No violation of Art. 8;No violation of P1-1;No violation of Art. 6-1;No violation of Art. 14

Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza

The applicant is a Gypsy by birth . Since her birth she has travelled constantly with her family , mainly in the GPE area , in search of work . When she married , the applicant and her husband continued to live in caravans . They have CARDINAL children .

The applicant and her husband used to stop for as long as possible on temporary or unofficial sites while he found work as a landscape gardener . They stayed for DATE on an unofficial site in GPE . They travelled for DATE in the ORG area . They were on the waiting list for a permanent site but were never offered a place . They were constantly moved from place to place by the police and representatives of local authorities . Their children 's education was constantly interrupted because they had to move about .

Due to harassment while she led a travelling life , which was detrimental to the health of the family and the education of the children , the applicant bought a piece of land in DATE with the intention of living on it in a mobile home . The land is within the area of ORG in GPE where there is no official Gypsy site . The applicant alleges that a ORG official had told her in DATE when she was encamped on the roadside that if she bought land she would be allowed to live on it . The Government state that there is no record of such a promise being made and that it would be unlikely that such a promise would be made , since it would be for ORG , not ORG , to decide any application . The land was also subject to a DATE discontinuance order requiring the site not to be used for the stationing of CARDINAL caravans .

The applicant and her family moved on to the land and applied for planning permission . This was to enable the children to attend school immediately . ORG refused the application for planning permission on DATE and served enforcement notices .

Appeals were lodged against the enforcement notices . In DATE a public inquiry was held by an inspector appointed by ORG . He dismissed the appeal and upheld the decision of the ORG as the land was in FAC and he considered that the national and local planning policies should override the needs of the appellant . Since there was no official Gypsy site in the CARDINAL LOC district the family was given DATE to move from their land , the ORG having stated that a suitable location was being sought for them and that they would be able to move to a new official site within DATE .

When the DATE period expired , the family remained on the site since they had nowhere else to go . The applicant applied for planning permission for a bungalow , as it had been stated at the public inquiry that this would be a more appropriate use of the land than a mobile home . Planning permission was refused and the ORG 's decision was upheld at a further local inquiry . The family remained on the site and the ORG served summonses on the applicant and her husband for failure to comply with an enforcement notice . On DATE they were both fined MONEY ( GBP ) , with costs of GBP CARDINAL in the Magistrates ' Court . On DATE they were again fined , this time GBP CARDINAL each , with costs of GBP CARDINAL . To avoid further court action , the family returned to a nomadic life and were constantly moved from place to place by ORG officials . The applicant 's eldest daughter had started a hairdressing course at a college of further education and the second daughter was about to start studying at college for a diploma in forestry . Both of these courses had to be abandoned and the CARDINAL younger children could no longer attend school .

During this period the applicant made a further planning application for a bungalow on her land . Again her application was refused and failed after an inquiry . In DATE the applicant and her family returned to their land in a caravan . Enforcement notices were issued by ORG . The applicant appealed against them and there was a planning inquiry on DATE .

By a decision letter of DATE , the inspector dismissed the appeal . In his decision , he stated , inter alia :

“ CARDINAL . Local policies in GPE of DATE , as revised by LAW of DATE and the CARDINAL LOC of DATE , reaffirm that PERSON and the surrounding countryside lie within FAC ... The Structure Plan contains policies also on ORG and Gypsy sites . ORG shows that the site lies outside the core of the village , but within an ORG and also , within an Area of Great Landscape Value , now , by virtue of ORG , termed a LOC .

The appeal site is a deep plot of QUANTITY ha on the frontage of PERSON which leads from PERSON , a village in the Metropolitan Green Belt ; past the site to the west are a few dwellings , a nursery and LOC . ...

From the evidence before me and from my inspection of the site and the surrounding area it is clear to me that the principal issues in these matters are , first , whether the developments for which permissions are sought would be appropriate within FAC and , second , whether there are any very special circumstances in your client 's cases which would outweigh the general strong presumption against inappropriate development in LOC .

Structure Plan policies presume against planning permission in LOC , except in very strong circumstances , for the construction of new buildings , including residential caravans , or certain other specified categories of development . Para . CARDINAL of Planning Policy Guidance CARDINAL – Green Belts – states that , inside a Green Belt , approval should not be given , except in very special circumstances , for other than certain categories of appropriate developments . The previous paragraph emphasises the national presumption against inappropriate development within ORG .

The latest national guidance , in Circular DATE , on ORG states in the introduction that a main intention of the document is to withdraw the previous guidance indicating that it may be necessary to accept the establishment of gypsy sites in protected areas , including GPE sites . LAW goes on to say that gypsy sites are not regarded as being amongst those uses of land which are normally appropriate in FAC .

None of [ the applicant 's ] projects fall within the categories identified as exempt from national or local assumptions against inappropriate development in GPE . ...

I hold the very firm conviction that none of the developments referred to in these notices could properly and reasonably be regarded as appropriate in the terms of strong national guidance or long established local policies which all seek to protect the value of the LOC designation of the area .

This site is in a part of ORG , near to a motorway and particularly vulnerable to development pressure . In my judgment the local and national worthwhile policies that seek to protect the Green Belt would undoubtedly be frustrated for a main purpose of ORG is to protect the surrounding countryside from further encroachment .

As for alternative accommodation for [ the applicant ] , I was referred to the statutory duty of ORG to provide a site for [ the applicant ] , who is a gypsy resident in the area , to place her caravan ; DATE after statutory requirement to provide better living conditions for gypsies there were not sufficient sites in GPE . The ORG would save public money by letting [ the applicant ] remain here and not put another caravan on the roadside ; there had never been an official gypsy caravan site in the District , which , in consequence , had not acquired the benefit of a statutorily designated area .

