No violation of Art. 8;No violation of Art. 14+8

ORG The applicant is a NORP citizen and a Gypsy . She lives with her CARDINAL children in caravans parked on land owned by her off FAC , GPE , GPE , GPE . She is married but separated from her husband in DATE .

ORG As far back as can be traced , the applicant 's family have been NORP based in GPE . She has lived in caravans all her life and as a child travelled with her parents in this area . She continued this itinerant life until shortly before the birth of her third child in DATE .

ORG In DATE the applicant 's sister and brother - in - law acquired a QUANTITY ( QUANTITY ) site off FAC , GPE , and were granted personal , temporary planning permission for CARDINAL living unit , comprising CARDINAL caravans .

ORG At her sister 's invitation she moved on to this site in DATE when she was expecting her third child , because she had found it hard being constantly on the move with young children . During this period of settled living the CARDINAL eldest children were able to attend a local school , where they integrated well .

ORG On an unspecified date in DATE , the applicant acquired part of her sister 's land ( QUANTITY ) to the rear of the site , furthest away from FAC . She moved her CARDINAL caravans on to this plot .

ORG Her land is now part of a group of CARDINAL adjacent sites which are occupied by NORP . CARDINAL plot has received permanent planning permission for the residential use of CARDINAL caravans . The site occupied by the applicant 's sister enjoyed temporary permission until DATE . The remaining CARDINAL sites have been occupied without planning permission and the occupants have been subject to enforcement proceedings ( see paragraph CARDINAL below ) . The occupants of CARDINAL of those sites have also introduced applications before ORG .

ORG The applicant has stated that she intends to resume her travelling life sometime in the future , and to pass on this tradition to her children . In DATE she travelled with her sister to LOC in GPE because her father - in - law was dying . She was able to park on waste ground for DATE , but had to move on shortly after the funeral .

On DATE the applicant applied retrospectively to ORG for planning permission for the CARDINAL caravans on her site .

She was refused on DATE on the grounds that ( CARDINAL ) adequate provision had been made for Gypsy caravans elsewhere in the GPE area , which had in the ORG 's opinion reached " saturation point " for Gypsy accommodation ; ( CARDINAL ) the planned use of the land would detract from the rural and open quality of the landscape , contrary to the aim of the local development plan which was to protect the countryside from all but essential development ( see paragraph CARDINAL below ) ; and ( CARDINAL ) FAC was an agricultural drove road which was too narrow to allow CARDINAL vehicles to pass in safety .

ORG On DATE the ORG issued an enforcement notice requiring the caravans to be removed within DATE .

The applicant appealed against the enforcement notice to the Secretary of ORG for the Environment ( see paragraph CARDINAL below ) .

ORG An inspector was appointed by the Secretary of ORG to report on the appeal ( see paragraph CARDINAL below ) . The inspector visited the site and considered written representations submitted by the applicant and ORG .

In her report issued on DATE the inspector observed that the local authority had granted planning permission to CARDINAL caravan sites between the applicant 's site and FAC ( the applicant 's sister 's site and another ) , and to an agricultural workshop on land to the east of the site ( which was occupied at the time of the inspection by an unauthorised road haulage business ) . The applicant 's caravans were screened from the road because of these authorised and unauthorised developments . However , the inspector wrote that :

" ... whether seen or not , the development subject of these notices [ i.e. the applicant 's caravan site ] extends development further from the road than that permitted . It thus intrudes into the open countryside , contrary to the aim of LAW [ see paragraph CARDINAL below ] to protect the countryside from all but essential development . " The inspector also found that the access road to the site was too narrow for CARDINAL vehicles to pass , and thus that the use of the site for caravans would not be in the interests of road safety . She considered the applicant 's special status as a Gypsy and observed that in DATE there were over sixty Gypsy families on unauthorised sites in the district of GPE . She continued : " It is therefore clear in my mind that a need exists for more authorised spaces . ... Nevertheless , I consider it important to keep concentrations of sites for gypsies small , because in this way they are more readily accepted by the local community . ... [ T]he concentration of gypsy sites in GPE has reached the desirable maximum and I do not consider that the overall need for sites should , in this case , outweigh the planning objections . "

She concluded by recommending that the appeal be dismissed .

ORG The Secretary of ORG dismissed the appeal on DATE . The reasons given included the following :

" The decisive issue in regard to the planning merits of your appeals is considered to be whether the undisputed need for additional gypsies ' caravan site provision , in the administrative areas of ORG , and of ORG , is so pressing that it should be permitted to override the objections on planning policy and highway safety grounds to the retention of the use of the appeal site as a residential caravan site for gypsies . On this approach , the view is taken that the objections to the continued use of the appeal site as a residential gypsy caravan site are so strong , on planning policy and highway safety grounds , that a grant of planning permission could not be justified , either on a temporary or personal basis . In reaching this conclusion , full consideration has been given to policy advice in the ORG 's Circular CARDINAL/CARDINAL , giving guidance to ORG on the need to provide adequate accommodation in the form of caravan sites , for gypsies residing in or resorting to their area . However , on the available evidence , the view is taken , in agreement with the officer 's appraisal , that the concentration of gypsy caravan sites around the PERSON area has reached the desirable maximum , and the overall need for additional sites should not outweigh the planning and highway objections arising from the continued use of this particular site . "

The applicant did not appeal to ORG because she was advised by counsel that no grounds arose in her case ( see paragraph CARDINAL below ) .

ORG The applicant has been prosecuted for failure to comply with the enforcement notice of DATE . On DATE she was fined £ MONEY and required to pay £ MONEY costs . She has again been prosecuted on QUANTITY occasions after the introduction of her application to the Commission on DATE . On DATE the magistrates granted her an absolute discharge but ordered her to pay the prosecution costs . Finally , on DATE she was fined £ MONEY and ordered to pay £ MONEY costs .

ORG By a letter dated DATE , ORG informed ORG that the Secretary of ORG had decided to designate the area of GPE under section CARDINAL of LAW DATE ( see paragraph CARDINAL below ) . It was noted that a small number of NORP still remained on unauthorised sites but that , in light of the provision made for sites which was greater than in any other district , it was considered " not expedient for adequate accommodation to be provided for NORP residing in or resorting to GPE district " . The order designating the district of GPE came into force on DATE , but no longer applies because of the provisions of ORG see paragraph CARDINAL below ) .

ORG On DATE the applicant again applied for permission to station her caravans on her site , in the light of a change in the law ( see paragraphs CARDINAL below ) .

ORG She was refused on DATE on the grounds that ( CARDINAL ) local planning policy dictated that development in open countryside should be restricted and no evidence to justify a departure from this policy had been advanced , and ( CARDINAL ) adequate provision for NORP had been made along FAC ( see paragraph CARDINAL below ) .

ORG The applicant ( together with others occupying the neighbouring sites ) appealed against this decision to the Secretary of ORG . A report was prepared by an inspector in DATE . The inspector considered , first , whether the continued use of the land as a Gypsy caravan site would detract from the rural nature of the area , and , secondly , if so , whether there were any special circumstances sufficient to outweigh this objection . She found that the road safety objection , which had been CARDINAL of the grounds of refusal in DATE ( see paragraph CARDINAL above ) , no longer applied . With regard to the first question , the inspector found that the applicant had a mobile home , CARDINAL touring caravans and CARDINAL sheds on her site . These were hidden from the road by the caravans on the sites in front and by an agricultural engineering business , the same depth as the applicant 's site to the east . They were visible from other vantage points but could be adequately screened by planting hedges . However , she concluded that :

" ... the continued use of the rear plots considerably extends the depth of development south of the road . This intensification of use in itself inevitably detracts from the rural appearance and generally open character of the area , contrary to the objectives of national and local countryside policy . I must therefore conclude that the continued occupation of the land as gypsy caravan sites is harmful to the character and appearance of the countryside . "

ORG

" a relevant consideration that there is available alternative accommodation close by , which would enable the appellants to stay in the PERSON area and their children to continue at the local schools " .

On the other hand ,

" little weight [ could ] be given to the private sites at ORG . No substantive evidence was given by either the ORG or the appellants as to whether plots were actually available there or their price " .

