CASE OF KAY AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 8;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

Background facts

The GPE of GPE ( “ LOC ” ) owned a number of properties which were unsuitable for normal housing use . The properties formed part of the “ short life ” property of GPE , meaning that they were scheduled for demolition , redevelopment or works . Following aggressive squatting , which exacerbated the poor condition of the properties , and an increase in responsibilities on local housing authorities to provide shelter for homeless people , PERSON began to consider a scheme under which housing associations would take over short life property and find and manage tenants until the property was required by GPE for demolition or redevelopment . In around DATE , PERSON began informally licensing short life property to the GPE and ORG ( “ LQHT ” ) , a charitable housing trust , in order that the latter could provide temporary accommodation for homeless people to whom GPE owed a statutory duty to arrange accommodation . However , some of the short life property could not be made suitable for use by homeless families and so , in a separate arrangement in DATE , PERSON began to pass properties to LQHT and other bodies to use as housing for those to whom no statutory duty was owed and who would not generally be allocated housing by GPE . This was called the “ singles scheme ” . The applicants were all provided with housing under the singles scheme .

Until DATE , LQHT had an informal arrangement with GPE which covered the properties occupied by the applicants . This arrangement was replaced by a licence in DATE , reflecting the previous arrangement and terminable on DATE notice . In DATE , the licence arrangement was replaced by individual DATE leases of each property granted to LOC GPE . The leases were subject to a break clause allowing either party to terminate the leases early on DATE notice . CARDINAL purpose of the grant of the individual head leases was to allow LQHT to replace its licences to the applicants with assured shorthold tenancies , which would prevent them from acquiring security of tenure under LAW DATE ( “ the DATE LAW ) . In fact , few of the applicants agreed to enter into assured shorthold tenancies with LQHT .

In DATE , GPE gave notice to terminate the head leases to LQHT . In DATE , ORG advised the applicants that the head leases had been terminated .

Domestic proceedings

In DATE , GPE brought summary possession proceedings against PERSON , PERSON , PERSON , Mr Cole and Mr PERSON ( “ the PERSON proceedings ” ) . They defended the proceedings on the basis that they were secure tenants of GPE . In DATE , Mr PERSON brought an action against GPE for a declaration making the same claim . PERSON sought an order for possession by way of counterclaim in Mr PERSON 's proceedings .

The applicants argued that they were tenants of LOC and had secure tenancies under Part IV of the CARDINAL Act . They argued in the alternative that an order for possession against them would breach their right to respect for their homes under LAW PERSON argued that it was not bound by tenancies created by FAC and applied to strike out the applicants ' LAW grounds that it showed no reasonable ground for defending the claim .

On DATE , the judge ruled that the applicants were not tenants of GPE and therefore had no security of tenure under Part PERSON of LAW DATE . On DATE , following the DATE decision of ORG in GPE of GPE v. PERSON [ DATE ] ORG CARDINAL and on the basis of the majority view in that judgment , the judge struck out the applicants ' alternative defence based on DATE without considering whether the specific personal circumstances arising in each of the applicants ' cases rendered LOC 's decision to seek possession disproportionate . The applicants appealed .

NORP In the meantime , possession orders were made in respect of Mr PERSON , PERSON and Mr PERSON on DATE . The proceedings against them were stayed by agreement pending the outcome of the PERSON proceedings .

The appeal against the CARDINAL rulings in the PERSON proceedings was dismissed by ORG on DATE . ORG concluded ( at paragraph CARDINAL ) :

“ The fact is that GPE has an unqualified right to possession . And on the basis of the majority opinions in PERSON by which we are bound , that is a sufficient answer to the claim under LAW . ”

NORP However , he noted that a defence on public law grounds was possible , indicating ( at CARDINAL and CARDINAL ) as follows :

“ However ... [ CARDINAL decision to bring possession proceedings was an administrative decision to which the ordinary principles of administrative law apply . Accordingly it can be challenged by judicial review and perhaps by way of defence in proceedings such as the present .

But that does not mean that , by the backdoor , LAW comes back into play as a ' relevant consideration ' . Initially , as in all decisions related to housing , the particular needs of a tenant and his family will form a necessary background to the decision a housing authority has to take . And they will therefore form part of the considerations which the housing authority has to evaluate . But those considerations fall to be evaluated on ordinary administrative law principles . In the present case , no material has been put before the court to suggest that the decision was unlawful or unreasonable in the ORG sense ... ”

ORG granted leave to appeal on DATE . ORG intervened in the case in support of the applicants ' LAW argument . On DATE , ORG sitting as a committee of CARDINAL judges dismissed the appeal ( see further “ Relevant domestic law and practice ” , below ) .

On DATE , the county court made possession orders against each of the applicants .

By section CARDINAL of LAW DATE , a secure tenant of a local authority or other public authority has security of tenure . Under section GPE ) of the LAW , a court shall not make an order for possession of a dwelling house let under a secure tenancy except on CARDINAL or more of the grounds set out in Schedule CARDINAL to the Act . Section CARDINAL(CARDINAL ) provides that :

“ The court shall not make an order for possession—

( a ) on the grounds set out in Part I of that Schedule ( grounds CARDINAL to CARDINAL) , unless it considers it reasonable to make the order ,

( b ) on the grounds set out in Part II of that Schedule ( grounds CARDINAL to CARDINAL ) , unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect ,

( c ) on the grounds set out in Part III of that Schedule ( grounds CARDINAL ) , unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect . ”

ORG judgment in PERSON is described in detail in the ORG 's judgment in ORG v. the GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE . In that case , ORG found that the property continued to be Mr PERSON 's home notwithstanding the fact that the tenancy had come to an end and so Article CARDINAL was engaged . However , the majority ( Lords Hope of PERSON , PERSON and ORG ) held that a local authority 's proprietary or contractual right to possession could not be defeated by a defence based on LAW . The dissenting minority ( ORG of PERSON and PERSON ) considered that where there was a proposed interference with a person 's right to respect for his home , the question of justification , if raised , did fall to be considered and should , in the instant case , be remitted to the county court .

In the applicants ' case of PERSON v. ORG ; Price v. ORG [ DATE ] ORG CARDINAL , ORG revisited PERSON following the ORG 's judgments in ORG v. GPE , no . GPE , CARDINAL DATE and GPE v. GPE , no . CARDINAL , DATE ( the latter judgment was subsequently referred to ORG which found , on DATE , that since the case fell outside the ORG 's temporal jurisdiction , it was unable to take cognisance of the merits of the case ) .

NORP The majority ( Lords Hope , ORG and ORG and ORG ) held that the judgment in ORG was not incompatible with the view of the majority in PERSON and that a defence in possession proceedings which did not challenge the law under which the possession order was sought but was based only on the occupier 's personal circumstances should be struck out . At paragraph CARDINAL , Lord Hope set out the test to be applied :

“ ... Subject to what I say below , I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with the article CARDINAL but is based only on the occupier 's personal circumstances should be struck out ... Where domestic law provides for personal circumstances to be taken into account , as in a case where the statutory test is whether it would be reasonable to make a possession order , then a fair opportunity must be given for the arguments in favour of the occupier to be presented . But if the requirements of the law have been established and the right to recover possession is unqualified , the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these : ( a ) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article CARDINAL [ “ gateway ( a ) ” ] , the county court in the exercise of its jurisdiction under LAW DATE should deal with the argument in CARDINAL or other of CARDINAL ways : ( i ) by giving effect to the law , so far as it is possible for it do so under LAW , in a way that is compatible with article CARDINAL , or ( ii ) by adjourning the proceedings to enable the compatibility issue to be dealt with in ORG ; ( b ) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable [ “ gateway ( b ) ” ] , he should be permitted to do this provided again that the point is seriously arguable ... ”

Discussing the implications of the ORG 's judgment in ORG on the decision of ORG in PERSON , he later added ( at paragraphs CARDINAL and CARDINAL ) :

“ There may , however , be cases like ORG where the incompatibility with the article LAW right lies in primary legislation which the county court is being asked to apply to the case by the public authority ... In such a case it would be open to ORG to make a declaration of incompatibility , if it was not possible to read or give effect to the legislation under LAW DATE in a way which was compatible with the Convention right . But the legislation would nevertheless still have to be enforced , unless the decision of the public authority to seek to enforce it when faced with that incompatibility could be said , when judicially reviewed , to be arbitrary , unreasonable or disproportionate . The decision could not be held in the county court to be an unlawful act within the meaning of section CARDINAL of the CARDINAL Act : see section CARDINAL ) . The fact that the question of incompatibility that was raised in PERSON was not capable , under the domestic system , of being dealt with effectively in the county court because of the limits on its jurisdiction reinforces , rather than detracts from , the proposition that a defence which is raised in that court under article CARDINAL should be struck out unless the legislation can be read and given effect in a way that is compatible or it raises an issue as to its incompatibility that ought to be considered in ORG .