[ The applicant ] also said that ORG were under a Direction from the Secretary of ORG for the Environment , under section CARDINAL of LAW of DATE to provide further accommodations for gypsies in the LOC , but ORG were not able to confirm progress to establish a CARDINAL pitch gypsy caravan site at GPE , GPE . ...

I note that the ORG did not refute [ the applicant 's ] comment on caravan site provision in the area , but I do not accept her argument as of sufficient weight to overturn , in the absence of very special circumstances , the cogent planning argument against inappropriate development in LOC here .

Your client said that the site had been tidied ; rubbish , undergrowth and some neglected buildings had been removed ; a building had been renovated . ... The caravans are set further back on the site and partly screened by the previously erected large brick building ; moreover they were considerably less conspicuous than the previous mobile home which was stationed close to PERSON . ... As for the caravans , your client said that there were few places from which they are likely to be seen by very many members of the public , apart from drivers on PERSON whose attention was likely to be on traffic conditions .

I attach more weight to the fact that this site lies in an attractive setting of mainly sporadic dwellings in extensive grounds and in a designated LOC . To the north - west is the built - up area of the village and to the south - west attractive open countryside in LOC ; it was agreed that the area is popular for recreational walking and riding .

I do not consider that the arguments put forward by [ the applicant ] would justify allowing residential development of this site . I find no reason to differ from the conclusions of my predecessors who considered that it would be wrong to grant permission for this site in a part of ORG which is particularly vulnerable to development pressure . Whatever the conditions attached to specific grants of permission , stationing a residential caravan here would detract significantly from the quiet rural character and appearance of the site . As well as the caravan itself and the external signs of occupation there would be the activities associated with a family on the site and the comings and goings inevitable with the residential occupation .

There is another factor which reinforces , to my mind , rejection of [ the applicant 's } appeals . Whilst the local planning authority has to consider every application on its merits at the time , these projects , if allowed , would be very likely to encourage similar schemes . The ORG would undoubtedly find it more difficult to refuse such other schemes , with this site as a precedent , and those additional developments would cause significant harm to interests of acknowledged importance , which I consider to be unacceptable .

At the inquiry in DATE , following enforcement action , the ORG told that ORG that a suitable location for a gypsy caravan site was being sought ; [ the applicant ] would be able to move to the new site within DATE . ...

It appears that little progress has been made since the appeal in DATE . LAW and DATE above indicate that the information given in DATE to the ORG about the provision of gypsy caravan sites in GPE was optimistic ; estimates among ORG officers apparently varied DATE .

I note the ORG 's statement that [ the applicant ] had not shown interest in a pitch on a ORG caravan site but , to my mind , other factors militate against their argument . First , it is not unreasonable for [ the applicant ] to wait the outcome of these appeals ; second , [ the applicant ] might not unreasonably have declined to make an application for a caravan pitch site provided by the ORG , for , as agreed at this inquiry , she has no prospect of obtaining one . ...

... As I believe [ the applicant ] to have no better prospect now of obtaining another pitch than in DATE , I shall in the exceptional circumstances of this case , vary the notice , as before , to specify a period of DATE for compliance with it . ”

The applicant 's father , aged DATE , who suffers from senile dementia , now lives with the applicant as he needs constant care and has no one else to look after him . He receives DATE injections from a doctor . The applicant , who has suffered bereavement in respect of her son and grandson since DATE , suffers from depression and has a heart condition . Her husband receives treatment from his doctor and the hospital for arthritis . The applicant 's children , previously living on the site , have moved away .

There are no local authority sites or private authorised sites in the CARDINAL LOC district . However , the ORG submit that there are local authority and authorised private sites elsewhere in the same county of GPE , which contains CARDINAL local authority sites which can accommodate CARDINAL caravans .

According to the draft ORG applied by the ORG to planning , policy PERSON specifies that the LOC area covers the entire CARDINAL LOC district save for defined urban areas and GB.CARDINAL specifies that with the exception of the villages planning permission for development was to be refused except in very special circumstances .

ORG DATE ( as amended by LAW DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section DATE ) . 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 ) .

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 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 PERSON the GPE , judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . 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 ) .

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 relevant considerations ( section CARDINAL ) of LAW ) .

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 .

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 .

Where any steps required to be taken by an enforcement notice are not taken within the specified time - limit , the local authority may enter the land to take the required steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .

The purpose of Green Belts and the operation of the policy to protect them is set out in national policy document PPG CARDINAL ( DATE ) .

“ CARDINAL . The Government attaches great importance to GPE , which have been an essential element of planning policy for DATE . ...

The fundamental aim of LOC policy is to prevent urban sprawl by keeping land permanently open ; the most important attribute of ORG is their openness . Green Belts can shape patterns of urban development at sub - regional and regional scale , and help to ensure that development occurs in locations allocated in development plans . They help to protect the countryside , be it in agricultural , forestry or other use . They can assist in moving towards more sustainable patterns of urban development .

There are CARDINAL purposes of including land in GPE :

– to check the unrestricted sprawl of large built - up areas ;

– to prevent neighbouring towns from merging into one another ;

– to assist in safeguarding the countryside from encroachment ;

– to preserve the setting and special character of historic towns ; and

– to assist in urban regeneration by encouraging the recycling of derelict and other urban land .

NORP The essential characteristic of GPE is their permanence . Their protection must be maintained as far as can be seen ahead .