The inspector considered the impact of Circular DATE ( see paragraph CARDINAL below ) on the applicant 's case , but concluded that , although it placed greater emphasis on the provision of sites by NORP themselves , it was government policy that proposals for Gypsy sites should continue to be determined solely in relation to land - use factors . She concluded that there had been no material changes since the last appeal was heard and the present appeal should therefore be dismissed .

ORG Accepting the inspector 's conclusions and recommendations , the Secretary of ORG dismissed the appeal on DATE . The applicant has filed an appeal to ORG , which is now pending . ORG

ORG In DATE ORG opened an official Gypsy caravan site in FAC , QUANTITY away from the applicant 's land . The site consists of CARDINAL pitches , each comprising a fenced , partially grassed area with hard standing for caravans and its own brick building containing a kitchen , shower and toilet . Each pitch is designed to accommodate CARDINAL permanent caravan , CARDINAL touring caravan , CARDINAL lorry and CARDINAL car . They are joined by a central road and the site stands in open countryside .

ORG DATE ( when the site opened ) and DATE , CARDINAL vacancies have arisen there . ORG contacted the applicant by letters dated DATE and DATE , informing her of the possible availability of pitches on this site and advising her to apply for CARDINAL to ORG . The applicant has never taken any action in this regard .

ORG Since the site opened , the following incidents have reportedly taken place there : ( CARDINAL ) an unsubstantiated allegation in DATE that CARDINAL of the residents was in possession of a firearm ; ( CARDINAL ) a fight in DATE during which a resident on the site was punched in the eye by another ; ( CARDINAL ) in DATE a car was brought on to the site and set alight ; ( CARDINAL ) in DATE there was an incident of domestic violence ; ( CARDINAL ) also in DATE , the warden 's office on the site was burgled and damaged when temporarily vacant ; ( CARDINAL ) in DATE a site resident was convicted of conduct likely to cause a breach of the peace after exchanging words and threatening gestures with a ORG refuse collector on the site ; ( CARDINAL ) in DATE CARDINAL pitches were damaged by vandalism and/or fire .

ORG There are authorised privately run sites at ORG , QUANTITY from GPE . In DATE the cost of purchasing a pitch on CARDINAL of them reportedly varied MONEY .

ORG DATE ( as amended by LAW DATE ) ( " LAW " ) consolidated pre - existing planning law .

ORG It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of the DATE Act ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .

ORG An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) . The local development plan in GPE restricts development in the countryside to that essential to the efficient operation of particular rural uses , such as horticulture , agriculture and forestry .

ORG The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , para . CARDINAL ) . There is a further appeal to ORG on the ground that the Secretary of ORG 's decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .

ORG If a development is carried out without the grant of the required planning permission , the local authority may issue an " enforcement notice " , if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .

ORG There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .

ORG Again there is a further right of appeal " on a point of law " to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector 's decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority . ORG

ORG Part II of LAW DATE ( " the CARDINAL Act " ) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to NORP as a result of planning and other legislation and social changes in the post - war years . LAW defined " gipsies " as : " persons of nomadic habit of life , whatever their race or origin , but does not include members of an organised group of travelling showmen , or of persons engaged in travelling circuses , travelling together as such " .

Section CARDINAL of the DATE Act provided that it should be the duty of local authorities : " to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area " . The Secretary of ORG could direct local authorities to provide caravan sites where it appeared to him to be necessary ( section CARDINAL ) .

ORG Where the Secretary of ORG was satisfied either that a local authority had made adequate provision for the accommodation of GPE , or that it was not necessary or expedient to make such provision , he could " designate " that district or county ( section CARDINAL of the DATE Act ) . The effect of designation was to make it an offence for any Gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway , on any other unoccupied land or on any occupied land without the consent of the occupier ( section CARDINAL ) . In addition , section CARDINAL of the DATE Act gave to local authorities within designated areas power to apply to a magistrates ' court for an order authorising them to remove caravans parked in contravention of section CARDINAL .

ORG By DATE it had become apparent that the rate of site provision under section CARDINAL of the CARDINAL Act was inadequate , and that unauthorised encampments were leading to a number of social problems . In DATE , therefore , the Government asked Sir PERSON to carry out a study into the operation of LAW . He reported in DATE ( Accommodation for Gypsies : A report on the working of GPE DATE , " ORG " ) . Sir PERSON estimated that there were CARDINAL NORP living in GPE and GPE . He found that : " QUANTITY - and - a - half years after the coming into operation of Part II of LAW , provision exists for CARDINAL of the estimated total number of gypsy families with no sites of their own . CARDINAL of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law : when they stop for TIME they have no alternative but to break the law . " The report made numerous recommendations for improving this situation .

ORG Circular CARDINAL/CARDINAL was issued by ORG . Its stated purpose was to provide local authorities with guidance on " statutory procedures , alternative forms of gypsy accommodation and practical points about site provision and management " . It was intended to apply until such time as more final action could be taken on the recommendations of ORG . Among other advice , it encouraged local authorities to enable self - help by NORP through the adoption of a " sympathetic and flexible approach to [ NORP ' ] applications for planning permission and site licences " . Making express reference to cases where NORP had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming , it recommended that in such cases enforcement action not be taken until alternative sites were available in the area .

ORG Circular CARDINAL/CARDINAL , which was issued on DATE , stated , inter alia , that " it would be to everyone 's advantage if as many gypsies as possible were enabled to find their own accommodation " , and thus advised local authorities that " the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions " . In addition , MONEY was spent under a scheme by which MONEY grants were made available to local authorities to cover the costs of creating Gypsy sites .

ORG LAW of ORG LAW DATE ( " LAW " ) , which came into force on DATE , repealed sections CARDINAL of LAW ( see paragraphs CARDINAL above ) and the grant scheme referred to in paragraph CARDINAL above .

ORG LAW of the DATE Act gives to a local authority power to direct an unauthorised camper to move . An unauthorised camper is defined as " a person for the time being residing in a vehicle on any land forming part of the highway , any other unoccupied land or any occupied land without the owner 's consent " . Failure to comply with such a direction as soon as practicable , or re - entry upon the land within DATE , is a criminal offence . Local authorities are able to apply to a magistrates ' court for an order authorising them to remove caravans parked in contravention of such a direction ( section CARDINAL of the DATE Act ) .

ORG New guidance on Gypsy sites and planning , in the light of LAW , was issued to local authorities by the Government in Circular DATE ( DATE ) , which cancelled ORG CARDINAL/CARDINAL ( see paragraph CARDINAL above ) . Councils were told that :

" In order to encourage private site provision , local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development . ... The aim should be as far as possible to help gypsies to help themselves , to allow them to secure the kind of sites they require and thus help avoid breaches of planning control . " However : " As with other planning applications , proposals for gypsy sites should continue to be determined solely in relation to land - use factors . Whilst gypsy sites might be acceptable in some rural locations , the granting of permission must be consistent with agricultural , archaeological , countryside , environmental , and LOC policies ... "


Violation of Art. 6-1;No violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in Ploieşti .

On DATE the applicant received as a dowry from her father a house situated in Ploieşti ( hereafter called “ the house ” ) , composed of CARDINAL flats and a garage plus the adjoining land .

In DATE the ORG took possession of the property , allegedly under Decree no . CARDINAL/CARDINAL on nationalisation . The applicant was never informed of the grounds or legal basis for that deprivation of property . She was , however , allowed to use one of the flats in the house as a tenant of the ORG .

DATE the applicant made several complaints to the authorities , arguing that the provisions of Decree no . ORG were inapplicable to her case and requesting that the house be returned to her . She did not receive any reply .

In DATE the ORG demolished the garage .

In DATE the applicant brought an action in FAC for recovery of possession of the house . She submitted that she belonged to the category of persons whose property Decree no . ORG exempted from nationalisation and requested that the ORG - owned company , ORG , which managed ORG - owned housing , be ordered to return her property . On DATE the court dismissed her claim on the ground that she had not proved her allegations .

The applicant appealed against that judgment to ORG . In a decision of CARDINAL DATE the court allowed the appeal , declared the action to recover possession admissible and ordered the house to be returned . It found that , as a nurse and a war widow DATE , the applicant belonged to the category of persons whose property the decree exempted from nationalisation .