The appellants ' right to continue in occupation of LOC over which they never had any rights granted to them by the landowner was brought to an end by the operation of law when PERSON gave notice terminating the leases to LQHT . They have no right to remain there indefinitely , which would be the effect of denying to LOC its unqualified right to possession of the LOC on the ground that to give effect to this right would be incompatible with article CARDINAL . Their interests will be sufficiently protected by the fulfilment of the formal requirements for the eviction , which demand proof by the public authority landowner of its entitlement to obtain an order for possession in the exercise of its property rights . I would dismiss this appeal . ”

Lord PERSON , also for the majority , expressed the following view ( at paragraphs CARDINAL and CARDINAL to CARDINAL ) :

“ As to ' procedural safeguards ' , each of the [ appellants ] filed a pleading setting out the basis on which his LAW defence , as well as his domestic law defence , was based . The article CARDINAL defences were given due judicial consideration but were struck out as being incapable of constituting a defence to GPE 's possession claim . Whatever ' procedural safeguards ' are requisite , they can not bar a court from ruling in a particular case that the pleaded facts and matters relied on are not capable of outweighing in the balance the contractual and/or proprietary right to possession of the owner of the property in question . If the home occupier thinks the judge 's ruling to be in error , the ruling can ... be reviewed on appeal , or on an application for permission to appeal .

... The possession orders sought by GPE engage the article CARDINAL right to respect for the home of the respective occupiers from whom possession was sought . But an order for possession was in accordance with domestic law . As against LOC the occupiers had become trespassers with no right to remain in occupation . There was nothing discriminatory or unusual about the statutory and common law framework that produced that result nor about the absence of any statutory protection given to the occupiers by the housing legislation . I respectfully agree with my noble and learned friend Lord PERSON of PERSON 's remarks in para CARDINAL of his opinion that the balance required by article CARDINAL(CARDINAL ) to be struck was struck by the general law , that the public authority owner had a right to manage and control its property within the bounds set by statute , that the occupier acquired only a limited right to occupy and that on due determination of that right , a claim by the owner must ordinarily succeed . The appellants ... could not resist PERSON 's possession applications on LAW grounds unless either they mounted an article CARDINAL attack on the legal framework that entitled GPE to possession or they attacked on LAW grounds LOC 's decision to seek possession . The first attack was not attempted , and , if it had been , would in my opinion have been bound to fail . There is nothing the matter , from an article CARDINAL standpoint , with a common law rule which gives the owner of property , which is occupied as a home by a person who has no right as against the owner to remain there , the right to recover possession of the property . ORG 's omission to provide any statutory security of tenure for home occupiers in the position in which the [ appellants ] found themselves is well within the wide margin of appreciation referred to in Blecic .

As to the decision of LOC to seek possession of the properties occupied by the [ appellants ] , I agree with and adopt the conclusion expressed by Lord PERSON in para CARDINAL of his opinion . No facts have been pleaded or alleged by the appellants which outweigh the right and the duty of GPE to manage its housing stock . The wide margin of appreciation referred to in GPE must be accorded to GPE .

The article CARDINAL defences were struck out by Judge PERSON . They were in my opinion rightly struck out . If a defendant does not plead or allege sufficient facts which , if made good , could constitute a defence , the defence can be struck out . On the facts pleaded and alleged in the article CARDINAL defences the defences could not have succeeded .

Nor , in my opinion , where a home occupier has no contractual or proprietary right to remain in possession as against the owner of the property , could an article CARDINAL defence based on no more than the personal circumstances of the occupier and his family ever succeed . ORG is no authority to the contrary . The successful article CARDINAL defence in ORG was founded on a combination of Mr ORG inability to enjoy the security of tenure advantages afforded by statute to occupiers of privately owned caravan sites and on the GPE court 's perception ( which I think was an unjustified perception ) of a lack of sufficient procedural safeguards enabling him to dispute the grounds which had led the council to terminate his site licence . ”

Baroness PERSON agreed with the majority , noting ( at paragraphs CARDINAL to CARDINAL ) :

“ ... as I understand it , some of your Lordships would go further and accept that there may be highly exceptional cases in which the occupier could argue that his individual personal circumstances made the application of the general law disproportionate in his case . When , if at all , should the court be able to say that , even though there is no obligation to continue to provide housing in these circumstances , it is not ' necessary in a NORP society ' to permit the landowner to assert its property rights ?

My ORG , I myself do not think that the purpose of article CARDINAL was to oblige a social landlord to continue to supply housing to a person who has no right in domestic law to continue to be supplied with that housing , assuming that the general balance struck by domestic law was not amenable to attack and that the authority 's decision to invoke that law was not open to judicial review on conventional grounds . It should not be forgotten that in an appropriate case , the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide : see eg R v ORG and ORG , ORG , GPE and GPE ( DATE ) CARDINAL Admin LR CARDINAL , R ( PERSON and others ) v ORG [ DATE ] FAC ( Admin ) . ”

She concluded ( at paragraph CARDINAL ) :

“ Each of the cases before us is a classic example of CARDINAL in which a defence based upon article CARDINAL would have no real prospect of success ... In the LOC cases , the occupiers had undoubtedly established homes in the dwellings but they had done so on terms which made them vulnerable , like many sub - tenants , to the superior claims of the landowner . PERSON 's attempts to evict them were in accordance with the law and in pursuit of the legitimate aim of regaining control over this short life housing stock . All the [ appellants ] were offered alternative accommodation . It would take a very different case from that pleaded to give their claims to remain in the particular dwellings occupied a real prospect of success . ”

Lord PERSON of PERSON - under - Heywood ( at paragraph CARDINAL ) was of the following view :

“ For my part I would accept that the recent GPE jurisprudence requires some qualification to be placed on the PERSON principle ; I can not , however , agree that it requires , as the minority in PERSON suggested , the consideration ( even if usually only the most cursory consideration ) of an article CARDINAL defence every time it is raised . My opinion is rather , and at this stage I state it very broadly , that although article CARDINAL is clearly engaged in every home repossession case , its requirements are satisfied provided only and always , first , that the substantive domestic law under which the order is sought strikes an acceptable balance between the competing needs and rights at stake and , secondly , that that law is properly applied by the domestic court with the occupier being given a fair opportunity to invoke any defence available to him under it . If either of those CARDINAL conditions is not satisfied then , I accept , a complaint would properly sound under article CARDINAL . But , as I shall seek to show , it by no means follows that article CARDINAL provides the occupier in such cases with a freestanding defence independent of whatever rights he may have under domestic law . ”

He concluded ( at paragraphs CARDINAL to CARDINAL and CARDINAL ) :

“ Of course , where the domestic law requires the court to make a judgment ( most notably perhaps in those cases ... where repossession can only be ordered if the court considers it reasonable ) , or to exercise a discretion , the judge will bear in mind that he is performing this task in the context of the defendant 's article CARDINAL right to respect for his home . But where under domestic law the owner 's right to possession is plainly made out ... , the judge in my opinion has no option but to assume that our domestic law properly strikes the necessary balances between competing interests ( as envisaged in paras CARDINAL and CARDINAL of my noble and learned friend Lord PERSON 's judgment ) and that in applying it properly he is accordingly discharging his duty under section CARDINAL of LAW DATE ... Where no statutory protection is afforded to occupiers that should be assumed to be ORG 's will : sometimes that will be clearly evident from the terms of the governing legislation ... ; even , however , where the owner 's rights arise at common law , the absence of statutory protection must surely be , as my noble and learned friend Lord Hope suggests , the result of a deliberate decision by ORG to leave the owner 's right to recover possession in these cases unqualified . As Lord PERSON observes at para DATE , it is not unrealistic to regard the general law as striking the required balance .

CARDINAL of the difficulties I have with the appellants ' contended for application of article CARDINAL in these cases is in understanding what sort of ' highly exceptional circumstances ' ( Lord PERSON 's expression at paras CARDINAL and DATE ) could possibly entitle the county court judge to disregard a clear provision of domestic law so as to deprive the owner ... of his apparently clear entitlement to possession ; another is in understanding what are supposed to be the parties ' respective rights and interests in the LOC once the judge has felt obliged under article CARDINAL to set aside the dictates of domestic law .

I too , therefore , would dismiss both these appeals but I would do so for a reason more fundamental than that suggested by certain others of your Lordships . These appellants ' defences must fail , not because they disclose no sufficient ( highly exceptional ) personal merit but because they depend upon establishing a freestanding LAW right to remain in possession incompatible with the respective claimants ' clear entitlement to possession under domestic property law . I would hold that no such freestanding right exists . ”

As to the availability of a defence based on conventional judicial review grounds , Lord PERSON added ( at CARDINAL to CARDINAL and CARDINAL ) :

“ There is , however , a quite different basis upon which an occupier could challenge a public authority 's claim for possession , namely on the conventional public law ground that the decision to bring the claim was itself so unreasonable as to be unlawful . Such a defence can clearly be advanced in the county court ...

The difficulty with such a defence , however , is that it would be well nigh impossible to make good , the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession . Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right . This would be a more stringent test than would apply were the court , as the appellants assert , under a primary duty to reach its own judgment on the justifiability of making a possession order .