The general policies controlling development in the countryside apply with equal force in Green Belts but there is , in addition , a general presumption against inappropriate development within them . Such development should not be approved , except in very special circumstances . ...

Inappropriate development is , by definition , harmful to LOC . It is for the applicant to show why permission should be granted . Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness , and any other harm , is clearly outweighed by other considerations . In view of the presumption against inappropriate development , the Secretary of ORG will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development .

Part II of LAW DATE ( “ the DATE LAW ) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to GPE as a result of planning and other legislation and social changes in the post - war years , in particular the closure of commons carried out by local authorities pursuant to section CARDINAL of GPE and ORG DATE . LAW of LAW defined “ NORP ” 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 ” .

NORP The Secretary of ORG could direct local authorities to provide caravan sites where it appeared to him to be necessary ( section CARDINAL ) .

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 , LAW 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 .

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 “ the FAC ” ) .

Sir PERSON estimated that there were approximately CARDINAL NORP living in GPE and GPE . He found that :

“ DATE 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 . DATE 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 .

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 .

Circular CARDINAL/CARDINAL , which was issued on DATE , stated , inter alia , that “ it would be to everyone 's advantage if as many NORP as possible were enabled to find their own accommodation ” , and thus advised local authorities that “ the special need to accommodate GPE ... should be taken into account as a material consideration in reaching planning decisions ” .

In addition , CARDINAL were spent under a scheme by which PERCENT grants were made available to local authorities to cover the costs of creating Gypsy sites .

Section CARDINAL of the Criminal Justice and LAW DATE ( “ the DATE LAW ) , which came into force on DATE , repealed sections QUANTITY toCARDINAL of LAW and the grant scheme referred to above .

Section CARDINAL 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 ) .

In the case of NORP v. ORG , ex parte Atkinson ( DATE ) , PERSON referred to LAW as “ NORP ” legislation . He commented that :

“ For DATE the commons of GPE provided lawful stopping places for people whose way of life was or had become nomadic . Enough common land had survived DATE of enclosure to make this way of life still sustainable , but by s.CARDINAL of ORG and ORG DATE local authorities were given the power to close the commons to travellers . This they proceeded to do with great energy , but made no use of the concomitant powers given them by s.CARDINAL of the same Act to open caravan sites to compensate for the closure of the commons . By DATE , therefore ORG legislated to make the s.CARDINAL power a duty , resting in rural areas upon county councils rather than district councils . ... For DATE there followed a history of non - compliance with the duties imposed by the Act of DATE , marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty , to apparently little practical effect . The default powers vested in central government to which the court was required to defer , were rarely , if ever used .

The culmination of the tensions underlying the history of non - compliance was the enactment of ... the Act of DATE ... ”

New guidance on Gypsy sites and planning , in the light of LAW , was issued to local authorities by the government in FAC ( DATE ) , which cancelled ORG CARDINAL/CARDINAL ( see above ) .

Councils were told :

“ 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 . ” ( paragraph CARDINAL )

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 . ... ” ( paragraph CARDINAL )

It was indicated that as a rule it would not be appropriate to make provision for Gypsy sites in areas of open land where development was severely restricted , for example Areas of Outstanding Natural Beauty and Sites of Special Scientific Interest . Nor were Gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt ( paragraph CARDINAL ) .

Further guidance issued by the Secretary of ORG dated DATE concerned the unauthorised camping of GPE and the power to give a direction to leave the land ( see LAW above ) . Paragraphs CARDINAL to CARDINAL required local authorities to adopt “ a policy of toleration towards unauthorised gypsy encampments ” :

“ CARDINAL . ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which can not be effectively controlled , an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance . Accordingly , authorities should consider tolerating gypsies ' presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites , for example by providing basic services for gypsies e.g. toilets , a skip for refuse and a supply of drinking water .

Where gypsies are unlawfully camped on Government - owned land , it is for the local authority , with the agreement of the land - owning ORG , to take any necessary steps to ensure that the encampment does not constitute a hazard to public health . It will continue to be the policy of the Secretaries of ORG that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance .

The Secretaries of ORG continue to consider that local authorities should not use their powers to evict gypsies needlessly . They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land . ”

Paragraphs CARDINAL further require local authorities to consider their obligations under other legislation before taking any decisions under LAW . These obligations include their duties concerning pregnant women and newly - born children , the welfare and education of children and the housing of homeless persons . In a judgment of CARDINAL DATE ( NORP v. ORG , ex parte Atkinson , NORP v. ORG , ex parte GPE , and NORP v. ORG , ex parte GPE , unreported ) , ORG held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages .

In a letter dated CARDINAL DATE , ORG drew to the attention of all local planning authorities in GPE that Circular CARDINAL/CARDINAL required local planning authorities to assess the need for Gypsy accommodation in their areas and make suitable locational and/or criteria - based policies against which to decide planning applications . The government was concerned that this guidance had not been taken up . ORG research ( see below ) had shown that PERCENT of local authorities ( CARDINAL ) had no policy at all on Gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on Gypsy provision . It was emphasised that it was important to include consideration of Gypsy needs at an early stage in drawing up structure and development plans and that detailed policies should be provided . Compliance with this guidance was essential in fulfilling the ORG 's objective that NORP should seek to provide their own accommodation , applying for planning permission like everyone else . It was necessary , therefore , that adequate Gypsy site provision be made in development plans to facilitate this process .

ORG for ORG and other Travellers ( ACERT ) which had carried out research sponsored by ORG , noted in this report that since DATE private site provision had increased by CARDINAL caravans per year while the pace of public site provision had declined by CARDINAL caravans , disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision . Noting the increase of NORP in housing and the increased enforcement powers under LAW , it questioned , if these trends continued , the extent to which the ethnic , cultural and linguistic identity of Gypsies and Travellers would be protected .