R.P. appealed against that decision . In a judgment of CARDINAL DATE ORG allowed the appeal , quashed the judgment of CARDINAL DATE and dismissed the applicant 's claim on the ground that the house had become ORG property pursuant to Decree no . ORG and that the courts did not have jurisdiction to review whether the decree had been properly applied to her . The court added that provision as to redress for any wrongful seizure of property by the ORG would have to be made in new legislation .

On DATE the applicant requested PERSON of GPE to lodge an application to have that final judgment set aside , submitting that it was unfair because the court had refused to examine whether Decree no . ORG was applicable to her .

The Procurator - General replied on CARDINAL DATE , informing her that an application to have a final court judgment set aside could be made only , inter alia , where the decision was ultra vires , which had not been the case here . He added that final decisions could not be challenged on grounds of lawfulness or on the merits .

On DATE the applicant lodged an application for restitution of the house with the administrative board established to deal with applications lodged in Ploieşti pursuant to Law no . LANGUAGE ( “ the ORG ” ) . She submitted that she had been dispossessed of her property in breach of Decree no . ORG on nationalisation , and that ORG , in its decision of CARDINAL DATE , had held that the deprivation of property had been unlawful but that ORG had refused to entertain her claim and had indicated that she should bring administrative proceedings .

In a decision of CARDINAL DATE ORG vested ownership of the flat rented by the applicant in her and awarded her financial compensation for the rest of the house and the land . Having regard to LAW no . CARDINAL , which put a ceiling on compensation , ORG awarded the applicant CARDINAL NORP lei ( ROL ) for the second flat and ROL CARDINAL for the adjoining land that had not been returned and rejected her claim for compensation for the garage . According to the applicant , the amount she had received was substantially less than the value of the property .

On an unknown date the applicant challenged that decision in FAC , arguing that she was claiming restitution of the actual house .

The proceedings were adjourned pending the outcome of the second action for recovery of possession , which the applicant had lodged concurrently .

The proceedings were resumed on an unknown date and ended on DATE with a judgment of ORG upholding the decision of ORG .

In the meantime , on DATE , the ORG sold CARDINAL of the flats in the house to the former tenants .

On an unknown date the applicant lodged a further action for recovery of possession with ORG .

In a judgment of DATE the court dismissed the action on the ground that , by deciding to bring administrative proceedings , the applicant had acknowledged that the property had been nationalised with valid legal title and was consequently debarred from bringing an action for recovery of possession .

The applicant appealed . She stressed that she had consistently argued before ORG that her house had been wrongfully nationalised and that she had brought administrative proceedings under PERSON no . NORP because ORG had refused to examine her first action for recovery of possession . ORG dismissed her claim on DATE on the same ground as ORG .

The applicant appealed . On DATE ORG dismissed her appeal in a final decision . It noted that the applicant had applied concurrently to ORG and the courts for restitution of the house and noted that the administrative proceedings had been adjourned . It concluded that the applicant , having chosen the remedy provided for in PERSON no . LANGUAGE , was now debarred from bringing an action for recovery of possession in the ordinary courts because that choice amounted to an implicit acknowledgment on her part that the nationalisation had been lawful .

On an unknown date the applicant applied for the judgment of ORG to be set aside on the ground that ORG had denied her access to a tribunal for the determination of her action for recovery of possession . Her application was dismissed on DATE by ORG .

The relevant domestic legislation and case - law are set out in the ORG v. GPE judgment ( [ ORG ] , no . CARDINAL , ORG CARDINAL-VII , pp . CARDINAL , § § DATE ) .


The applicant is a NORP national , born in DATE , residing in Racibórz

In DATE the applicant wrote a letter to ORG ( ORG ) in which he requested that his wish to abandon his NORP citizenship be acknowledged . He formulated at this occasion various complaints about , in his view , catastrophic situation of the country , about poverty of growing parts of population due to ruinous economic policies and about a number of other social and political issues . He also wrote a letter to the Chancellery of the President of GPE , requesting to be divested of his citizenship .

On an unspecified date criminal proceedings were instituted against the applicant on charges of arson .

On DATE ORG submitted a motion to ORG , requesting that an order be given for the applicant ’s placement at a psychiatric institution .

On DATE ORG , after a hearing held on that date in the presence of the applicant , his lawyer and a prosecutor , committed the applicant to a mental hospital . The court established that criminal proceedings had been instituted against the applicant on suspicion of arson . As doubts had arisen as to the applicant ’s mental health , the prosecutor appointed experts in order to establish his condition . The experts requested that the applicant undergo a psychiatric observation , and , after the observation had been completed , submitted their report . They concluded that on account of psychiatric illness he could not be held criminally responsible , within the meaning of LAW § CARDINALof LAW applicable at that time , and that he posed a threat to public order . The prosecutor had subsequently requested the court to order the applicant ’s committal to a psychiatric institution . The court further stated that in the light of the evidence gathered in the investigations the applicant was , beyond any doubt , an author of the criminal offence in question ( “ analizując dowody zgromadzone w toku śledztwa PERSON uznał , że nie budzi wątpliwości , iż podejrzany jest sprawcą zarzucanego mu czynu ” ) . The court further considered that the prosecutor ’s request was supported by unequivocal conclusions of the experts .

The applicant lodged an appeal , arguing that he had not been given the access to the full text of the medical expert opinion , that the charges against him were supported only on circumstantial evidence and his guilt had not been established , and challenged the experts’ argument that his wish to emigrate had been motivated by his mental illness .

On DATE ORG , in a session in the presence of a prosecutor , dismissed the applicant ’s appeal . The court stated that the evidence allowed for a finding that the applicant had committed the offence concerned . The court referred in this respect to the applicant ’s confession made in the investigations , and to the testimony of a fireman who had been leading action of the fire brigade . In his view , the applicant ’s apartment had deliberately been put on fire . He had also found CARDINAL bottles with petrol in the apartment . The court further had regard to the medical expert opinion to the effect that the applicant , who suffered from paranoid syndrome , could not be criminally responsible on psychiatric grounds and that he should be committed to a hospital as he posed a genuine and serious threat to public order . The court concluded that , in view of the fact that the applicant who had never before been under any psychiatric treatment , was uttering threats that he would escalate his violent actions , the conclusions of the lower court were justified .

Subsequently the applicant was placed in a psychiatric hospital . On an unspecified date he requested the ORG to lodge a cassation appeal against this decision .

On DATE the ORG lodged a cassation appeal against the decision of ORG . The ORG argued that ORG had failed to inform the applicant and his lawyer about the date of the hearing which was held before that court on DATE . The applicant had thus been deprived of his defence rights .

On DATE ORG quashed the decision of ORG , considering that in view of the fact that the applicant ’s lawyer had not been informed about the date and time of the latter court ’s session of DATE , and that the applicant ’s interests had not been properly presented and defended in the proceedings . ORG ordered that the case be remitted to ORG for reconsideration .

Apparently later the applicant submitted a request to be discharged from the psychiatric hospital to ORG .

On DATE ORG , having again examined the applicant ’s appeal against the decision of ORG of DATE , upheld the decision . The court took into consideration that the evidence gathered in the investigations conducted by the prosecution allowed for a conclusion that the applicant had been the author of the offence concerned , as shown by his own confession and by the testimony of the witness PERSON , relied on by the lower court . The court further referred to the medical expert opinion of psychiatrists from PERSON hospital who , having regard to the results of a clinical observation of the applicant , established that he had been suffering from paranoid syndrome , and that in view of his illness he posed a serious and genuine threat to legal order . The court concluded that the decision of the lower court was well - founded . The court finally observed that , in the light of the letter of the Chief Physician of ORG of DATE , apparently concerning the applicant ’s condition at that time , a judicial review of the applicant ’s detention , provided for by LAW , was called for .

By a letter of CARDINAL DATE ORG informed the applicant that a decision concerning his request for release would be given as soon as the medical expert opinion was submitted to the court .

On DATE the applicant complained that the proceedings concerning his request for release lasted too long .

In reply , ORG , in a letter of CARDINAL DATE , informed the applicant that the decision would be given as soon as the experts appointed to prepare an opinion as to his continued detention submit their final report . They had been urged by the court to speed up their progress , to no avail . In view of their failure to react , the court had requested them again to accelerate their work .