It is difficult to suppose , however , that a defence based on a public law challenge of this character to a public authority 's decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as ORG itself . Manifestly it could not have succeeded in either of the present cases which doubtless explains why defences of this particular character were not advanced . ”

The minority ( Lords GPE of PERSON , PERSON of GPE and ORG ) considered that occupiers should be able to plead Article CARDINAL as a defence in possession proceedings , although such a defence would only be successful in highly exceptional cases . Lord GPE ( at paragraph DATE ) described the minority approach as follows :

“ The practical position , in future , in possession proceedings can be briefly summarised as follows . ( CARDINAL ) It is not necessary for a local authority to plead or prove in every case that domestic law complies with LAW Courts should proceed on the assumption that domestic law strikes a fair balance and is compatible with LAW . ( CARDINAL ) If the court , following its usual procedures , is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that , highly exceptionally , he has a seriously arguable case on CARDINAL of CARDINAL grounds . ( CARDINAL ) The CARDINAL grounds are : ( a ) that the law which requires the court to make a possession order despite the occupier 's personal circumstances is Convention - incompatible ; and ( b ) that , having regard to the occupier 's personal circumstances , the local authority 's exercise of its power to seek a possession order is an unlawful act within the meaning of section CARDINAL . ( CARDINAL ) Deciding whether the defendant has a seriously arguable case on CARDINAL or both of these grounds will not call for a fullblown trial . This question should be decided summarily , on the basis of an affidavit or of the defendant 's defence , suitably particularised , or in whatever other summary way the court considers appropriate . The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question . ( CARDINAL ) If the court considers the defence sought to be raised on CARDINAL or both of these grounds is not seriously arguable the court should proceed to make a possession order . ( CARDINAL ) Where a seriously arguable issue on CARDINAL of these grounds is raised , the court should itself decide this issue , subject to this : where an issue arises on the application of section CARDINAL [ of LAW DATE ] the judge should consider whether it may be appropriate to refer the proceedings to the High Court ” .

As for the disposal of the appeal , however , he considered that on the facts of the present case the matter need not be remitted to the county court , concluding ( at paragraph CARDINAL ) :

“ The question then arises whether these cases should , even after this lapse of time , be remitted to the county court for consideration whether eviction is necessary in a NORP society , as that expression has been defined in the GPE jurisprudence . I would favour that course if there appeared any reasonable prospect of the court deciding that it was not necessary . But it is clear that under domestic property law the appellants have no right to occupy their respective LOC , of which the local authority has an unqualified right to possession . The appellants fall outside the categories to which ORG has extended a measure of protection . The local authority has no duty to accommodate the appellants , but has a power and duty to manage its housing stock . The appellants have not pleaded or alleged facts which give them a special claim to remain . I am satisfied that if these cases were remitted , possession orders would necessarily be made ... ”

In DATE , ORG handed down its decision in PERSON v. ORG [ DATE ] ORG CARDINAL shortly after the ORG 's judgment in ORG v. the GPE , no . CARDINAL , CARDINAL DATE . The ORG affirmed PERSON and sought to clarify the position set out in that judgment , in light of the ORG 's decision in GPE . Lord PERSON ( at paragraphs CARDINAL to DATE and DATE ) provided , in particular , the following clarifications of the “ gateways ” available for defendants to challenge possession orders , as explained in PERSON :

“ As I said earlier , the speeches in PERSON show that the route indicated by [ gateway ( b ) ] is limited to what is conveniently described as conventional judicial review . In para CARDINAL , for example , Lord PERSON indicated that he had in mind a challenge in accordance with ORG [ DATE ] ORG CARDINAL on grounds which , he said , had nothing to do with LAW DATE . In para CARDINAL Lord PERSON too acknowledged that this was a quite different basis from that which the LAW provides upon which a public authority 's claim for possession could be challenged . In para CARDINAL of my own speech I described this as a challenge that would be made at common law , on the ground that the decision was one that no reasonable person would consider justifiable . In para CARDINAL I said that the grounds on which the decision to claim possession could be judicially reviewed were whether it was arbitrary , unreasonable or disproportionate .

ORG ( b ) then asserts that in possession cases brought by a public authority a defence which takes the form of a challenge to its decision to seek possession may be available . The court is not bound to make the order if the decision to seek it can be challenged on the ground that it was an improper exercise of the respondent 's powers . In this respect the CARDINAL routes , or ' gateways ' , may be said to work together to address the incompatibility due to the lack of a procedural safeguard , which is the fundamental point that is at issue in this case . FAC ( a ) addresses the question whether the court can read and give effect to the statutes in a way that is compatible with article CARDINAL . If it can not do this , it will be open to the defendant by way of a defence to argue under gateway ( b ) that the order should not be made unless the court is satisfied , upon reviewing the respondent 's decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised , that the decision to do this was in the ORG sense not unreasonable . This route offers a procedural protection under the common law . If taken , it will enable the grounds on which the respondent based its decision to be scrutinised . It might , on the facts of this case , provide the appellant with an effective defence to the making of the possession order . The fact that it is available as a defence seems to me to strengthen the argument , should it be needed , that it also provides him with the protection which he seeks against an infringement of his Convention right .

I think that in this situation it would be unduly formalistic to confine the review strictly to traditional ORG grounds . The considerations that can be brought into account in this case are wider . An examination of the question whether the respondent 's decision was reasonable , having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site , would be appropriate . But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority . In my opinion the test of reasonableness should be , as I said in para CARDINAL of PERSON , whether the decision to recover possession was one which no reasonable person would consider justifiable ” .

Clarifying the difference between the minority and minority approaches in PERSON , he said ( at paragraph CARDINAL ) :

“ As I said in para CARDINAL of my opinion in PERSON , and again at the outset of para CARDINAL , a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances of the occupier should be struck out . The personal interests safeguarded by article CARDINAL must be taken to have been sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by the statute or by the common law . That is the basic law that was established in PERSON and it is the point on which the majority in PERSON differed from the minority : see ground ( CARDINAL)(b ) in para CARDINAL of Lord PERSON 's opinion . ”

Lord PERSON also considered the minority view in PERSON , as set out by Lord PERSON , and compared it to Lord Hope 's test in PERSON , concluding ( at paragraph CARDINAL ) that :

“ ... The only proposition which is in any respect inconsistent with the majority opinions is proposition CARDINAL(b ) and the inconsistency there is slight though important . Proposition CARDINAL(a ) covers the same ground as Lord PERSON 's paragraph CARDINAL gateway ( a ) . But proposition CARDINAL(b ) attributes to the occupier 's personal circumstances a central importance that the majority opinions did not accept . The view of the majority , as expressed by Lord Hope in his gateway ( b ) , was , as I have explained , that a local authority 's decision to recover possession would be open to challenge on public law grounds and that the challenge could be raised as a defence in the possession proceedings . The personal circumstances of the defendant might well be a factor to which , along with the other factors relevant to its decision , a responsible and reasonable local authority would need to have regard . The question for the court would be whether the local authority 's decision to recover possession of the property in question was so unreasonable and disproportionate as to be unlawful . ”

He disagreed with a passage in the decision of ORG in the case under consideration , noting ( at paragraph CARDINAL ) that :

“ ... the sentence ' Under gateway ( b ) the council 's action was open to challenge on conventional judicial review grounds , but not on the grounds that it was contrary to LAW suggests a disharmony between ' conventional judicial review grounds ' on the one hand and LAW other hand that I do not accept . ”

In an addendum prepared following the release of the ORG 's judgment in GPE , Lord PERSON emphasised ( at DATE ) that :

“ ... Local authorities , being public authorities , are obliged by section DATE ) of LAW DATE to act in accordance with the Convention rights incorporated by the LAW into domestic law . They are obliged when deciding to terminate tenancies and recover possession of residential properties to act consistently with article CARDINAL . If a decision , for example to serve a notice to quit , is inconsistent with the article CARDINAL rights of the person on whom it is served the decision would be unlawful and the notice to quit devoid of effect . Lord PERSON 's paragraph CARDINAL establishes that a point of that sort can be raised as a defence to the possession proceedings . Such a defence would , if raised , be dealt with by a county court judge as part of the possession proceedings ...

... An article CARDINAL defence requires the judge to review the lawfulness of the local authority ' 's decision could be shown to be outside the range of reasonable decisions that a responsible local authority could take , having regard both to the circumstances of the defendant as well as to all the other relevant circumstances , the decision would be held to be unlawful as a matter of public law . But in a case in which it is not reasonably arguable on the face of the pleadings , or from the contents of the affidavits that have been filed , that that is so , the judge can be expected to make a summary order for possession . The adjective ' summary ' in this context does not mean that the judge would not have considered the proportionality of the requested possession order . It means that the article CARDINAL case put forward by the defendant for a conclusion that a possession order would be disproportionate is not , in the opinion of the judge , capable of being sustained by serious argument . The notion that a defence based on an article CARDINAL right to respect for a home requires the case to proceed to a full trial even though it is apparent that the defence can not succeed is clearly absurd . An application for a summary judgment does require the defendant 's contention that a possession order would be disproportionate to be given proper attention and , if reasonably arguable , to be permitted to proceed to a full trial . ”

Lords Walker and PERSON both drew attention to the fact that the majority in PERSON had drawn an important distinction between human rights and traditional judicial review challenges . Lord PERSON noted ( at paragraphs CARDINAL to CARDINAL ) that :

“ ... As CARDINAL of the minority in PERSON , I must accept the decision of the majority , which distinguishes between grounds of judicial review which are based on the ORG [ LAW ] and grounds ( ' common law ' or ' conventional ' grounds ) which are not based on the ORG . The minority accepted the view of Lord PERSON of GPE ... that article CARDINAL might , highly exceptionally , provide a tenant or licensee with additional protection . Lord Hope , in the leading speech for the majority , disagreed ( para CARDINAL ) . So did Lord PERSON ( para CARDINAL ) , ORG ( paras CARDINAL - CARDINAL ) and ( most emphatically ) PERSON ( paras CARDINAL ) .