NORP The research looked , inter alia , at CARDINAL refused private site applications , which showed that PERCENT related to land within the countryside and that PERCENT were refused on grounds relating to the amenity value ( for example , PERSON , conservation area locations ) . For most of the CARDINAL Gypsy site applicants interviewed , obtaining permission for their own land was an important factor in improving the quality of life and gaining independence and security . For many , the education of their children was another important reason for private site application . All save CARDINAL had applied for permission retrospectively .

The report stated that the success rate in CARDINAL planning appeals before DATE had averaged PERCENT but had decreased since . Having regard , however , to the way in which data was recorded , the actual success rate was probably PERCENT , being the figures given in DATE and DATE by the ORG and ORG respectively . Notwithstanding the objectives of planning policy that local authorities make provision for NORP , most local authorities did not identify any areas of land as suitable for potential development by NORP and reached planning decisions on the basis of land - use criteria in the particular case . It was therefore not surprising that most NORP made retrospective applications and that they had little success in identifying land on which local authorities would permit development . The granting of permission for private sites remained haphazard and unpredictable .

In DATE ORG figures on Gypsy caravans in GPE disclosed that of CARDINAL caravans counted , CARDINAL were stationed on local authority pitches , CARDINAL on privately owned sites and CARDINAL on unauthorised sites . Of the latter , CARDINAL Gypsy caravans were being tolerated on land owned by non - Gypsies ( mainly local authority land ) and CARDINAL Gypsy caravans tolerated on land owned by NORP themselves . On these figures , CARDINAL caravans were therefore on unauthorised and untolerated sites while over PERCENT of caravans were stationed on authorised sites .

Local authority duties to the homeless were contained in Part VII of LAW , which came fully into force on DATE . Where the local housing authority was satisfied that an applicant was homeless , eligible for assistance , had a priority need ( for example , the applicant was a person with whom dependant children resided or was vulnerable due to old age , physical disability , etc . ) and did not become homeless intentionally , the authority was required , if it did not refer the application to another housing authority , to ensure that accommodation was made available to the applicant for a minimum period of DATE . Where an applicant was homeless , eligible for assistance and not homeless intentionally , but was not a priority case , the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure accommodation .

This convention , opened for signature on DATE , provides , inter alia :

The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights , and as such falls within the scope of international co - operation .

The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law . In this respect , any discrimination based on belonging to a national minority shall be prohibited .

The Parties undertake to adopt , where necessary , adequate measures in order to promote , in all areas of economic , social , political and cultural life , full and effective equality between persons belonging to a national minority and those belonging to the majority . In this respect , they shall take due account of the specific conditions of the persons belonging to national minorities .

The measures adopted in accordance with paragraph CARDINAL shall not be considered to be an act of discrimination .

The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture , and to preserve the essential elements of their identity , namely their religion , language , traditions and cultural heritage .

Without prejudice to measures taken in pursuance of their general integration policy , the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation . ”

The convention entered into force on DATE . GPE signed the convention on the date it opened for signature and ratified it on DATE . It entered into force for GPE on DATE . By DATE , it had been signed by CARDINAL of ORG CARDINAL member GPE and ratified by CARDINAL .

The convention does not contain any definition of “ national minority ” . However , GPE in its report of DATE to the advisory committee concerned with the convention accepted that NORP are within the definition .

Recommendation CARDINAL ( DATE ) of ORG on NORP in LOC included the recognition that GPE , as one of the very few non - territorial minorities in LOC , “ need special protection ” . In its general observations the ORG stated , inter alia :

“ CARDINAL . Respect for the rights of NORP , individual , fundamental and human rights and their rights as a minority is essential to improve their situation .

Guarantees for equal rights , equal chances , equal treatment and measures to improve their situation will make a revival of PERSON language and culture possible , thus enriching the NORP cultural diversity . ”

Its recommendations included :

“ xv . NORP member states should alter national legislation and regulations which discriminate directly or indirectly against NORP ; ”

“ xviii . further programmes should be set up in the member states to improve the housing situation , education ... of those NORP who are living in less favourable circumstances ; ... ”

In DATE ORG against Racism and Intolerance adopted General Policy Recommendation no . CARDINAL : Combating racism and intolerance against Roma / Gypsies . Its recommendations included :

“ to ensure that discrimination as such , as well as discriminatory practices , are combated through adequate legislation and to introduce into civil law specific provisions to this end , particularly in the fields of ... housing and education ;

to ensure that the questions relating to ' travelling ' within a country , in particular regulations concerning residence and town planning , are solved in a way which does not hinder the way of life of the persons concerned ; ”

On DATE ORG adopted a ORG on the situation of NORP in the Community ( Official Journal of ORG no . C CARDINAL/CARDINAL of CARDINAL DATE ) , calling on the governments of member GPE “ to introduce legal , administrative and social measures to improve the social situation of NORP and Travelling People in LOC ” ; and recommending that “ the ORG , the ORG and the governments of member GPE should do everything in their power to assist in the economic , social and political integration of NORP , with the objective of eliminating the deprivation and poverty in which the great majority of LOC 's Gypsy population still lives at the present time ” .

Protection of minorities has become one of the preconditions for accession to ORG . In DATE ORG adopted “ Guiding Principles ” for improving the situation of GPE in candidate countries , based expressly on the recommendations of ORG on ORG and those of the OSCE High Commissioner on ORG .