On DATE ORG , having questioned the experts , decided that the applicant ’s detention should be maintained as he still presented a threat to public order .

The applicant and his lawyers lodged appeals against this decision , submitting that , in the view of the applicant ’s condition the maintaining of the applicant ’s detention had ceased to serve any purpose , and that the decision to detain him had been “ politically motivated ” .

On DATE ORG declined to examine the appeal , considering that under LAW it was ORG , composed of CARDINAL professional judge and CARDINAL lay judges , which was competent to rule on the applicant ’s appeal .

On DATE ORG upheld the decision of DATE . The court considered that the first - instance court had been thorough in its assessment of the evidence , in particular in respect of the expert medical opinions of psychiatrists ORG and ORG , the conclusions of which they had reiterated at a hearing on DATE , indicating that the applicant ’s detention should be maintained . The court further considered that the conclusions of this expert report , contrary to the appearances ( “ wbrew pozorom ” ) , were identical with statements contained in another medical expert opinion drawn by psychiatrists ORG and ORG who had stated that the applicant ’s personality had certain paranoiac characteristics . They had further argued that , since the applicant had been uttering threats , he should remain in detention . The court therefore concluded that their conclusions actually strengthened the conclusions of the other CARDINAL experts . The court went on to state that in view of the applicant ’s past conviction for uttering threats and arson and the fact that during his detention in the hospital he had been submitting numerous complaints to various institutions , his further detention was called for as he had not ceased to pose a serious and genuine threat to legal order .

On DATE , the applicant requested that criminal proceedings be instituted against certain experts involved in his case . On DATE ORG , to whom the case had been transferred as the prosecutor in whose jurisdiction the proceedings should be conducted , requested that the investigations be conducted by another prosecuting authority , refused to do so . The applicant appealed , and on DATE ORG set this decision aside .

On DATE ORG refused to re - open the proceedings in which the applicant ’s placement at the mental hospital had been ordered , finding that the legal requirements had not been met .

On DATE ORG held a hearing at which it examined the applicant ’s request for release , submitted at an unknown date . The court , having regard to doubts as to the applicant ’s current health , and in accordance with the applicant ’s request , ordered that an opinion of a specialised research institution be sought . The applicant subsequently underwent DATE observation in the hospital of ORG of ORG in GPE hospital .

On DATE ORG discontinued the investigations against the experts , considering that they had no case to answer . The applicant ’s appeal was subsequently transmitted to FAC . On DATE the court upheld this decision .

On DATE ORG ordered the applicant ’s release .

The conditions for detention of persons of unsound mind who are not responsible on medical grounds were laid down in LAW , as it stood at the material time :

" If it has been established that a person has committed an offence in a state of mental disorder [ excluding his criminal responsibility ] , and his remaining at liberty entails a serious danger to public order , the court shall commit him to a mental hospital or another appropriate institution . "

" In cases provided for in LAW ... ) the period of detention is not determined in the decision of the committal to the psychiatric institution ; the court shall order the release if the detention ceases to be necessary . "

According to the case - law of ORG , a threat to public order is to be determined on the basis of a situation obtaining at a time when the offender ’s detention in the psychiatric institution is imposed . The assessment of the existence and the degree of such threat should be made in the light of a medical expert opinion . For a decision ordering detention in a psychiatric hospital to be given , it is not necessary that it is expressly stated in the medical expert opinion that it would pose a threat to public order if the offender were to remain at liberty . It suffices that such a conclusion could be drawn from the medical expert opinion taken as a whole ( ORG , ORG i DATE , item CARDINAL ) .

A threat to public order is considered serious if an offender ’s remaining at liberty gives rise to a risk of an unlawful act being committed by him ( ORG , ORG i DATE , item . CARDINAL ) .

LAW , applicable at the relevant time , reads :

" CARDINAL . A director of a medical institution is obliged to keep the court informed of the detainee ’s health and of the progress in treatment .

The court , at intervals of not longer than DATE , shall decide , on the basis of a medical opinion , on the necessity to maintain further security measures . "


Violation of Article 10 - Freedom of expression -{General}

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE . He is a practising lawyer and lives in GPE .

On an unspecified date the applicant , on behalf of his client Mr ORG , filed an action with ORG seeking the annulment and suspension of execution of a competition to fill CARDINAL posts announced in the PERSON newspaper on DATE by the office of the mayor of the LOC district in GPE . In his petition , the applicant stated , inter alia , that CARDINAL out of CARDINAL workers who had been dismissed on CARDINAL DATE had won their cases before ORG but despite this fact they had not been reinstated . In this regard , the applicant submitted that the municipality had refused to reinstate CARDINAL of the workers on the ground that there were no available posts . As to the other CARDINAL , they had been reinstated for DATE before being dismissed again . The applicant complained that pending another set of administrative proceedings against the GPE regarding a competition announced in the same newspaper on DATE for CARDINAL posts , the Municipality had announced this new competition , through which it was aiming to fill the available posts , rendering impossible the enforcement of the court judgments in favour of the dismissed employees , including his client . He further claimed that the vacancy notice had been published only in the editions of PERSON which were distributed to various associations affiliated with ORG and not in the normal edition of PERSON as distributed in GPE that DATE .

In CARDINAL paragraph of his petition , the applicant made the following remark :

“ As stated by political historians , the most dangerous cruel [ person ] ( zalim ) in the world is the one who considers himself and his acts as fair or who presents himself as such . The elected head of the accused administration , who has placed my clients in their current situation , is such a cruel [ person](zalim ) and a bigot ( yobaz ) with no regard for the rule of law ( hukuk tanımaz ) . ”

On DATE Mr Bingöl , mayor of PERSON and member of ORG , brought an action against the applicant claiming compensation for the damage he had incurred as a result of the applicant ’s serious attack on his honour and integrity .

In the course of the proceedings before ORG ( hereafter the “ ORG ” ) , the applicant unsuccessfully asked the court to appoint expert witnesses to analyse the impugned words and to hear a number of witnesses . In his written observations , the applicant maintained , inter alia , that his statements had not been an attack against Mr ORG but mere observations , since there were documents proving to what degree the latter had acted in accordance with the laws , the LAW and ethics over DATE . He made a number of accusations regarding Mr PERSON ’s actions as mayor and referred to the fact that the latter and his administration had been the subject of media attention many times . The applicant stated that he had used the impugned words in the course of his defence duties ; it had not been his aim to insult PERSON . He had referred to the plaintiff as “ cruel ” because the dismissals had had serious adverse effects on the lives of his CARDINAL clients . He had used the word “ bigot ” as a reference to an intolerant person . In this connection , the applicant also referred to the reasons voiced by ORG when it decided to ban the Refah party . The applicant also accused the plaintiff of misleading and lying to the domestic courts .

In his written observations PERSON claimed , inter alia , that the applicant ’s accusations were false and unfounded , that he had repeated his insulting remarks before ORG and that this attack on his personality had transgressed the standards and boundaries of objective debate .

On DATE ORG ordered the applicant to pay compensation to Mr PERSON in the amount of MONEY ( TRL - approximately MONEY [ ORG ] ) plus interest at the statutory rate applicable at the date of the court ’s decision . ORG considered that the word yobaz used by the applicant meant a person “ whose religious beliefs were so extreme as to cause discomfort to other persons ” and a person who was “ provocative , vulgar and unsophisticated ” . The word was used in DATE life to describe an “ unlikeable , ignorant and vulgar ” person . In any event , the applicant ’s written submission , when read as a whole , had employed “ sharp and harsh ” language . According to ORG , whether or not the applicant had had the intention to insult the mayor was irrelevant ; what was important was how the public would interpret those words . After all , PERSON was the elected mayor of a district where CARDINAL people lived . The applicant appealed .

On DATE the CARDINALth ORG held a hearing and , by a majority , quashed ORG decision of DATE on the ground , inter alia , that the applicant ’s witnesses had not been heard . The president of the ORG dissented .

On DATE ORG , considering that hearing the applicant ’s witnesses and examining the administrative court ’s case file would not have changed the outcome , insisted on its decision of DATE . The applicant appealed again .