... I think that I may properly express unease and indeed incomprehension at the suggestion , which is at least implicit in this part of the decision , that ORG grounds and traditional judicial review grounds can always be separately identified . ”

Lord PERSON observed ( at CARDINAL ) that :

“ ... ORG ( b ) , as expressed in paragraph CARDINAL in PERSON was , as I see it , phrased so as to exclude any direct application of the Convention rights or of ORG test of proportionality , and to confine attention to common law grounds for judicial review , informed though they may increasingly be by ideas of fundamental rights : see also per ORG of GPE at paragraph CARDINAL and Lord PERSON of ORG - under - Heywood at paragraphs CARDINAL - CARDINAL , and contrast the approach of the minority as set out in paragraph CARDINAL of Lord GPE of PERSON 's speech in PERSON .

The general distinction which thus emerges is recognised and described in R ( PERSON ) v. Secretary of ORG for ORG [ DATE ] ORG CARDINAL ... per Lord PERSON ( para . CARDINAL ) and Lord PERSON of ORG ( para . CARDINAL , recognising though regretting the distinction ) and in R ( ORG ) v. Secretary of ORG [ DATE ] EWCA Civ CARDINAL ... paragraphs CARDINAL to DATE , where ORG , giving the judgment of ORG , said that any abandonment of the common law 's ORG unreasonableness test for a proportionality test was a step which could only be taken by this ORG . Other potential differences between conventional ( or ' domestic ' ) judicial review were discussed in R ( ORG ) v. Governors of ORG [ DATE ] ORG CARDINAL ... ( see in particular per Lord PERSON at para . DATE ) and ORG v. Miss ORG [ DATE ] UKHL CARDINAL ...

The difference in approach between the grounds of conventional or domestic judicial review and review for compatibility with Human Rights Convention rights should not however be exaggerated and can be seen to have narrowed , with ' the “ ORG ” test ... moving closer to proportionality [ so that ] in some cases it is not possible to see any daylight between the CARDINAL tests ' ( ORG , para . CARDINAL , citing an extra - judicial lecture by Lord PERSON ) ... Even so , as the subsequent history of ex p . PERSON demonstrates , the result may not always achieve the degree of protection for Convention rights which ORG requires : PERSON and PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL . So there remains room in another case to reconsider how far conventional or domestic judicial review and Convention review can be further assimilated , and in particular whether proportionality has a role in conventional judicial review . This was not , however , argued on the present appeal , and , in common I understand with the majority of your Lordships , I do not consider that it is appropriate to embark on such a review on this appeal .

On this basis , in circumstances such as those in PERSON , the only question under gateway ( b ) as expressed in PERSON is whether the public authority 's decision can be challenged on domestic judicial review grounds , in particular as having been based on material misconceptions or improper considerations or as unreasonable , either in the PERSON sense or in a more relaxed sense which takes full account of the basic interest which any occupant has in his or her home . In other words , in circumstances such as those in PERSON , a full Convention review is not , at least nominally , possible on the majority view taken in PERSON . ”

Lord PERSON concluded ( at paragraphs CARDINAL to CARDINAL ) :

“ However , I for my part regret that it has not been possible on this appeal to agree to modify gateway ( b ) in paragraph CARDINAL more generally , so as to allow express regard to be had to Human Rights Convention principles in relation to any defence raised against a public authority under the rule in ORG v. ORG , whether in circumstances such as those in PERSON , ORG , PERSON and PERSON or in circumstances such as the present . In DATE of his speech my noble and learned friend Lord Hope mentions the need to take account of any judgment of ORG and to give practical recognition to the principles that it lays down , and states that this can be done in the present circumstances by to some extent modifying the reasoning of the majority in PERSON . At the same time , he rejects the suggestion that the ORG should depart from the majority view in PERSON in favour of the minority , believing that this would create very real practical problems : paragraphs CARDINAL .

For my part , I am not persuaded that any significant problems would or need arise , as Convention - compliant statutory schemes are developed and public authorities become accustomed to tailoring their performance of their duties to Convention values . In a large number of cases , ORG already tackle sensitive issues of reasonableness , as well as issues regarding breach of conditions of occupancy , when deciding whether to make or suspend possession orders ; The limited modification that my noble and learned friend Lord Hope would make to gateway ( b ) of paragraph CARDINAL ( see paragraph CARDINAL ) would add to such cases a further category in which review on traditional ORG grounds was relaxed to become a more straightforward examination of reasonableness . If ORG can handle such issues in possession claims , there is no reason to doubt their ability to tackle , robustly and with due despatch , the largely parallel issues which would arise from any direct application of the Convention principles in cases of challenges to public authority decisions to seek possession . ”

ORG has recently considered the application of the gateway ( b ) defence in CARDINAL cases : PERSON v ORG [ DATE ] EWCA Civ CARDINAL ; PERSON v. ORG [ DATE ] EWCA Civ CARDINAL ; and ORG v. PERSON and others [ DATE ] EWCA Civ CARDINAL . In PERSON , considering the effect of the ruling in PERSON , Lord Justice PERSON stated ( at DATE ) :

“ First , there is no formulaic or formalistic restriction of the factors which may be relied upon by the licensee in support of an argument that the council 's decision to serve a notice to quit , and seek a possession order , was one which no reasonable council would have taken . Such factors are not automatically irrelevant simply because they may include the licensee 's personal circumstances , such as length of time of occupation . In PERSON , where the family had been in occupation for a substantial time without causing any trouble , but the council wanted to use the site in a different way , it might also be thought relevant whether the council had taken any steps to offer the family , or help them to acquire , alternative accommodation .

Secondly , the question whether the council 's decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law , and not through the lens of the Convention .

Having said that the question whether the council 's decision was unreasonable has to be decided by applying public law principles as they have been developed at common law , it is to be remembered that those principles are not frozen . Even before the enactment of the ORG , our public law principles were being influenced by Convention ways of thinking . Since its enactment , the process has gathered momentum . It is now a well recognised fact that the ORG is influencing the shape and development of our domestic public law principles , whether one uses the metaphors of embedding , weaving into the fabric , osmosis or alignment . ( See the judgment of Lord PERSON in PERSON at para CARDINAL ) . ”

ORG in PERSON v. ORG reiterated ORG interpretation of ORG .

Subsequently , in ORG v. PERSON , Lord Justice PERSON noted , at paragraphs CARDINAL , as follows :

“ But it is important to keep in mind that in PERSON the court was concerned with a traveller and his eviction from a caravan site ; the circumstances were thus similar to those being considered in PERSON but are far removed from the circumstances of the instant cases , which are very close to those which existed in PERSON . I emphasise that point because although it can be said that PERSON encourages the view that the personal circumstances of PERSON may not be irrelevant in considering a local authority 's decision to serve a notice to quit , it will be necessary to go back to PERSON and consider PERSON 's impact on PERSON where the circumstances are as in PERSON and as they are in the instant cases . PERSON would however suggest that in conducting a review of the council 's decision PERSON has held that something wider than the ORG rationality test was appropriate . In PERSON ( it is right to say ) despite similarities with the circumstances in PERSON , unlike ORG in PERSON , the court of appeal found that there was no purpose in remitting the matter because it was not arguable that the council acting reasonably could have come to any different decision .

In PERSON the court was concerned with the termination of a tenancy by a local authority on the grounds of anti - social behaviour . The court held it was ' an unusual case ' and that PERSON had a seriously arguable public law defence based on it being arguable ( i ) that a reasonable council would after service of the notice to quit have made further investigations as to whether there was further anti - social behaviour and ( ii ) that there had been a failure by the local authority to make those further investigations . The circumstances of PERSON are far removed from the instant cases . ”

He continued ( at paragraph CARDINAL ) :

“ CARDINAL things are not in dispute which I emphasise at the outset . The decision of a public authority can be made the subject of judicial review and in the context of possession claims in the county court , the correct forum for that review , if an arguable point is raised , is the county court itself . Second even if in PERSON intended gateway ( b ) to be confined to what I might term a ' rationality ' challenge , in his speech in PERSON intended to extend to some extent the scope of judicial review beyond rationality even if not as far as a straightforward challenge by reference to the convention . ”

PERSON set out the position as follows ( at paragraphs CARDINAL to CARDINAL ) :

“ An authority such as the council in the instant appeals may make a decision on the facts as known to it to send a letter seeking possession . Prima facie it has no obligation to find out what the true facts are and the burden is going to be on the occupier to demonstrate any grounds relied on as providing an LAW . If the occupier informs the public authority of relevant circumstances , the public authority will have to take a further decision as to whether to commence proceedings . If no letter is received and the facts are only divulged just prior to the hearing , the public authority in reality has to take a further decision as to whether to proceed . Indeed if the revelation is only during the hearing , the council in deciding to continue to press for an order takes yet a further decision . I do not see why if any one of these decisions could be shown to be ' unreasonable ' whatever that means ( and I will come back to that ) , it could not be attacked .

