally , on the question whether there was a “ possession ” in the present case , Lord Justice PERSON noted :

“ My concern , and , I suspect , that of the judge , for any unjustified damage to the doctor ’s reputation ... brings me to an essential issue relating to goodwill , which has arisen in the instant appeal . This court has had to grapple with the need to maintain a clear and workable distinction between goodwill which is a possession within the meaning of [ LAW , and a right to future income , which is not .

ORG which is marketable is undoubtedly a possession , notwithstanding that its DATE value reflects a capacity to earn profits in the future . But does goodwill have to be marketable in order to be identified as a possession within the meaning of [ LAW Goodwill is composed of a variety of elements , which differs in different businesses and professions ... ”

He considered that reputation was undoubtedly an element of goodwill , although it was not marketable . However , he concluded

“ ... I agree , on the basis of the reasoning of PERSON ... and of ORG ... that that element of goodwill ... which is founded on the doctor ’s reputation , is not a possession within [ the meaning of LAW . It can not be sold , it has no economic value other than being that which a professional man may exploit in order to earn or increase his earnings for the future . If the principle that the ability to earn future income is not a possession within [ the meaning of LAW is to be maintained , it must follow that if the element of goodwill which has or may be damaged is reputation , or the loyalty of past clients , that element is not to be identified as a possession . In ORG terms , the doctor ’s complaint is as to an unjustified loss of reputation , caused by unlawful acts . But , in economic terms , that is no more than a complaint of a risk of loss of future income . It is not possible to distinguish his claim that his goodwill has been damaged from a claim to loss of future income . ”

The applicant subsequently sought permission to appeal to ORG . Consideration of his petition for leave was deferred pending the outcome of an appeal in ORG , a case also concerning the applicability of LAW No . CARDINAL , in which the applicant was given leave to intervene in writing . On DATE , ORG handed down its judgment in ORG ( DATE ORG CARDINAL ) . In the course of the judgment , Lord PERSON of PERSON noted :

“ GPE jurisprudence has drawn a distinction between goodwill which may be a possession for purposes of article CARDINAL of the first protocol and future income , not yet earned and to which no enforceable claim exists , which may not ... The distinction was less clearly applied in GPE v GPE ( DATE ) CARDINAL DR CARDINAL where a doctor ’s vested interest in his medical practice was regarded as a possession , PERSON v GPE ( DATE ) CARDINAL EHRR CARDINAL where an accountant ’s clientele was held to be an asset and hence a possession , and PERSON , above , at CD CARDINAL , where the same rule was applied to law practices : in these cases no finding was made that the assets were saleable , although this may have been assumed . In R ( PERSON ) v ORG ... ORG held that the inclusion of PERSON name on a list of those qualified to work locally for the ORG was in effect a licence to render services to the public and , being non - transferable and non - marketable , not a possession for purposes of LAW . While I do not find the jurisprudence on this subject very clear , I consider that ORG reached a correct conclusion in that case ... ”

On DATE , the applicant ’s petition for leave to appeal was refused .

The applicant never returned to practice as a result of his health problems , which he attributed to his unlawful suspension .

Proceedings by ORG ( “ ORG ” ) were commenced against the applicant . However , no formal decision was ever taken by the ORG as the applicant subsequently voluntarily resigned on grounds of his ill - health .

At the relevant time , the position was governed by ORG DATE ( “ the DATE LAW ) . Pursuant to section CARDINALX(CARDINAL ) of the DATE Act :

“ Regulations may provide that a health care professional of a prescribed description may not perform any primary medical service for which a Primary Care Trust or ORG is responsible unless he is included in a list maintained under the regulations by a ORG . ”

Under section CARDINAL(CARDINAL ) of ORG Health Care Professions Act DATE , general practitioners were health care professionals for the purposes of the CARDINAL Act .

The relevant regulations were set out in ORG Performers Lists ) Regulations DATE ( “ the Performers List Regulations ” ) . LAW imposed a duty on PCTs to prepare and publish a medical performers list . LAW provided that a medical practitioner could not perform any primary medical services unless his name was included on a medical performers list . Regulation CARDINAL(CARDINAL ) provided that a PCT was required to refuse to admit a medical practitioner to its medical performers list if he was included in the medical performers list of another PCT , unless he had given notice to that PCT that he wished to withdraw from that list .