The situation of GPE and PERSON has become a standard item on the “ human dimension ” section of the agenda of LOC review conferences . CARDINAL structural developments – ORG ( ORG ) and the appointment of a High Commissioner on ORG also concerned protection of GPE and PERSON as minorities .

On DATE the High Commissioner 's report on the situation of GPE and PERSON in the LOC area was published . Part IV of the report dealt with the living conditions of GPE , noting that while nomadism had been central to NORP history and culture a majority of GPE were now sedentary ( CARDINAL estimation gave PERCENT as nomadic , PERCENT as semi - nomadic , moving DATE , while PERCENT were sedentary ) . This was particularly true of central and eastern LOC , where there had been policies of forced sedentarisation in the past :

“ It must be emphasised that whether an individual is nomadic , semi - nomadic or sedentary should , like other aspects of his or her ethnic identity , be solely a matter of personal choice . The policies of some LOC participating GPE have at times breached this principle , either by making a determination of a group 's fundamental lifestyle that is inconsistent with its members ' choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity . ” ( pp . CARDINAL )

NORP The report stated that for those GPE who maintained a nomadic or semi - nomadic lifestyle the availability of legal and suitable parking sites was a paramount need and precondition to the maintenance of their group identity . It observed , however , that even in those countries that encouraged or advised local authorities to maintain parking sites , the number and size of available sites was insufficient compared to the need :

“ ... The effect is to place nomadic GPE in the position of breaking the law – in some countries , committing a crime – if they park in an unauthorised location , even though authorised sites may not be available . ” ( pp . CARDINAL - CARDINAL )

The report dealt specifically with the situation of NORP in GPE ( pp . CARDINAL - CARDINAL ) . It found :

“ Under current law , NORP have CARDINAL options for lawful camping : parking on public caravan sites – which the ORG acknowledges to be insufficient ; parking on occupied land with the consent of the occupier ; and parking on property owned by the campers themselves . ORG has issued guidance to local authorities aimed at encouraging the last approach . In practice , however , and notwithstanding official recognition of their special situation and needs , many NORP have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property . ... ” ( pp . CARDINAL - CARDINAL ) .

Concerning the planning regime which requires planning permission for the development of land towards the stationing of caravans , it stated :

“ ... This scheme allows wide play for the exercise of discretion DATE and that discretion has repeatedly been exercised to the detriment of NORP . A DATE report by ORG described the prospects of applying for planning permission for a Gypsy site as ' a daunting one laced with many opportunities for failure ' . In DATE , DATE in which the success of application rates was evaluated , it was ascertained that MONEY of applications for planning permission by NORP were denied . In contrast , MONEY of all planning applications were granted during DATE . It is to be noted that , as a category , Gypsy planning applications are relatively unique in so far as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities . As such , virtually all Gypsy planning applications are highly contentious . Nonetheless , the fact remains that there is inadequate provision or availability of authorised halting sites ( private or public ) , which the high rate of denial of planning permission only exacerbates . Moreover , there are indications that the situation has deteriorated since DATE . ... In face of these difficulties , the itinerant lifestyle which has typified the GPE is under threat . ” ( pp . CARDINAL - CARDINAL )

NORP The report 's recommendations included the following :

“ ... in view of the extreme insecurity many GPE now experience in respect of housing , governments should endeavour to regularise the legal status of GPE who now live in circumstances of unsettled legality . ” ( pp . CARDINAL and CARDINAL )


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

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

The applicant ’s wife died on DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . This decision was confirmed by an appeal tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 6-1;No violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in DATE and is currently detained at NORP prison ( GPE ) .

On DATE the applicant , accused together with other persons of various counts of aggravated theft ( including theft in various factories and car theft ) , was arraigned before ORG sitting as ORG .

The prosecution concluded the case on the merits on DATE . It produced further evidence on charges of recidivism on DATE .

NORP The legal qualification of the charges was presented on DATE , on which date ORG started to hear the evidence for the defence .

In a judgment of CARDINAL DATE , ORG acquitted the applicant of CARDINAL of the charges , namely receiving stolen goods and theft of a car . It found the applicant guilty of the remaining CARDINAL charges of theft and sentenced him to CARDINAL years’ imprisonment .

The applicant appealed against his conviction and sentence . CARDINAL of his co - accused appealed , challenging exclusively the reasonableness of their sentence .

The defendants introduced a number of requests for release on bail , for the examination of new witnesses and for leave to present further submissions . This led to the adjournment of the case on several occasions , in particular on DATE and on DATE , dates scheduled for the delivery of the judgment . The examination of the case was suspended from DATE until DATE because the presiding judge was ill .

The delivery of the judgment was scheduled first for DATE , then for DATE ; however , the proceedings were adjourned as some of the accused wished to present further submissions and because the presiding judge had been assigned to a foreign tribunal . By an order of DATE ORG adjourned the proceedings sine die awaiting the outcome of the constitutional claim which the applicant had introduced in the meantime ( see infra , under PERSON “ The applicant ’s constitutional claim ” ) .

NORP The proceedings were resumed after the determination of the applicant ’s constitutional claim , and on DATE ORG gave its final judgment . It reaffirmed that its role was not to interfere with the first court ’s appreciation of the evidence , as long as it was satisfied that the conclusions reached by ORG were lawful and reasonable . In the light of the material before it and having regard to the fact that the applicant had admitted his guilt , ORG confirmed the first - instance judgment .

In the meantime , on DATE the applicant had filed a constitutional claim with ORG ( FAC ) . Invoking LAW CARDINAL of LAW , he complained about the length of the criminal proceedings and alleged that his trial had not been fair .