On DATE the Grand Chamber of ORG rejected the appeal and upheld ORG decision of CARDINAL DATE . The court noted that there was no dispute that , inter alia , the municipality headed by PERSON had failed to execute certain court judgments . However , it remained to be determined whether the words used by the applicant in the course of the administrative proceedings had a valid basis and whether these words constituted an attack against Mr ORG ’s personal rights . In this connection , it considered that the applicant had overstepped the standards and boundaries of objective debate by using the terms “ bigot ” , “ cruel ” and “ no regard for the rule of law ” . The applicant had attacked Mr PERSON ’s personal rights . It also considered that the sanctions for the non - execution of a court decision – of which the mayor had been accused DATE were provided for by statute and that this could not be considered to be a valid reason for the applicant to cross the legally permissible boundaries and use the words he had . Finally , it held that listening to witnesses or examining the case file before the administrative courts would not have changed the outcome . ORG of ORG also decided to remit the case to ORG for an examination of the applicant ’s complaints concerning the excessive amount of compensation . A request by the applicant for the review of that decision was rejected on DATE .

On DATE the CARDINALth Chamber of ORG rejected the applicant ’s appeal concerning the amount of compensation , which he considered excessive when account was taken of his resources , and upheld the decision of ORG . A request by the applicant for the review of that decision was rejected on CARDINAL DATE .

The applicant paid the due amount of GPE CARDINAL ( approximately ORG CARDINAL,CARDINAL ) , in CARDINAL instalments , on DATE , DATE and CARDINAL DATE respectively .

The relevant domestic law and practice in force at the material time are outlined in the following judgments : NORP and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) , and GPE v. GPE ( no . CARDINAL , § CARDINAL , CARDINAL DATE ) .


The applicant is an NORP national , born in DATE and living in GPE , GPE .

He is represented before the ORG by PERSON , a solicitor practising in GPE with the firm ORG .

A.

On DATE the applicant was convicted at ORG of CARDINAL murders and associated offences . The court sentenced him to CARDINAL life sentences in respect of the murders and to determinate prison terms of DATE for attempted murder and DATE for membership of a proscribed organisation .

In DATE he escaped from prison . He was later recaptured and in DATE was convicted of DATE offences in connection with his escape . He received sentences ranging from DATE imprisonment , which the court ordered should run consecutively with the determinate sentences but concurrently with the life sentence .

On DATE the applicant was released on licence pursuant to the powers granted to the Secretary of ORG under section PERSON ) of the Prison ( GPE ) Act DATE ( “ the DATE LAW ) . The applicant signed a document of release which contained the following note :

“ A person serving a sentence of life imprisonment who is released on licence is liable under the provisions of LAW ( GPE ) Act DATE to be recalled to prison at any time by order of the Secretary of ORG . ”

On DATE the applicant was arrested at his home . He was charged on DATE with conspiracy to collect and record information likely to be useful to terrorists and the possession of such information , contrary to section CARDINAL of GPE ( Emergency LAW Act DATE . He was remanded in custody .

On DATE the Secretary of ORG made an order under section CARDINAL ) of the DATE Act revoking the applicant ’s licence and recalling him to prison . In a letter dated DATE ORG informed the applicant that his licence had been revoked by the Secretary of ORG :

“ … following careful consideration of all available information about your case , including the original offence for which you received CARDINAL life sentences and information regarding the circumstances of your recent arrest and subsequent committal to prison on DATE charged with terrorist - related offences . [ The Secretary of ORG ] has decided on grounds of risk and public interest that it would be inappropriate for you to retain your status as a life licensee . ”

The applicant was also informed that he could make representations to the Secretary of ORG by way of petition . As was regular practice at the time , the applicant was not afforded the opportunity to make such representations before the licence was revoked ; nor was he provided with any documents about the matters considered by the Secretary of ORG when deciding to make the order .

By petition dated DATE addressed to the Secretary of ORG the applicant stated that he had not been found guilty of any offence and had not been given an opportunity to refute any allegation made against him . He requested an explanation for the revocation of his licence .

On DATE the applicant ’s solicitors wrote to the Secretary of ORG requesting detailed reasons as to why the licence had been revoked and “ for further proposals now in place to review our client ’s life licence . ” In a further letter dated DATE the applicant ’s solicitors asked for particulars about the information on which the Secretary of ORG had acted and details of the “ public interest ” which formed a ground for his revocation . Although an acknowledgement was sent , it does not appear that a detailed reply was furnished before the applicant commenced judicial review proceedings on DATE .

On DATE the prosecution dropped the charges against the applicant . The matter of the revocation of the applicant ’s licence was then referred back to the Secretary of ORG for reconsideration . In a letter dated DATE ORG informed the applicant that the charges against him had been withdrawn and that the Secretary of ORG would again consider his case “ in the light of all information available . ” The applicant was invited to make any written representations which he might wish the Secretary of ORG to consider before deciding on his suitability for release on life licence .

In a letter dated DATE the applicant ’s solicitors wrote to the Secretary of ORG in the following terms :

“ Our client instructs us to request copies of all material upon which the Secretary of ORG will rely , in order to make effective representations in respect of his release . Our client instructs us that he will submit a petition as to why he should be released , however , we are instructed that any representations he can make at this stage will inevitably be limited in the absence of any knowledge of the concerns the Secretary of ORG may have in relation to our client ’s release . ”

The applicant submitted a petition dated DATE to the Secretary of ORG , complaining of the procedure which had been adopted in the revocation of his licence and asking that the licence be reinstated as soon as possible . On DATE the Secretary of ORG determined to release the applicant again on licence , and he was in fact released on DATE .

By letter dated DATE certain materials were disclosed to the applicant ’s solicitors , including materials considered by the Secretary of ORG when revoking the licence on DATE , as well as materials considered by the Secretary of ORG in DATE before deciding to release the applicant . Certain documents or parts of documents were withheld from disclosure on the ground of public interest immunity .

On DATE the applicant initiated judicial review proceedings to quash the decision of the Secretary of ORG to revoke his licence and to obtain a declaration that the revocation was unlawful . Following his release on licence on DATE , the applicant amended his statement of claim in order to limit the relief sought to a declaration that the revocation was unlawful . He argued , inter alia , that he should have been given an opportunity to make representations before the licence was revoked and been provided with the reasons for its revocation .

On DATE the Lord Chief Justice , Lord PERSON , gave judgment on the application . Having reviewed domestic case - law he concluded :

“ It is now clear from the authorities that fairness requires as a general rule that ( a ) a prisoner whose licence is revoked must receive at some stage an opportunity to make representations about the revocation and ( b ) in order to do so effectively he must be made aware of the reasons for the revocation if he does not already know them … We do not consider , however , that it is possible to lay down general rules about the stage at which the opportunity to make representations must be afforded or about the extent of any exception to the obligation to give reasons based upon the protection of sources of information who might be put in danger . In our view these are matters in respect of which much may turn upon the circumstances of the individual case and it would not be useful to prescribe procedures in any greater degree of detail .

Nor can we say with sufficient precision on the facts before us whether the applicant was prejudiced in the present case by the procedure adopted to an extent sufficient to make that procedure unlawful . He had the opportunity immediately after his licence was revoked to make representations by petition , but did not avail himself of this until DATE had passed , and then only to complain that he had not been told why his licence had been revoked . Nor did he at any time make any representations about the substance of the case , the validity of the Secretary of ORG ’s decision to revoke the licence and the grounds for doing so … ”

The Lord Chief Justice stated with regard to the above that it would not be appropriate in the circumstances to make a declaration about the lawfulness of the revocation of the applicant ’s licence .

According to the applicant , he did not apply for leave to appeal against the decision since it represented a correct statement of domestic law and any appeal would have had no reasonable prospects of success .


Violation of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1 as regards non-execution;No violation of P1-1 as regards other complaints

The applicant was born in DATE and lives in GPE .

Before the Second World War the applicant 's mother occupied a dwelling house ( “ the house ” ) on a plot of land measuring QUANTITY ( “ the plot ” ) in the centre of the tourist resort of GPE on LOC coast . Following the NORP occupation of GPE in DATE , the land was nationalised and the house was demolished in DATE .

By a decision of CARDINAL DATE ORG , by reference to ORG , decided to “ restore the property rights ” of the applicant and her sister in regard to their late mother 's land . No form of restitution was specified in the decision .