If that is an appropriate analysis , because the county court is seized of the matter , it will be able to see whether there is an arguable case that in deciding even with the revelation of further facts to continue to seek possession is unreasonable . If ' reasonableness ' connotes something wider than rationality , that will be very close in reality to the court itself examining a defence based on LAW . ”

He concluded ( at CARDINAL ) :

“ The law gives an owner of land the right to obtain possession against a trespasser . But the owner , if the occupier has his home on the land in question , can not obtain possession other than through proceedings in court . The court has to satisfy itself as to the owner 's rights but can in making an order for possession pay regard to the personal circumstances of the occupier . Statute circumscribes the court 's powers in certain cases ... and in others does not do so . In cases such as the present and PERSON , the court simply has a discretion whether to suspend the order for possession for a short period .

It follows that I would accept that the question whether a decision of a public authority is ' reasonable ' post - Doherty goes beyond the question whether it is rational . I would also accept that a public authority should take account of the personal circumstances of the occupier known to it , but it does not follow from this that there will ever be circumstances in which it will be unreasonable to seek possession against trespassers in situations similar to those in PERSON . Those situations may make it unreasonable not to allow a period of time to bring the possession order sought into effect but that is something which the court oversees and which the law allows for .

Ought we to remit in this case ? In my view it would , just as in PERSON , not be appropriate to do so . To echo the words of Lord PERSON in PERSON , it is clear that under domestic property law the appellants have no right to occupy their respective premises , of which the council has an unqualified right of possession . The appellants fall outside the categories to which ORG has provided protection . The council has no duty to accommodate the appellants and has a duty to manage its assets . The appellants have put in a draft pleading before us , but it does not allege any facts which provide some special claim to remain . If the matter were remitted the court would be bound to make an order for possession , although it would be entitled to take account of the personal circumstances in considering the time at which the order would be effective . That latter is something we could do without remission . ”

In Associated Provincial Picture Houses v Wednesbury Corporation [ DATE ] CARDINAL KB CARDINAL , Greene MR noted as follows :

“ It is true the discretion must be exercised reasonably . Now what does that mean ? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ' unreasonable ' in a rather comprehensive sense . It has frequently been used and is frequently used as a general description of the things that must not be done . For instance , a person entrusted with a discretion must , so to speak , direct himself properly in law . He must call his own attention to the matters which he is bound to consider . He must exclude from his consideration matters which are irrelevant to what he has to consider . If he does not obey those rules , he may truly be said , and often is said , to be acting ' unreasonably ' . Similarly , there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority .

... the task of the court is not to decide what it thinks is reasonable , but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority , acting within the CARDINAL corners of their jurisdiction , could have decided to impose ...

... The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account , or , conversely , have refused to take into account or neglected to take into account matters which they ought to take into account . Once that question is answered in favour of the local authority , it may be still possible to say that , although the local authority have kept within the CARDINAL corners of the matters which they ought to consider , they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it . In such a case , again , I think the court can interfere . The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority , but as a judicial authority which is concerned , and concerned only , to see whether the local authority have contravened the law by acting in excess of the powers which ORG has confided in them . ”


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in PERSON . He was represented by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

The applicant was a farmer operating a strawberry farm .

On DATE ORG ( NORP ) inspected the applicant ’s farm and came across QUANTITY persons presumed to be NORP nationals who were working there .

Subsequently , on DATE , ORG laid a criminal information against the applicant for illegal employment of foreigners under LAW ( GPE ) .

On DATE ORG fined the applicant ORG CARDINAL,CARDINAL ( i.e. approximately LAW ) , with imprisonment in default , for illegal employment of CARDINAL foreigners on his farm .

The applicant filed an appeal against this decision with ORG ( ORG ) on DATE and asked for an oral hearing to be held .

On DATE the ORG summoned the applicant to a hearing , scheduled for DATE .

On DATE the applicant ’s counsel asked for that hearing to be adjourned until DATE , as the applicant was absent from GPE . Therefore , on DATE , the applicant was summoned again to appear on DATE .

On DATE the applicant again filed a request for adjournment of the hearing . He submitted that injuries he had suffered in an accident would leave him incapable to stand trial .

On DATE the Bregenz ORG granted the applicant ’s request , on condition that he submit a medical statement giving information on his state of health and his ability to follow the hearing .

The applicant presented an abridged medical report indicating his injuries on DATE .

On DATE the ORG scheduled a hearing for DATE .

Subsequently , on DATE , the applicant again filed a request for adjournment of the proceedings sine die .

On DATE an oral hearing was held , at which the applicant ’s counsel was present .

On DATE the ORG acquitted the applicant in respect of CARDINAL of the foreigners , while upholding the decision as regards the other CARDINAL .

The applicant lodged a complaint with ORG on DATE and requested that suspensive effect be granted to his complaint . Moreover he asked for the hearing to be suspended until he had recovered from his injuries .

On DATE ORG refused to grant his complaint suspensive effect as the execution of the ORG ’s decision would not impose a disproportionate loss on the applicant .

On DATE ORG refused to deal with the applicant ’s complaint as it lacked prospects of success . On DATE , at the applicant ’s request , it transferred the case to ORG .

On DATE the applicant submitted further observations to ORG and requested an oral hearing . In addition he again filed a request for suspensive effect .

On DATE the PERSON submitted it ’s observations on the applicant ’s complaint .

On DATE ORG quashed the ORG ’s decision and remitted the case back to the ORG . It found that the ORG should have verified the applicant ’s capacity to attend an oral hearing .

Subsequently , on DATE , the applicant filed further observations on the case .

On DATE the ORG held an oral hearing . In the presence of the applicant ’s counsel it took evidence from one of the labour officials who had conducted the on - site inspection on DATE .

On DATE the ORG summoned the applicant to another hearing scheduled for DATE . It explicitly asked the applicant if he wanted to be questioned . In addition it asked him to disclose the address of CARDINAL of the labourers , PERSON , in order to have him summoned to the planned hearing .

On DATE the applicant requested that the hearing be adjourned as his counsel was retained by other business .

On DATE he again commented on the proceedings , submitting inter alia that it was for the prosecuting authority to investigate PERSON ’s whereabouts .

On DATE the ORG held a further hearing in which it summoned another labour official and CARDINAL of the labourers . Although represented by counsel , the applicant himself did not appear before the ORG .

On DATE the ORG partly granted the applicant ’s appeal and , explicitly referring to LAW , held that the proceedings had exceeded a reasonable time . It took this fact into account as a mitigating circumstance and reduced the fine to MONEY less than the lowest generally applicable fine . The fine was therefore reduced by CARDINAL to ORG CARDINAL for each count . Moreover , the ORG held that PERSON could not be summoned , because he had left GPE and it had no current address at which he could be contacted . The applicant failed to provide the name and address of the other witness and did not give any reasons for the request .

On DATE the applicant , alleging inter alia violations of Articles CARDINAL and CARDINAL of the Convention and of LAW , filed a complaint to ORG . Furthermore he requested that his complaint be granted suspensive effect .

On DATE he filed a further complaint to ORG , in which he repeated his arguments concerning an alleged violation of LAW .

On DATE ORG rejected his request for granting suspensive effect .

On DATE ORG , relying on Article CARDINALa of LAW , declined to deal with the case since the aggregate amount of the CARDINAL penalties did not exceed ORG and no significant legal problem was at stake .

By decision of CARDINAL DATE ORG declined to deal with the case as it lacked prospects of success . The decision was served on the applicant ’s counsel on DATE .


Violation of Art. 8;Not necessary to examine Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

The applicant is a NORP national who was born in DATE and lives in GPE , GPE . He has worked inter alia as a kindergarten assistant for DATE .

The applicant has CARDINAL sons L. and A. ( born respectively on DATE and DATE ) with PERSON , a NORP national , with whom he entered into a relationship in CARDINAL/CARDINAL and cohabited from DATE until DATE . In DATE ( before A. was born ) the applicant and PERSON reached an agreement whereby he had certain access rights to L.

NORP Since DATE he has cohabited with PERSON and her adolescent son .

A dispute arose as to the applicant 's access to PERSON On DATE reported him to the police for allegedly having sexually abused PERSON She based her allegations on statements made by PERSON mother gave statements to the police and PERSON was interviewed by a judge without anything significant emerging in the case . In DATE ORG discontinued the investigation , which decision ORG confirmed on appeal in DATE .

In DATE the applicant brought judicial proceedings before ORG ( byrett ) , claiming a right of access to his CARDINAL sons ( sections DATE and CARDINAL of LAW DATE ) . On DATE ORG refused a request by PERSON to have an expert witness appointed .

By a judgment of DATE ORG granted the applicant access DATE and for CARDINAL of the holiday periods and devised a plan for stepping up access . To give the above immediate effect , ORG issued an interlocutory order .

In reaching the above conclusions , ORG rejected the accusations made by the boys ' mother that the applicant had sexually abused PERSON It observed that according to PERSON there were CARDINAL occasions on which the applicant had been on his own with his son , namely in that they had been in a room with the door shut in PERSON 's apartment . In her view it was most probable that the abuse had occurred on these occasions , though she did not have concrete evidence to this effect . ORG found it excluded on the evidence before it that the applicant had sexually abused PERSON It attached decisive weight to the fact that the applicant 's access to his son had taken place each time under the supervision of CARDINAL other person and that on the CARDINAL occasions on which he and the son had been on their own in the latter 's room , it was for a very short time and in a situation where the child 's mother could have entered the room at any moment . The visits in question took place DATE for a small child - before DATE when the son had made the statements that aroused the mother 's suspicions that the applicant had sexually abused L. Finally , ORG had regard to the fact that the physiological and psychiatric examinations carried out did not support the allegation that abuse had occurred . It found that the allegation had been the result of manipulation and fabrication by the mother as part of a strategy to obstruct the applicant 's access . There was reason to assume that this had already had damaging effects on PERSON , who had stated that he did not wish to live or to be with his father . The boy had become a go - between in a conflict between adults . ORG stated that the applicant was more suitable than the mother to assume the DATE care .