In a judgment of CARDINAL DATE , ORG dismissed the applicant ’s claim .

ORG observed that no delay could be imputed to the prosecution or to the trial court . The case was a rather complex one , as it involved many counts and a number of accused persons . Moreover , ORG had to hear several witnesses and to obtain many documents . Notwithstanding this , most of the requests for bail were decided on DATE , which was DATE after DATE of the arraignment . Some of the accused failed to appear at several hearings , thus obliging the trial court to adjourn the proceedings . There were also difficulties in controlling the various accused , as their behaviour during the hearings had obstructed the normal course of justice . As some of them did not respect the bail conditions , the police had to take action for the revocation of bail and ORG had to decide on this issue . Some witnesses were untraceable and others , albeit properly summoned , did not attend the sittings . There had been no excessive delay in the inquiries and it had to be taken into account that it was necessary to exhibit the record of the inquiry for every single charge . The prosecution had concluded the case within a reasonable time and the proceedings before ORG were conducted without any unnecessary delay .

As to the proceedings before ORG , they were prolonged because of the great number of claims presented by the defence and the need to obtain several reports from prison officials and/or psychiatric experts on the behaviour of the defendants , with a view to considering the progress they had made while in prison . Apart from the period DATE and DATE , the case was never left dormant .

Therefore , notwithstanding the fact that the case had been pending for DATE , there had been no substantial delay . It was true that most of the delay had been caused by the requests of other accused and not of the applicant himself . However , ORG considered that , the crimes being connected , it would not have been consonant with the proper administration of justice to separate the defendants’ respective situations .

On DATE the applicant appealed against ORG judgment to ORG .

In a judgment of DATE , the latter quashed the impugned judgment in so far as it concerned the applicant ’s complaint relating to the length of the criminal proceedings and declared that there had been a breach of the “ reasonable time ” principle . It also ordered the Attorney General to pay the applicant MONEY ( Lm – PERCENT ) as just satisfaction . It held that each party had to bear its own costs . ORG confirmed ORG judgment for the remainder .

The Constitutional Court considered that there had been some delay at the appeal stage . The case was not particularly complex as the appeals concerned almost exclusively the measure of the penalty . Notwithstanding this , the case remained undecided for DATE and DATE and in DATE it was eventually referred to a new presiding magistrate . Even if it was true that the defendants presented a number of claims which had the effect of slowing down the proceedings , ORG had the duty to ensure that the duration of the trial was not excessive . As most of these claims had been introduced by the other defendants , and not by the applicant himself , there had been a violation of the “ reasonable time ” principle in respect of the latter .


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicant , Mr PERSON , is a NORP national who was born in DATE and is detained at FAC . He was represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Agent , ORG and ORG .

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

On DATE the applicant was arrested on a charge of murder .

On DATE the Bács - Kiskun County Regional Court convicted the applicant , a multiple recidivist , of attempted grave bodily assault and of aggravated murder committed with special cruelty . The court established that the applicant had first severely beaten up his common - law wife . DATE , while they were collecting firewood in a forest , he had again beaten and kicked her , tied her up , hanged her on a tree and then cut her loose , wrapped her face and head with adhesive tape , and finally killed her with a minimum of CARDINAL stabs with a knife . The crime was committed out of jealousy .

The court imposed a life sentence on the applicant , with eligibility for release on parole after DATE , i.e. on DATE . The period spent in pre - trial detention after DATE was credited towards the prison term . When imposing the sentence , the court took into account the applicant ’s previous convictions for violent crimes , as well as the fact that his victim was his common - law wife and the mother of their CARDINAL minor children .

On appeal , on DATE ORG upheld this sentence at a public hearing . This judgment was served on DATE .

On DATE ORG dismissed , without an examination on the merits , the applicant ’s petition for review as inadmissible , since it was incompatible ratione materiae with the relevant provisions of LAW . On DATE his request for re - trial was dismissed .

The LAW provides as follows :

“ ( CARDINAL ) The President of the Republic shall ... exercise the right to grant individual pardon .

( CARDINAL ) The counter - signature of the Prime Minister or the responsible Minister is required for all the measures ... of the President of the Republic listed in paragraph ( CARDINAL ) ... ”

Act No . IV of DATE on LAW provides :

“ The enforcement of the punishment is precluded by ...

c ) a pardon ... ”

Act No . XIX of DATE on LAW provides as relevant :

“ ( CARDINAL ) LAW for pardon ... in respect of suppressing or reducing sanctions not yet executed ... shall be submitted DATE ex officio or on request DATE to the President of the Republic – by the minister in charge of justice .

( CARDINAL ) [ Such a r]equest may be introduced by the defendant , his / her lawyer or ... relative . ...

( CARDINAL ) A [ pardon ] request ... concerning a sanction not yet executed must be introduced to the first - instance trial court .

( CARDINAL ) In the course of the pardon procedure , the court shall obtain ... such personal particulars of the defendant as necessary for the decision on pardon . ”

“ ( CARDINAL ) The court ... shall forward the case documents and the request to the minister in charge of justice . ...

( CARDINAL ) The minister in charge of justice shall forward the request to the President of the LOC even if s / he does not endorse it . ”


The applicant is a GPE national born on CARDINAL DATE . At the time of the events now under examination , he was DATE .

On DATE the applicant was released from a youth custody centre after serving a custodial sentence for rape .

DATE , on DATE , the applicant was again arrested on suspicion of attempted rape . Following his arrest , he admitted the crime to the police .