Once on a list , a general practitioner could enter into a contract to provide services for ORG . ORG ( ORG Regulations DATE ( “ the Contracts Regulations ” ) set out in detail the nature of such contracts . Paragraph CARDINAL of Schedule CARDINAL to LAW provided that :

“ ... no medical practitioner shall perform medical services under the contract unless he is–

( a ) included in a medical performers list for a Primary Care Trust in GPE ;

( b ) not suspended from that list or from ORG ; and

( c ) not subject to interim suspension under section CARDINALA of LAW DATE ( interim orders ) . ”

Under LAW , an individual could be suspended or removed from the list . LAW provided for the power to suspend :

“ ( CARDINAL ) If a Primary Care Trust is satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest , it may suspend a performer from its performers list , in accordance with the provisions of this regulation–

( a ) while it decides whether or not to exercise its powers to remove him ... or contingently remove him ... ;

( b ) while it waits for a decision affecting him of ... a licensing or regulatory body ;

Regulation CARDINAL(CARDINAL ) stipulated that the PCT had to specify a period , not exceeding DATE , as the period of suspension . This initial period could subsequently be extended , pursuant to regulation CARDINAL ) , provided that the aggregate period of suspension did not exceed DATE . Regulation CARDINAL(CARDINAL ) provided that the period of suspension could extend beyond DATE in limited circumstances which were not relevant to the present case .

Regulation CARDINAL(CARDINAL ) explained that the effect of a suspension was that , while a performer was suspended , he was to be treated as not being included in the Performers List , even though his name appeared in it .

DATE . Regulation CARDINAL(CARDINAL ) allowed the PCT to revoke the suspension at any time and notify the performer of its decision .

Regulation DATE ) set out the applicable procedure to be followed by the PCT prior to suspending an individual from the Performers List :

“ Where a Primary Care Trust is considering suspending a performer or varying the period of suspension under this regulation , it shall give him–

( a ) notice of any allegation against him ;

( b ) notice of what action it is considering and on what grounds ; and

( c ) the opportunity to put his case at an oral hearing before it , on DATE , provided that TIME notice of the hearing is given . ”

Regulation CARDINAL(CARDINAL ) clarified that if the performer did not wish to have an oral hearing or did not attend the oral hearing , the PCT could suspend him with immediate effect . Pursuant to regulation ORG ) , if an oral hearing did take place , the PCT had to take into account any representations made before it reached its decision . Regulation CARDINAL ) and ( CARDINAL ) provided that the PCT could suspend the performer with immediate effect following the hearing and that it had to notify the performer of its decision and the reasons for it ( including any facts relied upon ) within DATE of making that decision .

Regulation CARDINAL of LAW prohibited a practitioner who was suspended from a list under regulation CARDINAL(CARDINAL)(a ) from withdrawing from a list without the consent of the Secretary of ORG until the question of his removal or contingent removal has been decided . Thus suspension had the effect of preventing the practitioner from engaging in ORG practice so long as the suspension continued .

As to payments during suspension , regulation CARDINAL(CARDINAL ) of LAW provided :

“ During a period of suspension payments may be made to or in respect of the performer in accordance with a determination by the Secretary of ORG . ”

The general rule was to pay MONEY of the practitioner ’s net income under his contract with the PCT . The deduction of MONEY was to reflect the fact that a practising practitioner would have incidental expenses connected to his practice which would be met from his income .

A right to a review and to appeal of the determination was permitted under regulation CARDINAL(CARDINAL ) and ( CARDINAL ) :

( CARDINAL ) If a performer is dissatisfied with a decision of a Primary Care Trust ( ‘ the original decision’)–

( a ) to refuse to make a payment to or in respect of him pursuant to a determination under paragraph ( CARDINAL ) ;

( b ) to make a payment to or in respect of him pursuant to a determination under paragraph ( CARDINAL ) , but at a lower level than the level to which he considers to be correct ;

he may ask the Primary Care Trust to review the original decision and , if he does so , it shall reconsider that decision , and once it has done so , it must notify the performer in writing of the decision that is the outcome of its reconsideration of its original decision ( ‘ the reconsidered GPE ) and give him notice of the reasons for its reconsidered decision .

( CARDINAL ) If the performer remains dissatisfied ( whether on the same or different grounds ) , he may appeal to the Secretary of ORG by giving him a notice of appeal within DATE beginning on DATE that ORG notified him of the reconsidered decision . ”

Regulation CARDINAL(CARDINAL ) to CARDINAL ) set out the procedure for an appeal to the Secretary of ORG .

DATE . General practitioners are regulated by the ORG , which maintains a register of those individuals who are considered fit to practise as doctors . A doctor can be suspended from the register by decision of the ORG on grounds , for example , of misconduct .

Subsequent to the facts of the present case , LAW DATE was amended to introduce a requirement that doctors have a licence to practice which is conferred and may be withdrawn by the ORG .

Since the creation of ORG in DATE , practitioners have been prevented from selling the goodwill of their medical practices . That rule is currently set out in LAW of ORG on ORG Regulations DATE , which provides that a person with whom a PCT has entered into a general medical services contract may not sell the goodwill of his medical practice in any circumstances and that no other person may sell that goodwill in his stead .