On DATE PERSON 's lawyer lodged a disciplinary complaint against the judge who had heard the case before ORG for having acted with prejudice against his client in expressing distrust and treating her with disrespect during her testimony . The judge was imposed a mild reprimand by ORG , which found that there were grounds for criticising his conduct of the proceedings .

PERSON appealed against ORG judgment and interlocutory injunction to ORG ( lagmannsrett ) , requesting in the main that the applicant be refused a right of access to the children . She referred inter alia to the fact that the court appointed expert considered that GPE 's strong negative attitude to his father was consistent with abuse having taken place . The applicant , denying that any abuse had occurred , requested ORG to reject her appeal .

By a judgment of DATE , ORG overturned ORG judgment and refused the applicant access to his CARDINAL sons , inter alia after obtaining an expert report from a court appointed psychologist , dated DATE , and hearing evidence from the latter . It also had regard to a report of DATE by a psychologist who had been counselling the boy at the mother 's initiative and the psychologist 's oral evidence to the court .

The High Court noted that from the psychologist 's report of DATE it emerged that the boy had felt great anxiety about the idea of meeting his father ( he would kill himself rather than see his father ) ; PERSON was unable to describe the reasons but his statements seemed founded on actual experience . Any access should be established gradually . Forcing the boy to have contact would be psychologically damaging .

The High Court observed that the applicant and L. met CARDINAL times in DATE , CARDINAL times in DATE , CARDINAL times in DATE and that no access had taken place during DATE ( since DATE ) . It did not consider that the mother had sabotaged access although it understood that the fact that access had to take place under supervision by her sister or her father had made it difficult for the applicant to exercise access .

The High Court 's judgment included the following reasoning :

“ CARDINAL arguments have been made against the father being granted a right of access .

Firstly , it is argued that the father has subjected [ L. ] to sexual assault . There is a complaint to the police dated DATE from which it appears that an investigation of the case was initiated . The mother made statements to the police on DATE and DATE , and there was also an interview of [ L. ] by a judge without anything of significance for the case coming to light . According to information presented , the case was dropped by the public prosecutor . This decision was appealed to ORG on DATE but the public prosecutor 's decision was not reversed . The fact that there was insufficient evidence in the criminal case is , however , not decisive in this case , see ORG ( [ PERSON ( ORG Reports)]-CARDINAL - CARDINAL . It is further assumed that in a case involving minor children , no risk whatsoever may be taken in such circumstances , also concerning the issue of access rights , see Rt – DATE - CARDINAL . In view of the information available in the case , where quite detailed descriptions have been provided of the abuse , together with [ L. ] 's strong objections to seeing his father , ORG finds that there are many elements that may indicate that abuse has occurred . ORG has nevertheless not found it necessary for its decision to go further into or take a stance on this .

Secondly , it is contended that the implementation of access rights vis - à - vis the father is impossible in view of the fact that [ L. ] is opposed to this . In light of the information available , the High Court assumes that [ L. ] is opposed to having access to his father , which is to be accorded weight pursuant to section CARDINAL of LAW . Nevertheless , the implementation of access may not , in principle , be made dependent on the child not being opposed to being with his father . This question will depend on the concrete circumstances .

According to the report , the boy is unable to describe why he has such great anxiety about meeting his father . [ Psychologist O. ] considers the information he has obtained to be an expression of the boy 's actual experiences . The report further states that if contact between the father and the boy is to be established , this must take place gradually over a longer period of time and in such a manner that [ the child welfare services ] can constantly monitor how this develops . If [ L. ] 's strong anxiety is maintained , forced contact is at present deemed to constitute a psychological assault on the boy , according to the report . [ Psychologist O. ] has given testimony before ORG , which in its essentials concords with the aforementioned report . According to [ Psychologist O. ] , [ L. ] has stated that he would not visit his father even in the presence of CARDINAL party , his mother or someone else .

In his report , the expert states inter alia the following :

' On the whole [ L. ] has a good level of functioning , though everything having to do with his father is an obviously vulnerable and difficult point for him . My own impression from an interview with [ L. ] accords well with what [ Psychologist O. ] has described . [ L. ] indicates with his entire being both in the interview and afterwards that this is a very uncomfortable and difficult topic . '

The expert evaluated CARDINAL alternative resolutions for the access issue . The first alternative is an ordinary access arrangement between the father and the boys . The expert concluded that it is both impossible and indefensible to go straight to such an arrangement . He refers to the fact that [ L. ] 's aversion and emotional reactions to contact with his father are so strong that such an arrangement could not be started without strong physical coercive measures . Furthermore , he refers to the fact that [ L. ] has made serious threats about what he would do , namely take his own life . The expert also pointed to the strain this would inflict on [ L. ] and that this may jeopardise his further development . This would , in addition , inflict substantial strains on the mother . As the second alternative the expert considered a limited access arrangement , with supervision , possibly with the aim of increasing it to ordinary access . The expert pointed out that such a process may involve relatively high human ( and financial ) costs and that it would be a stressful process for [ L. ] and the rest of the family . Furthermore , it was noted that the outcome may be uncertain , since neither the mother nor [ L. ] will , at the outset , be very motivated to attaining concrete results in the form of contact with the father . The expert concluded that this is a possibility , but that it would require support by both parties and having sufficient resources in and around the family at their disposal . He also pointed out that the chances of failing abysmally would be present . The third alternative considered is no access at all between the father and the boys . To justify such a solution , the expert referred to the necessity of safeguarding the good progress the boys are making and of sparing them , especially [ L. ] , from further uncertainty and conflicts connected with the issue of access .

The expert did not reach any unambiguous conclusion in his report , except from finding that an ordinary access arrangement appears to be quite impossible to implement . As far as the other alternatives are concerned , he has kept the options more open . In his testimony before the court and after having been present during the appeal hearing , the expert expressed the view that he strongly favours that there should be no access between the father and the boys . In addition to [ L. ] 's clearly expressed unwillingness to have access to his father , the expert referred to the difficult situation that the family and [ L. ] in particular have been in over DATE . He further referred to the fact that the mother was the sole provider for the children , and that she and the family had reached their ' limit of tolerance ' . It is also the understanding of ORG that the expert deems the costs of a supervised arrangement to be too high and the benefits to be too uncertain for the expert to have been able to recommend access under supervision as an alternative .

ORG agrees that an ordinary access arrangement would not be an acceptable alternative , but has evaluated in particular whether an arrangement with supervised access would be possible . Like the expert , ORG has concluded that such an arrangement would be disproportionately demanding and that it presumably may be difficult to find persons with the necessary competence who are willing to subject themselves to such a time consuming process as is in question here . ORG also agrees with the expert that the strain that such a process will necessarily inflict on the family must also be considered , especially since the mother has sole care of the children . On the basis of its impressions during the hearing , ORG agrees with the expert that the ' tolerance limit ' for whatever additional strains that can be inflicted appears to have been reached . Even if neither the [ Psychologist O. ] nor the expert appears to have been able to clarify the reasons for [ L. ] 's strong objections to the decision . In view of this , there would in the view of ORG be an not unappreciable risk that the boy 's development may be directly jeopardised by having to go through such a process that is under discussion here . In addition , considerable flexibility would be required of both parties , which , on the basis of ORG impressions from the hearing , is uncertain , on the part of the mother , but especially on the part of the father .

Despite the fact that ... , a refusal to grant access may be justified only in very special circumstances , ORG has concluded that there should be no access in this case since , on the basis of an overall assessment , this would not be in the best interest of the children . Even though the issue of access is at the outset to be considered separately with regard to each of the boys and even though it is assumed that [ A. ] does not have the same antagonistic relationship to his father as [ L. ] , the High Court finds no reason to grant access with regard to [ A. ] as well . As ORG understands the expert , it would cause unpleasant tensions within the family if CARDINAL of the children were to have access and that such an arrangement was not advisable , something with which ORG agrees . Given the strains that the family has been DATE , in ORG view , it is now important that peace prevails in this matter .

Having reached this conclusion , ORG does not find it necessary to establish a provisional arrangement in respect of the access issue . ”

The High Court Judgment contained the following unanimous conclusion regarding the substantive questions :

“ [ The applicant ] is not granted a right of access to [ L. ] , born on * , * , DATE , and [ A. ] , born on * , * , DATE . “

The applicant appealed against ORG judgment as a whole , asking primarily that it be quashed and in the alternative that he be granted a right of access to his children . He challenged ORG procedure , namely its omission to deal with the interim order by ORG .

He moreover appealed against ORG assessment of the evidence , notably its reasoning regarding the allegations on sexual abuse , including the following passage , which in his view was “ curious ” .