On DATE the applicant was brought before Judge PERSON , juvenile judge ( kinderrechter ) at ORG ( arrondissementsrechtbank ) , who sat in the capacity of investigating judge ( rechter - commissaris ) . The applicant was assisted by his lawyer . The private association which was the applicant ’s legal guardian was represented by CARDINAL social workers .

The applicant again confessed .

On an application by ORG ( officier van justitie ) , Juvenile Judge PERSON ordered the applicant to be placed in initial detention on remand ( bewaring ) . He also ordered a preliminary investigation ( gerechtelijk vooronderzoek ) with a view to having a psychiatric report drawn up . Neither the applicant nor his lawyer objected .

Again on an application by ORG , Juvenile Judge PERSON , sitting in the capacity of review chamber ( raadkamer ) , made an order for the applicant ’s extended detention on remand ( gevangenhouding ) on CARDINAL DATE . He prolonged this order twice on the occasion of periodic reviews , on DATE and DATE . At no time did either the applicant or his lawyer raise any objection .

In the course of the preliminary investigation , the applicant underwent a psychiatric examination . The resultant psychiatric report recommended that , if the charge were to be proven , the applicant should be sent to an institution for psychiatric treatment ( inrichting voor buitengewone behandeling ) , pursuant to LAW ) , but not punished .

The defence , fearing that the applicant ’s initial confession had been obtained under duress , requested that the CARDINAL police officers who had taken down his initial statement following his arrest be questioned as witnesses . Juvenile Judge PERSON referred the matter to Judge PERSON , Vice - President of ORG and substitute juvenile judge . Judge PERSON questioned the CARDINAL police officers on CARDINAL and DATE . The results were such that the defence did not ask for them to be heard again at the trial .

The preliminary investigation in the present case consisted only of the questioning of the said witnesses and the above - mentioned psychiatric examination .

The applicant received a summons in DATE to appear before ORG Judge PERSON on DATE for trial .

By letter of CARDINAL DATE , DATE before the trial was to take place , the applicant ’s lawyer challenged Juvenile Judge PERSON on the ground that he was not impartial , since he had taken pre - trial decisions concerning the applicant ’s detention on remand .

Juvenile Judge PERSON rejected the challenge as ill - founded on DATE .

The applicant appealed against this decision to ORG , which rejected the challenge on DATE . In its decision ORG considered in detail the relevance of the judgment of ORG in the case of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) . ORG was of the opinion that there was a fundamental difference between the position of a NORP investigating judge and that of a GPE juvenile judge , particularly as far as their independence was concerned . It further held that the FAC judgment did not imply that the performance of the functions of investigating judge and trial judge in the same case constituted a breach of Article CARDINAL para . CARDINAL ( article CARDINAL ) under all circumstances . GPE juvenile criminal procedure provided for an exception to the rule of general criminal procedure prohibiting the combination in a single person of the functions of investigating judge and trial judge ( see paragraph CARDINAL ( a ) below ) . As the juvenile judge had rightly emphasised in his decision , the reason for this was to be found in the pre - eminence of the educational aspect of juvenile criminal law and the importance of optimally co - ordinating the various decisions taken with regard to the minor .

The applicant was eventually tried on DATE , by Juvenile Judge PERSON . He was assisted by his lawyer . CARDINAL of the social workers representing the private association which was the applicant ’s legal guardian was also present and allowed to speak .

Confirming his earlier statements , the applicant admitted the charge , which was then held to be proven in the light of the evidence . In accordance with the recommendation contained in the psychiatric report ( see paragraph CARDINAL above ) , the applicant was committed to an institution for the psychiatric treatment of juvenile offenders pursuant to LAW . He was reminded by the juvenile judge of the right to appeal , but the applicant ’s lawyer , who alone could decide to do so ( see paragraph CARDINAL below ) , did not file an appeal .

In DATE Juvenile Judge PERSON carried out the DATE review required by Article PERSON of LAW to determine whether or not it continued to be in the applicant ’s interests for him to remain in the institution . Apparently neither the applicant nor his lawyer raised any objection to the prolongation of the measure . The applicant was released unconditionally on DATE .

Since DATE it has been the rule in the GPE not to apply penal law and criminal procedure to juveniles in the same way as to adults . Juvenile penal law and criminal procedure provide for exceptions to the general law : that is , general penal law and criminal procedure apply to the extent that they are not expressly deviated from .

Juveniles can not be prosecuted for acts committed before DATE ( Article PERSON of LAW ) .

Juvenile criminal procedure applies if the suspect has not yet reached DATE when a prosecution against him is commenced ( Article CARDINAL of LAW ( PERSON ) ) .

In principle , the same age - limit applies in juvenile penal law ( Article CARDINALb of LAW ) . However , subject to certain conditions , LAW makes it possible on the one hand to apply general penal law to a suspect who at the time of the offence was DATE or DATE ( LAW , ibid . ) , and on the other hand to apply juvenile penal law to a suspect who at the time of the offence had reached the age of DATE but not yet that of QUANTITY ( Article GPE , ibid . ) .

Juvenile penal law is different from that applying to adults only in that it has its own system of punishments ( straffen ) and curative or protective measures ( maatregelen ) designed to meet the specific aims of this branch of criminal law which ( in the words of the Explanatory Note to the Act of DATE - see paragraph CARDINAL below ) " has primarily a pedagogical purpose , the interests of the minor being borne in mind at all times " , and which , accordingly , seeks mainly to protect and educate the juvenile concerned .