The decision of DATE was not implemented as no land was returned and no compensation was offered . In DATE the applicant brought a court action against the local authority , claiming that the plot should have been returned to her and her sister . ORG

On DATE GPE dismissed the applicant 's action . By reference to LAW ( see § CARDINAL below ) , the court held that the applicant was not entitled to recover the plot , but that she should have been offered an alternative parcel in compensation as required by the law .

The applicant appealed , stating that the plot had to be returned to her .

On DATE ORG quashed the judgment of ORG . ORG found that the decision of ORG of DATE did not comply with LAW as the local authority had not decided whether land or money and , in either case , which land or what amount of money should have been offered to the applicant as a compensation . ORG held that the local authority had to resolve these questions . The court required the administration of GPE to “ adopt , by DATE , a decision on the request by ORG to restore her property rights in regard to the plot of land ( iki DATE m. birželio QUANTITY priimti sprendimą pagal PERSON prašymą dėl nuosavybės teisės į žemės sklypą atstatymo ) ” .

NORP However , no such decision was taken as the applicant refused an alternative parcel of land in another area of GPE . The applicant 's sister accepted an alternative parcel .

On DATE the applicant obtained an execution warrant for the judgment of DATE . She put the matter in the hands of bailiffs who were unable to execute the warrant against the county administration . The executive authorities took no further decision as the applicant had again refused an alternative parcel of land .

By a letter of DATE , the GPE Governor stated that the applicant had misinterpreted the judgment of DATE . In the Governor 's opinion , ORG had only required the county administration to adopt a decision in accordance with ORG . As the applicant had no buildings or other property on the plot , she was not entitled to its return . The Governor requested the applicant to approach planners at ORG to choose an alternative parcel . He warned her that a different parcel would be allotted without her consent in order to comply with the judgment of DATE .

On DATE the applicant wrote to the Prime Minister , stating that she had been entitled to the plot , that the alternative parcels offered by the local authority were located in the outskirts of GPE , and that their value was thus not equivalent to the plot in the centre of town .

In a letter of CARDINAL DATE , the Director of ORG of the Ministry for Agriculture and Forestry stated that on DATE ORG had decided to restore the applicant 's property rights notwithstanding the fact that there had been a lack of relevant documentation proving her late mother 's ownership of the plot . Moreover , the Director stated that from the decision of DATE it was “ unclear in respect of which owner or land the property rights were restored [ ; ] the form of the restitution of property was also unclear ... ” . The Director requested PERSON to re - examine the lawfulness of the decision of DATE .

Until DATE the applicant was proposed and refused CARDINAL offers by GPE for alternative parcels of land in various areas of GPE .

By a letter of CARDINAL DATE , the executive authorities informed the applicant that she had not proved her mother 's ownership of the original plot in accordance with the governmental instructions of DATE , i.e. she had not submitted the original papers confirming the purchase of the plot by her mother , or a court decision proving ownership . The executive authorities held that they could not proceed with a decision on compensation until the applicant presented these papers .

The Restitution of Property Act ( Nuosavybės teisių ... atkūrimo įstatymas ) ( of DATE , amended on numerous occasions ) provides for CARDINAL forms of restitution : CARDINAL ) the return of the property in certain circumstances , PERSON ) compensation in other cases ( compensation can be made in land or money ) .

On DATE ORG examined the issue of compatibility of the LAW with the domestic laws on restitution of property rights . In its decision ORG held inter alia that possessions which had been nationalised by the NORP authorities since DATE should be considered as “ property under the de facto control of the ORG ” . ORG also stated : “ The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded . The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property item . In this situation the decision of a competent authority to return the property or to compensate therefor has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item . ” ORG also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property .

In decisions of DATE and DATE the ORG emphasised that the notion of restitution of property rights in GPE essentially denoted partial reparation . In this respect ORG noted that the authorities of GPE as a re - established ORG in DATE were not responsible for the NORP occupation DATE , nor were they responsible for the consequences of that occupation . ORG held that since DATE many private persons had bought , in accordance with the legislation applicable at the material time , various property items which had been previously nationalised . The denial of these factual and legal aspects was impossible , and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners , but also the interests of private persons who had occupied or purchased the property under lawful contracts .

On DATE ORG also said that the choice by ORG partial reparation principle was influenced by the difficult political and social conditions in that “ new generations had grown , new proprietary and other socio - economic relations had been formed during DATE of occupation , which could not be ignored in deciding the question of restitution of property ” .

On DATE ORG ruled that a person who qualifies for compensation for property which can not be returned is entitled to choose the form of compensation ( land or money ) by giving written permission for the authorities to proceed with the decision . ORG also held that the executive authorities have discretion to decide on appropriate compensation in each case , but that a person is entitled to contest that compensation by way of a court action .

Under LAW ( all versions until DATE ) , the authorities were required to obtain the written permission of the person concerned before they determined the actual compensation for the property which could not be returned .

Pursuant to the version of ORG as amended from DATE , the executive authorities are now entitled to decide the question of compensation without the person 's approval . That decision can be appealed to a court in accordance with the procedure established in LAW . No stamp duty is required to file such an action .

Under LAW , a court judgment which has come into force is binding and must be executed .

The Code of Civil Procedure nonetheless requires the individual concerned to obtain an execution warrant ( vykdomasis raštas ) from the court which has delivered the final judgment ; the execution warrant must be presented to bailiffs for immediate enforcement ( Articles CARDINAL - CARDINAL ) . The requirements of the bailiffs are binding on all authorities and subjects ( Article CARDINAL ) .


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - Conviction)

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

The applicant was born in DATE and is currently detained at ORG , ORG .

On DATE the applicant was convicted at ORG of an offence of conspiracy to cheat the public revenue . On DATE he pleaded guilty to CARDINAL offences of concealing proceeds of criminal conduct to retain them or to avoid prosecution ; and removing property from the jurisdiction to retain proceeds of criminal conduct or to avoid prosecution . On DATE , he was sentenced to CARDINAL years’ imprisonment in respect of the conspiracy offence , with no separate penalty imposed for the other CARDINAL offences .

On DATE ORG dismissed the applicant ’s appeal against sentence .

On DATE the applicant walked out of ORG , an open prison , and fled to GPE . At that time he had served DATE and DATE of the sentence . A total of DATE and DATE remained to be served . On DATE a warrant for the applicant ’s arrest in respect of the offence of escape from lawful custody was issued by ORG .

Also on DATE , ORG made a confiscation order in respect of the applicant ’s conviction for conspiracy to cheat the public revenue in the sum of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL . The amount specified in the order was to be paid by the applicant by DATE , with CARDINAL years’ imprisonment to be served in default of payment , consecutively to the DATE term of imprisonment already imposed . Although the applicant was not present , he was represented by senior counsel .

On DATE the applicant was refused leave to appeal against the confiscation order . In DATE the full court of ORG refused the applicant ’s renewed application for leave to appeal against the confiscation order .

On DATE an enforcement and receivership order was made against the applicant in order to seek to recover the sums specified in the compensation order , as only GBP CARDINAL had been recovered by the Official Receiver .

On DATE ORG issued a request to ORG for the applicant ’s extradition , pursuant to LAW DATE ( “ the ECE ” ) , as a convicted person and as an accused person . The request was made on the basis that the applicant had been convicted of conspiracy and money laundering offences and was accused of an offence of escape from lawful custody .

An accompanying witness statement by a Revenue and ORG set out the offences of which the applicant had been convicted , together with the relevant law . It noted that the applicant ’s return was sought in order to serve the remainder of the sentence of DATE imprisonment imposed on him . It referred to the confiscation order and concluded :

“ ... It is established law that a default sentence so imposed constitutes part of the overall penalty . [ The applicant ’s ] return to GPE is therefore sought in respect of any activation of the default sentence which may become necessary . ”

In diplomatic notes dated DATE and DATE , ORG asked the NORP authorities for further information relating to the acts committed by the applicant . On DATE and DATE ORG replied to the questions .

On DATE an arrest warrant was issued by the examining magistrate in GPE , GPE . The applicant was arrested pursuant to that warrant on DATE .