“ In view of the information available in the case , where quite detailed descriptions have been provided of the abuse , together with [ L. 's ] strong objections to seeing his father , the High Court finds that there are many elements that may indicate that abuse has occurred . ORG has nevertheless not found it necessary for its decision to go further into or take a stance on this . ”

The applicant submitted that in the light of the evidence it was hard to understand ORG conclusion on sexual abuse , even more so when it was stated in the judgment that it “ has not found it necessary for its decision to go further into or take a stance on this ” . In the applicant 's view , this was obviously an error ; should a judge find that there were many elements to indicate that sexual abuse had occurred , it was evident that this conviction would also have an effect on a decision regarding access for the parent found to be a probable abuser . The applicant further disputed the lawfulness of ORG rejection of any access rights , which decision could not be reconciled with the rule that the best interests of the child should prevail . In the applicant 's view , GPE 's horror picture of his father should be removed by arranging for access . This was a clear case of the so - called Parental Alienation Syndrome , with clear hatred , fear and anxiety , unlike the ambivalence shown by children who have been exposed to actual abuse .

On DATE , ORG of ORG refused the applicant leave to appeal .

The applicant has submitted a medical certificate dated DATE by PERSON , which stated :

“ I the undersigned have known [ the applicant ] since DATE .

He has had a very tough time psychologically during the period since the judgment . He feels that he has been unjustifiably held liable of sexual abuse against his son and feels powerless in the system . He has been very depressed lately . He is struggling with problems of sleeplessness , bad appetite and loss of weight . He is isolating himself . At times he has had suicidal thoughts . This has adversely affected his family life and members of his family have had a particularly difficult time during DATE . ”

The applicant has moreover filed a statement by PERSON , GPE , of DATE , which concludes :

“ It is highly probable that [ the applicant ] has developed symptoms that are compatible with ORG after what he had experienced in GPE . This has been further fortified by a situation combining anxiety and depression in the form of an adaptation disturbance as a result of his fight to get access to his children , especially when the court deprived him of his right of access .

He presents a relatively high level of pressure from suffering but which he nevertheless manages to master satisfactorily . He receives regular treatment by a psychologist and medical treatment . ”

At the time of the national courts ' consideration of the present case , the right of access between a parent and a child was governed by sections DATE and CARDINAL of LAW DATE ( Lov om barn og foreldre ( barnelova ) ) .

Under section CARDINAL the child had a right of access to both parents , even if they lived apart , and the parents had mutual responsibility for implementing the right of access . Under section CARDINALA the parent with whom the child did not live had a right of access to the child unless otherwise agreed or determined . The provision contained more detailed rules on the extent of access , its implementation and the procedure . It provided that decisions should first and foremost be based on what was best for the child .

Provisions governing the contents of judgments in civil proceedings may be found in LAW of the DATE ORG ( tvistemålsloven ) . In so far as relevant Article CARDINAL provides :

“ A judgment shall contain :

A brief presentation of the object of the case and of the parties ' submissions ; when appropriate , reference may be made to written pleadings filed in the case , or to entries in the court record ; if so , the material referred to shall be included in transcripts of the judgment ;

Reasoning for the decision ; they shall decisively and exhaustively indicate the facts of the case on which the court bases its decision

An operative part .


CASE OF SOTIRIS AND NIKOS KOUTRAS ATTEE v. GREECE

Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings

On DATE the applicant company applied to ORG under the provisions of PERSON no . DATE for a subsidy to build a hotel . That statute provided that companies satisfying certain conditions were entitled to a ORG subsidy for their investments .

The applicant company 's request was rejected in a decision of CARDINAL DATE .

On DATE the applicant company lodged an application with ORG for judicial review of the above - mentioned decision . Its lawyer delivered the application by hand to QUANTITY police officers at GPE police station no . CARDINAL . The police officers affixed the police station 's seal to the first page of the application and wrote the registration number and date on it . They did not , however , note the registration number on the record of deposit stamped onto the application itself .

On DATE ORG ruled the application inadmissible on the following grounds :

“ Article QUANTITY § CARDINAL and CARDINAL of Presidential Decree no . CARDINAL provide that in order for an application for judicial review to be validly lodged with a public authority , it must be registered in the said authority 's register and stamped with a record of deposit . This record must mention the registration number and the date and must be signed by the official receiving the application and by the applicant ... There can be no substitute formalities for compliance with that procedure , to which the applicant himself is a party , because it is a legal requirement for the valid registration of an application . Accordingly , if an application lodged with a public authority other than ORG is incorrectly stamped , this will affect the validity of the application .

In the present case the notice of application was lodged with GPE police station no . CARDINAL and stamped with a record of deposit which was signed by the lawyer depositing the application , the QUANTITY police officers receiving it and the senior officer at the station . However , this stamp did not bear a registration number . Admittedly , the registration number and date of deposit are indicated both on the seal next to the stamp and the first page of the application , but they do not appear on the stamp recording the deposit of the application itself and are signed neither by the lawyer who lodged the application nor by the police officers who took delivery of it . Accordingly , they do not satisfy the statutory conditions of admissibility of applications . ”

That judgment was finalised ( καθαρογραφή ) on DATE and the applicant company obtained a copy on DATE .


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

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

ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .

On DATE the applicant was arrested on suspicion of theft . He was later sentenced to CARDINAL years’ imprisonment for the said offence .

On DATE the applicant was taken to a cell at GPE - Mureş police station , where he was detained for DATE . He alleged that , before , while and after being taken to the police station DATE , he was repeatedly hit by the police officers accompanying him because he was drunk and refused to answer their questions until a lawyer and a prosecutor were present . Consequently , he asked to be taken to the local ORG to be examined by a forensic doctor .

On DATE the applicant was examined by the PERSON - Mureş police detention centre ’s doctor . A medical report produced DATE stated that the applicant had bruises and contusions on his face , a deformed nasal pyramid and had suffered thoracic trauma as a result of aggression . On DATE he was also examined at the Târgu - ORG by a cardiologist , who recorded inter alia in a further medical report of that date that the applicant had suffered cranio - facial injuries .

On CARDINAL DATE the applicant was taken to the Târgu - ORG and was examined by a forensic specialist . A report produced on the same date stated that the applicant ’s face and body bore several bruises and abrasions and that the injuries could have been caused on CARDINAL DATE as a result of direct hitting with or against hard objects . The report also stated that the injuries would require DATE of medical care in order to heal .

On DATE the applicant brought criminal proceedings with civil claims for abusive conduct and unlawful arrest against the CARDINAL police officers who had detained him on DATE , namely ORG and ORG He was assisted by a lawyer during the entire course of the proceedings and argued that the CARDINAL police officers had insulted , threatened and hit him for TIME on CARDINAL May CARDINAL and had forced him to provide them with statements .

By an order of DATE the NORP - ORG discontinued the criminal investigation opened against the CARDINAL police officers on the grounds that no unlawful act had been committed . It found that at TIME on DATE , PERSON had witnessed from the window of his home CARDINAL individuals who were taking things out of the boot of a car . Suspecting that the CARDINAL individuals were thieves , he decided to go out of his house and stop them . He asked PERSON to call the police and proceeded towards the CARDINAL individuals , who started to run away . PERSON pursued them and managed to catch the applicant , who was drunk and kept falling over . Although PERSON tried to hold him up until the police arrived , the applicant kept pushing him away in repeated attempts to escape . The applicant was taken to the police station by officers PERSON and ORG and was left in the company of ORG , who attempted to question him . PERSON returned to the scene of the crime to take statements from the witnesses , PERSON and PERSON According to the police ORG statements , the applicant had refused to answer any questions and denied that he had committed any crime . They also stated that he had threatened the officers , which was confirmed by the witness , PERSON The officers alleged that the applicant had become angry because he had not been allowed to leave and had vigorously smashed his head into the window of the room in which he was detained , but had not managed to break it because it was fitted with metal rods . Consequently , the Târgu - ORG held that the CARDINAL police officers had acted within the scope of their duties prescribed by law and that the applicant ’s injuries , confirmed by the medical forensic report , had been caused by the fight the applicant had had with a third party , namely ORG , and by his own deliberate actions . The applicant appealed against the decision before the hierarchical prosecutor .

By a final order of DATE , the chief prosecutor of the Târgu - ORG dismissed the applicant ’s appeal on the grounds that there was no evidence in the file that the applicant had been hit or insulted by the police officers and that his injuries could have been caused by the third party who had immobilised him . The chief prosecutor held that according to the witness , PERSON , the applicant was drunk and when the witness caught him , he attempted to start a fight , but fell and hit the curb , which made his clothes dirty with dust and mud and his face bleed . The same witness stated that although the police officers forced the applicant to get into the police car , they were not violent . The second witness , PERSON , confirmed that the applicant attempted to escape from PERSON ’s hold several times and that PERSON pinned him to the ground each time . PERSON also confirmed that the applicant ’s face was already bleeding and his clothes were covered in dust and mud prior to the police ORG arrival . Furthermore , the police officers denied having committed an offence and declared that by the time they arrived at the scene , the applicant had been pinned to the ground by PERSON , who informed them that there had been a struggle between him and the applicant . The officers further stated that they had taken the applicant to the police car and asked him to lie down because he was bleeding . They also contended that at the police station the applicant had become angry and smashed his head against a glass window . The applicant appealed against the decision before ORG , arguing that the forensic investigation , which had taken place DATE after the incident , had been superficial because the forensic specialist had not x - rayed his ribs , which had been broken as a result of police aggression .

By a judgment of DATE , ORG dismissed the applicant ’s appeal and upheld the order of ORG . It held that the injuries suffered by the applicant on DATE were undeniable , but that they had been caused as a result of the physical interaction between the applicant and PERSON , and the applicant ’s own deliberate actions . The applicant appealed against the judgment .

In his written submission before the Târgu - Mureş Court of Appeal lodged on DATE , the applicant stated that he had been beaten by the QUANTITY police officers . He argued that he had only been taken to a forensic doctor DATE after the incident and that the forensic investigation had been superficial as the doctor had not x - rayed his ribs . Moreover , he had been ill - treated by the police officers before and after being taken to the police station and his requests for a lawyer and a prosecutor to investigate his case had been ignored . Consequently , in an attempt to stop the ill - treatment to which they were subjecting him , he had jumped and smashed into a window fitted with metal rods .

By a final judgment of DATE the NORP - ORG dismissed the applicant ’s appeal as ill - founded on the grounds that there was no evidence in the file to support the applicant ’s claims that his injuries had been caused by the CARDINAL police officers .

The applicant was transferred to PERSON from DATE to DATE .

On DATE the applicant was examined and treated inter alia for obliterative arteriopathy in his legs ( arteriopatie obliterată a membrelor inferioare ) .

DATE and DATE , the applicant was detained in ORG . A medical report dated DATE showed that he was suffering from pain in his legs , paraesthesia and bad circulation . He also had a weak bilateral arterial pulse . He was treated with anti - inflammatory and anti - platelet drugs , multivitamins , muscle relaxants and beta blockers . By the time he was discharged from the hospital , his condition had improved and it was recommended that he stop smoking and start a special diet . He was also prescribed anti - platelet and antihypertension medicines and treatment with a vasodilator , and advised to consult a cardiovascular specialist .

On DATE the applicant wrote to the Târgu - Mureş Prison authorities requesting examination by a cardiovascular surgeon as recommended by his discharge papers from ORG . He claimed that he was suffering from pain in his legs as a result of his condition , which prevented him from sleeping at TIME . Moreover , he stated that he had asked the prison medical office to assist him with his request , and although the prison doctor had attempted to contact ORG , he had never been taken for the examination . Lastly , he informed the prison authorities that he had decided to go on hunger strike until a specialist doctor had examined him . On DATE the prison doctor recommended that the applicant be taken for an additional medical examination .

On DATE the applicant was examined by a specialist doctor in the NORP - Mureş No . CARDINAL ORG . A medical report produced on the same date recommended that the applicant be subjected to a peripheral vascular GPE test or to an aortography .

On DATE the applicant wrote to the Târgu - Mureş Prison authorities and asked to be hospitalised in a civilian hospital for an aortography , which he claimed could not be carried out in a prison hospital . He argued that his condition was deteriorating and that he needed surgery in order to treat his condition and avoid losing his left leg .

On an unspecified date the Târgu - Mureş Prison doctor recommended that the applicant undergo a neurological examination by DATE and that he be hospitalised in a civilian hospital for a maximum of DATE for an aortography .

On DATE the applicant underwent a neurological examination .

On DATE the NORP - FAC authorities requested that the applicant be hospitalised in the cardiovascular surgery unit of ORG for an aortography . In addition , on DATE they recommended once more that the applicant be transferred to ORG for examination by a specialist .

DATE and DATE the applicant was hospitalised in ORG with a diagnosis of chronic arteriopathy ( arteriopatie cronică oscilantă a membrelor inferioare ) and pain in the left leg .

On DATE the applicant was taken to ORG for a cardiovascular examination . He was diagnosed with stagetwo thrombangeitis obliterans in the left leg and recommended surgery , in particular a sympathectomy , and vasodilator treatment .

On DATE the applicant consented to an operation in ORG . The surgery was performed DATE and was successful .

He spent TIME after the surgery in the intensive care unit of the prison hospital . Afterwards he was transferred to room no . CARDINAL of the surgical ward , which had the necessary medical equipment as well as beds , windows and heating . He received treatment with anticoagulants , antialgic and anti - hypertension medication until DATE . The medical records show that his post - surgery recovery was normal .

On DATE the applicant was transferred to PERSON with the doctor ’s approval . He was prescribed a special diet , rest , monitoring by the prison infirmary for DATE , and the removal of postsurgery stitches .

The applicant claimed that , prior to his transfer from ORG he had spent TIME in a cold room . Moreover , the transfer to PERSON had taken TIME and his wound had started to bleed .

Upon his arrival at LOC , the applicant was examined by the prison doctor and given a bed in room no . CARDINAL of the prison infirmary , which had windows and heating . The doctor prescribed medical treatment for him , checked his post - surgery stitches , and recommended that the stitches be removed .

On DATE the applicant ’s post - surgical wound started to fester and he was prescribed antibiotic treatment .

On DATE the applicant refused to take the antibiotic and anti - hypertension medication provided to him by the prison authorities .

On DATE the applicant ’s dressing was changed . According to his medical chart , he had not ensured the correct hygiene for his post - surgical wound . He refused to allow the stitches to be removed for a further DATE .

On DATE the applicant ’s stitches were removed . The dressing of the wound was changed and the doctor identified a slight festering of the wound and again prescribed treatment with antibiotics .

On DATE the applicant ’s wound had healed and he was discharged from the Târgu - Mureş Prison infirmary . Later on the same date the dressing of his wound was changed . According to the medical records , the applicant had failed to use clean underwear , the wound was producing light serous secretions , but pus was absent .

On DATE and DATE and DATE the applicant was examined by the Târgu - Mureş Prison doctor and the medical records state that his wound had continued to fester . On DATE , as a result of the pain the wound was causing the applicant , the prison doctor recommended that he be transferred to ORG .

On DATE the applicant was hospitalised in ORG and diagnosed with an abscessed granuloma on the surgical scar . He was treated for his condition and discharged from the prison hospital on DATE after his condition had improved .

DATE and CARDINAL DATE the applicant was hospitalised again in ORG because of pain in his legs , in particular cold sensations and paraesthesia . The medical records show that he was treated for his condition and that upon discharge , his surgical wound had healed and his condition had improved . Moreover , he was recommended vasodilator treatment and an examination by a cardiovascular specialist .

On DATE following a complaint made by the applicant to ORG ( “ the ORG ” ) that the prison doctor had failed to undertake all the necessary steps for him to be hospitalised in a cardiovascular unit , the ORG informed the applicant that his medical records showed that he had been monitored and examined for his condition several times by the prison hospitals . The specialist doctors had recommended that he stop smoking and take his prescribed medication . The Târgu - FAC medical office had examined the applicant CARDINAL times and provided him with the medication prescribed by the specialist doctors . Moreover , the ORG argued that the applicant had failed to observe the ORG recommendations to stop smoking and follow the prescribed treatment . Consequently , the ORG concluded that the prison doctor was free to decide the appropriate treatment for the applicant ’s condition and whether further medical examinations were required .

DATE and QUANTITY DATE the applicant was hospitalised several times in civilian hospitals for medical examinations . He was provided treatment for his condition and underwent both a GPE test and an aortography . The discharge papers dated DATE recorded that the applicant was scheduled for surgery on DATE for an iliofemoral bypass .

On DATE the NORP - FAC doctor informed the prison authorities that the applicant ’s medical condition was not connected to the conditions of his detention but rather to his unwillingness to give up smoking . Moreover , he had been provided with medical treatment for his condition and additional medical examinations were scheduled .

On an unspecified date the applicant brought proceedings before the domestic courts seeking his temporary release for DATE on medical grounds .

By a final judgment of DATE the NORP - ORG allowed the applicant ’s action seeking his temporary release from prison . It held that the forensic medical report produced on DATE by the ORG had shown that the applicant ’s condition did not prevent him from serving his prison sentence . However , he needed reconstructive vascular surgery for his legs that could not be performed in a prison hospital .

DATE the applicant was hospitalised in the general surgery unit of the Târgu - ORG and underwent ilio - femoral bypass surgery . His discharge papers stated that he was healed at the time of discharge and it was recommended that he take various medicines , rest , avoid the cold and stop smoking and drinking .

The applicant was temporarily released from prison DATE and DATE .

On DATE the applicant returned to prison after his temporary release on medical grounds , following his ilio - femoral bypass surgery . According to a medical examination carried out on the same date , the applicant had not followed the recommended post - surgery treatment during his temporary release from prison .

DATE the applicant was examined CARDINAL times by the prison doctor and was provided treatment for his medical conditions .

On DATE the applicant was hospitalised in ORG complaining of pain in his legs , in particular cold extremities and paraesthesia . He was provided treatment and discharged after his condition had improved . He was prescribed analgesic and vasodilator treatment , and a surgical examination after DATE .

On DATE the applicant was conditionally released from prison .

The relevant provisions of LAW regarding the remedies available in order to contest ORG decisions are described in PERSON GPE ( no . CARDINAL ) ( no . CARDINAL , § § DATE , DATE ) .

Excerpts from the relevant provisions concerning the rights of detainees and the stay of execution of a sentence of imprisonment , namely Government Ordinance CARDINAL/CARDINAL and LAW , are set out in LOC v. GPE ( no . CARDINAL , § § DATE , DATE ) .