By diplomatic note dated DATE , ORG asked the following question of GPE authorities :

“ ... whether the extradition of the [ applicant ] is also being requested for charges of evasion and for non - payment of the confiscation sum ordered by ORG on DATE . ”

By diplomatic note of CARDINAL DATE to ORG , ORG in GPE enclosed the response of Her ORG Revenue and ORG ( “ ORG ” ) . The response was in the following terms :

“ It is important to make clear that there is no charge , in existence or proposed , for evasion or non - payment of the order . The extradition of PERSON is not sought in respect of non - payment of the confiscation order which was made against him ; it is sought in respect of one charge of escape from lawful custody and to finish serving the term of imprisonment passed on him in respect of the offence of conspiracy to cheat .

The confiscation order was part of the sentence passed on PERSON . The effect of the relevant legislation is that such orders are treated in the same way as fines . When a ORG imposes a fine on any person , they may allow that person time to pay the fine but they must make an order fixing a term of imprisonment which that person must serve as a last resort if the sum they owe has not been paid or recovered . The confiscation order in this case was made on DATE , the judge allowed PERSON time to pay until DATE , and set a term of imprisonment in default of DATE . The order remains outstanding and this office has been taking steps to enforce it .

Activation of a default sentence is CARDINAL of the many means available to the court to enforce outstanding orders . The court can initiate activation of its own volition or the prosecutor can invite the court to do so . Before activating the default sentence , judges are under a duty to enquire into the defendant ’s proposals for payment and to determine whether any of the other methods of enforcement might be effective . [ The applicant ] would have the opportunity to make representations throughout this process . [ The applicant ] still has the option to pay the confiscation order at any time and if his assets are insufficient to meet the confiscation order he may apply to ORG for a certificate of inadequacy . If CARDINAL is granted , he may then apply to ORG to reduce the amount of the confiscation order ... ”

On DATE ORG issued its decision on extradition . The decision noted :

“ CARDINAL . On DATE , ORG requested the arrest and extradition of the party concerned to serve the remainder of a prison sentence of DATE handed down by ORG on DATE for fraud and money laundering .

In a diplomatic note of DATE , ORG in GPE requested the extradition of the party concerned . ”

It continued :

“ CARDINAL . In a diplomatic note of CARDINAL DATE , ORG informed the ORG [ ORG ] that the extradition of the party concerned was not being requested for non - payment of the amount of the confiscation ordered by way of the decision of DATE of ORG , but was being requested for the absconding . ”

NORP The decision noted that for extradition to be ordered , the offence for which it was sought had to be an offence in both countries . As regards the offence for which the DATE sentence was imposed , ORG considered in some detail the facts behind the offence . It noted the applicant ’s objection that the request for extradition was not clear regarding whether it was also requested for the offence of absconding and for non - payment of the amount confiscated which were not punishable under NORP law .

ORG ruled that since LAW did not punish a person who absconded , the extradition would not be granted for the act of absconding . It noted that the extradition was not requested for the non - payment of the confiscation order and that there was no need to ask the NORP authorities to give any guarantees , as nothing suggested that they would not adhere to the rule that a person could only be tried for the offence for which he had been extradited .

It granted the extradition for the acts described in the extradition request of ORG of DATE and its additional documents of DATE and DATE , excluding the acts of absconding .

On DATE the applicant appealed to ORG . On DATE ORG upheld the decision of ORG . It summarised the facts of the case , and noted that ORG had declared that extradition was only being sought for the acts of absconding , and not for non - payment of the confiscation order .

NORP In response to the applicant ’s criticism of the decision of ORG for failing to exclude extradition for the purpose of initiating proceedings regarding the non - payment of the confiscation order , the court noted that the NORP authorities had expressly stated that extradition was not requested for non - payment of the amount in the confiscation order and held that this statement was sufficiently clear and appropriate for the purposes of removing the applicant ’s doubts .

On DATE the applicant appealed to ORG . On DATE ORG ruled that the appeal was inadmissible . In its judgment , it summarised the findings of ORG :

“ ... The applicant authority had clearly waived the right to apply for extradition for the sentence relating to non - payment of the confiscation [ order ] ... ”

On DATE the applicant was extradited to GPE and returned to prison to complete his sentence .

NORP In DATE the ORG applied to ORG to enforce the DATE term of imprisonment imposed on the applicant in default of payment of the confiscation order .

On DATE the head of ORG sent an email to ORG stating that this would amount to a violation of the rule of specialty .

On DATE ORG wrote to the NORP authorities indicating that it intended to proceed with an application to enforce the DATE term of imprisonment . It noted that the extradition request concerned the offence of conspiracy to cheat the public revenue ( “ the extradition offence ” ) , of which the applicant had been convicted , and the offence of escape from lawful custody , of which the applicant was accused . The request for extradition in respect of the latter offence was refused . As regards the non - payment of the confiscation order , the letter indicated :

“ While the extradition request was under consideration , a question was put by the NORP authorities ... as to whether [ the applicant ’s ] ‘ extradition is also being requested for charges of evasion and for non - payment of the confiscation sum ordered by ORG on DATE .

In our response we sought to explain that there were no charges for the non - payment of the order , the order was part of the sentence for the extradition offence and if the order were not to be satisfied this would result in the activation of the default sentence .

As the sentence for non payment was part and parcel of the sentence imposed for the extradition offence , it was not possible , or necessary , to seek his extradition in relation to it ; as part of the sentence for the extradition offence it was covered by the terms of the extradition request .

It appears from the documentation that we have had sight of that PERSON was returned on the basis that the default sentence referred to above may not be imposed . This decision appears to be made on a misunderstanding of the requesting ORG ’s position as is set out in the documents provided to ORG in support of the extradition request . ”

Referring to section CARDINAL of LAW DATE ( see paragraph CARDINAL below ) , ORG explained that the sentence for the extradition offence was made up of CARDINAL component , and covered the prison sentence for the wrongdoing , the financial penalty in the confiscation order and the custodial penalty that flowed from the non - payment . The letter concluded :

“ I take this opportunity to assure the Government of ORG that the GPE is committed to its international obligations and has no intention of dishonouring the principle of specialty .

However , for reasons which I trust are apparent from what is set out herein , imposition of the default sentence in these circumstances can not be considered to be a breach of the GPE ’s specialty obligations , either as set out in the ORG or in GPE domestic legislation . ”

On DATE ORG wrote to ORG indicating that if the GPE authorities intended to ask for the extension of the extradition to include the non - payment of the confiscation order , they would have to proceed in accordance with LAW ( see paragraph CARDINAL below ) .

On DATE the ORG application to enforce the default term came before ORG . The applicant argued that the proceedings were barred by the rule of specialty , which restricts prosecution or punishment of an extradited person to the offence for which extradition was granted . The District Judge considered the applicant ’s claim to be arguable but was of the view that only ORG had jurisdiction to consider an abuse of process argument . He therefore adjourned the proceedings to allow the parties to bring judicial review proceedings .

On DATE the applicant lodged a claim for judicial review seeking an order that the District Judge be prohibited from proceeding to examine ORG application because the proceedings were an abuse of process ; and an order that the District Judge be prohibited from proceeding to examine ORG application because it constituted a breach of section CARDINAL of LAW DATE ( “ the DATE LAW see paragraphs CARDINAL below ) .

On DATE the ORG lodged a claim for judicial review seeking , inter alia , a declaration that the application to enforce the default term did not constitute an abuse of process and a declaration that the application to enforce the default term did not constitute a breach of section CARDINAL of the CARDINAL Act .

On DATE the ORG granted leave in respect of ORG application . The CARDINAL claims were later joined and consideration of the applicant ’s request for leave was adjourned for consideration by the full court at the substantive hearing in ORG claim .

On DATE a hearing took place in both claims . The court heard argument from counsel for both parties . At the conclusion of the hearing , ORG granted ORG application for judicial review , refused the applicant ’s application for permission to apply for judicial review and indicated that it would hand down a reasoned judgment in due course .

On DATE ORG resumed the hearing of ORG application . LOC ordered the applicant to serve the DATE term .

On DATE ORG handed down its reasoned judgment in the judicial review claims . It noted that this was not a case where it was being suggested that there had been “ a deliberate abuse ” of the extradition proceedings or that the NORP authorities were deliberately misled or that the extradition proceedings were improperly manipulated .

The court held that it was entirely satisfied that the default term formed part of the original sentence , since it was an integral part of the confiscation order which , it was common ground , was unarguably part of the original sentence . It considered the argument that enforcement of the default term involved proving the commission of a further separate offence to be wholly artificial and had no hesitation in rejecting it .

As to the applicant ’s alternative argument that if the default term did form part of the original sentence and proceedings to enforce it were a process in which the applicant would be dealt with for the original offences , then there should be a mechanism for dealing with the express reservation of the NORP authorities , the court was again satisfied that there was no substance in this submission , and held that the NORP reservation was the result of their misunderstanding of the extent of GPE “ clearly expressed request ” .

The court summarised the various exchanges between the NORP and NORP authorities prior to the applicant ’s extradition and agreed with counsel for ORG that the NORP diplomatic note of DATE , read as a whole , made it perfectly clear that extradition was not required in respect of any charge of non - payment of the confiscation order , since there was no such actual or proposed charge because the order in question formed part of the sentence imposed for the offences of which the applicant had been convicted and in respect of which his extradition was being sought . It continued :

“ In other words , it was not necessary to seek extradition specifically for the non - payment because the confiscation order was merely part of the sentence for the offences for which he was to be extradited and was not a separate charge in its own right . ”

It concluded that the imposition of the default term would offend neither the rule of specialty in section CARDINAL of the CARDINAL Act nor under LAW .

As to the argument that the enforcement of the default term constituted an abuse of process , the court found :

“ CARDINAL . ... In the light of our decision that there is no infringement of the rule of specialty in this case , we have come to the firm conclusion that there is no abuse of process involved in proceeding to enforce the default term against PERSON in the circumstances of this case , notwithstanding the misunderstanding of the position by the NORP authorities and their expressed reservation . ”

It concluded that the decisions and comments of the NORP courts in respect of the default term for non - payment of the confiscation order were simply not binding on the courts of GPE and the rule of specialty had not been infringed . For the reasons given , the court was satisfied that GPE had not deliberately misled the NORP authorities , that it had always made its intentions clear and that there had been no improper or unfair manipulation of the processes of extradition or for the enforcement of the default term .

On DATE the applicant applied to ORG for certification of points of law of general public importance and for leave to appeal against the judgment of ORG . On DATE the court refused the applications .

On DATE , by letter to ORG , ORG reiterated :

“ By means of the diplomatic note dated DATE , the ORG sent the ORG [ ORG and Police ] a letter from the NORP authorities showing that extradition was not required for the non - payment of the confiscation order . In accordance with this letter , this aspect has been withdrawn from the extradition proceedings and has not been dealt with in the decision . Therefore , extradition has not been granted for the non - payment of the confiscation order . ”

ORG indicated that if the NORP authorities had enforced the DATE default term of imprisonment for non - payment of the confiscation order , this would amount to a breach of the rule of specialty .

In DATE , as a result of early release provisions , the applicant reached his release date in respect of the DATE term of imprisonment imposed for the extradition offence . He is currently in detention pursuant to the default term of imprisonment imposed in respect of the non - payment of the confiscation order .

DATE . On DATE ORG in GPE forwarded a Diplomatic Note to ORG reiterating its contention that the activation of the default term did not violate the principle of specialty .

On DATE ORG responded to the Note . It indicated that it disagreed with the interpretation of the NORP authorities and courts of the rule of specialty and reiterated that in its view subjecting the applicant to the default term of imprisonment violated that rule . It requested the NORP authorities either to request an extension of their extradition request pursuant to LAW see paragraph CARDINAL below ) or to release the applicant .

At the relevant time , section CARDINAL of LAW DATE ( “ the DATE LAW ) provided for the making of confiscation orders . It imposed a duty on the court where the possibility of imposing a confiscation order arose to act as follows before sentencing :

“ ( CARDINAL ) The court shall first determine whether the offender has benefited from any relevant criminal conduct .

( CARDINAL ) ... if the court determines that the offender has benefited from any relevant criminal conduct , it shall then–

( a ) determine ... the amount to be recovered in his case by virtue of this section , and

( b ) make an order under this section ordering the offender to pay that amount . ”

The effect of CARDINAL of LAW and section CARDINAL of ORG ) Act DATE was that if ORG imposed a confiscation order , it could make an order allowing time for the payment of the amount of the fine . It was also required to make an order fixing a term of imprisonment which the subject of the fine was to undergo if any sum which he was liable to pay was not duly paid or recovered .

Section CARDINAL(CARDINALA ) of the DATE Act provided :

“ Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order , his serving that term does not prevent the confiscation order from continuing to have effect , so far as any other method of enforcement is concerned . ”

The provisions on confiscation orders in LAW were repealed and replaced on DATE by LAW . The changes are not relevant to the present case .

Section CARDINAL of LAW DATE ( as amended ) deals with the meaning of “ sentence ” . It provides :

“ ( CARDINAL ) In this Act ‘ DATE , in relation to an offence , includes any order made by a court when dealing with an offender including , in particular–

( e ) a confiscation order under Part VI of LAW DATE ... ”

Section CARDINAL of the Magistrates’ Court Act DATE gives ORG the power to issue a warrant of commitment to activate the default sentence imposed by ORG in the event of non - payment .

Under NORP law , an obligation on an individual to pay a certain sum of money can arise in civil , administrative or criminal law .

In the context of such obligations arising under civil or administrative law , no penalty can be imposed on a debtor in default other than ordinary enforcement proceedings to obtain the forced sale of the debtor ’s assets in order to extinguish the debt and any applicable interest .

In the context of criminal law , a person may be required to pay a sum of money by way of a fine following conviction for a criminal offence . If the fine is unpaid , the party in default will receive an equivalent prison sentence , which extinguishes the fine . If a convicted person has financially benefited from a criminal offence , a compensatory claim equivalent to the benefit can be imposed . In case of default , the relevant sum is recoverable under NORP law on debt enforcement and bankruptcy . There is no provision for a term of imprisonment to be served in default .

At the relevant time , the applicant ’s extradition was governed by section CARDINAL of LAW DATE . Section CARDINAL applied if a person was extradited to GPE from certain GPE ( including GPE ) . Section CARDINAL(CARDINAL ) provided :

“ The person may be dealt with in GPE for an offence committed before his extradition only if–

( a ) the offence is one falling within subsection ( CARDINAL ) , or

( b ) the condition in subsection ( CARDINAL ) is satisfied . ”

Subsection ( CARDINAL ) defined relevant offences as :

“ ( a ) the offence in respect of which the person is extradited ;

( b ) an offence disclosed by the information provided to the [ extraditing ] ... territory in respect of that offence ;

( c ) an offence in respect of which consent to the person being dealt with is given on behalf of the [ extraditing ] territory . ”

The condition set out in subsection ( CARDINAL ) was that :

“ ( a ) the person has returned to the territory from which he was extradited , or

( b ) the person has been given an opportunity to leave GPE . ”

Section CARDINAL(CARDINAL ) clarified that a person is “ dealt with ” in GPE for an offence if he is tried there for it or he is detained with a view to trial there for it .

As of DATE , section CARDINAL of the CARDINAL Act was replaced by section CARDINAL , in similar terms .

LAW DATE ( “ the ECE ” ) governs extradition between GPE and GPE . Under LAW :

“ The Contracting Parties undertake to surrender to each other , subject to the provisions and conditions laid down in this LAW , all persons against whom the competent authorities of the requesting ORG are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order . ”

Article CARDINAL deals with the need for dual criminality and provides that extradition is to be granted in respect of offences punishable under the laws of both the requesting ORG and the requested ORG .

Article CARDINAL deals with the principle of specialty :

“ CARDINAL . A person who has been extradited shall not be proceeded against , sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited , nor shall he be for any other reason restricted in his personal freedom , except in the following cases :

a. when the ORG which surrendered him consents . A request for consent shall be submitted , accompanied by the documents mentioned in LAW and a legal record of any statement made by the extradited person in respect of the offence concerned . Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention ;

b. when that person , having had an opportunity to leave the territory of the ORG to which he has been surrendered , has not done so within DATE of his final discharge , or has returned to that territory after leaving it .