Punishments available under juvenile penal law are placement in a youth custody centre ( tuchtschool ) for DATE , juvenile detention ( arrest ) for DATE , a fine of MONEY and a reprimand ( berisping ) ( LAW ) . The measures include , inter alia , judicial supervision ( ondertoezichtstelling ) - which is in fact a protective measure under civil law ( ORG CARDINAL:CARDINAL et seq . of LAW ( PERSON ) ) - and committal to an institution for the psychiatric treatment of young offenders ( Article CARDINALh ) . The latter is a curative measure applied only to young persons with impaired mental development or suffering from a serious mental disturbance ( Article CARDINAL ) .

Juvenile criminal procedure also seeks to protect and educate , but here the differences from general criminal procedure are considerable .

The underlying principle of juvenile criminal procedure is that it

" should be simple and understandable for both the minors concerned and their parents . Formalities which have some purpose for adults but are practically devoid of purpose in relation to minors should be omitted , whereas on the other hand special requirements should ensure proper treatment of juvenile cases " . ( Quoted from the Explanatory Note to the LAW DATE , which Act entered into force in DATE , by which juvenile criminal procedure - introduced in DATE and thoroughly reviewed in DATE - was modernised )

It is by reason of this basic idea and of the need to improve the protection of juveniles by creating links with the protection of juveniles in civil law - in which the juvenile judge is the central actor and is empowered to order various protective measures - that the juvenile judge is the central actor in juvenile criminal procedure also . Several advantages are claimed for this system :

( a ) it is conducive to the protection of the juvenile if the juvenile judge is consulted beforehand on the subject of the desirability of criminal prosecution , especially if he already knows the minor concerned ; this may be the case for example if he has been involved in protective measures under civil law , such as placing the minor under judicial supervision ;

( b ) a relationship of trust may develop between the juvenile judge on the one hand and the minor and his or her parents or guardian on the other owing to the fact that the minor and his or her parents or guardian ( who are summoned to appear at the preliminary investigation stage and the trial and have the right to speak ) are dealt with by one and the same judge throughout the proceedings , which moreover are held in private and in an informal manner ;

( c ) in those cases in which the juvenile has made an immediate confession - as usually happens when the suspect is a minor - a plan may be developed at an early stage for the future of the juvenile concerned , even during the preliminary investigation ;

( d ) the juvenile judge is the most suitable person for the purpose in view of his expert knowledge and his considerable decision - making powers .

The close link between protective measures under civil law and criminal prosecution may be seen in LAW ; if there are proceedings relating to the protection of the minor under civil law ( such as a request to have him or her placed under judicial supervision or aimed at divesting the parents of their parental rights ) running parallel to the criminal prosecution , then under this provision the prosecution may be suspended until a final decision has been taken in those parallel proceedings .

The central position of the juvenile judge appears clearly from the fact that the juvenile judge is involved in the decision whether or not to prosecute . According to LAW , if ORG wishes to drop charges against a minor unconditionally , he must first consult the juvenile judge ; if he wishes to do so conditionally , he requires the juvenile judge ’s consent . If charges are not dropped immediately , ORG must obtain from the child welfare authorities information on the minor ’s personality and living conditions ; they may then comment on the desirability of prosecution ( ibid . , LAW .

In order to implement these provisions effectively , it has been the practice for the juvenile judge , ORG and the representative of the child welfare authorities to meet on a regular basis to discuss case files together . This so - called " CARDINAL - way consultation " ( driehoeksoverleg ) took place in the absence of the minor or his legal representative or counsel , and without their being informed about it .

The juvenile judge is also the central figure in the investigation phase .

( a ) This is clear in the first place from Article CARDINAL of LAW , which stipulates that the juvenile judge is to act as investigating judge , and from LAW , which reads :

" CARDINAL . The juvenile judge shall be responsible for the preliminary investigation , unless the case involves CARDINAL or more suspects who have reached DATE at the moment the prosecution against them is commenced and the case can not , in the initial opinion of ORG and the juvenile judge , be divided .

In cases where the juvenile judge orders a preliminary investigation , he shall be regarded as investigating judge responsible for the preliminary investigation . "

This means that the juvenile judge has all the decision- making powers of an investigating judge and that he is in charge of the preliminary investigation .

A preliminary investigation may involve such matters as obtaining expert opinions and technical evidence , questioning witnesses , mail and telephone interceptions , searches and visits to the scene of the crime , as well as interrogation of the suspect .

According to LAW , a judge who has undertaken any investigation in the case as an investigating judge is debarred from taking part in the trial ; however , by virtue of Article CARDINALd , this provision does not apply in juvenile procedure .

( b ) It is also the juvenile judge who takes all decisions concerning detention on remand . In adult criminal procedure , initial detention on remand ( for a maximum of DATE , which may be prolonged once for DATE ) is ordered by the investigating judge and extended detention on remand ( for a maximum of DATE , which may be prolonged twice for further periods of DATE ) by the review chamber of ORG . In juvenile criminal procedure , the juvenile judge exercises both these powers ; he not only officiates as investigating judge but also , pursuant to Article CARDINAL , as review chamber . CARDINAL consequence of this is that in cases where in adult criminal procedure an appeal against decisions of the investigating judge lies to the review chamber , and to the extent that such appeals are allowed in juvenile procedure , the juvenile judge may be called upon to hear appeals against some of his own decisions .

The central position of the juvenile judge further appears from the fact that it is , as a rule , the juvenile judge himself who , sitting as a single judge , conducts the trial and gives judgment ( Article CARDINAL para . CARDINAL ) . It is for the juvenile judge to decide whether or not the case is one that should be referred to a chamber consisting of the juvenile judge and CARDINAL other judges ( Article CARDINAL para . CARDINAL , in conjunction with Article ORG ) .

The juvenile judge is also involved to a significant degree with the execution of the punishment or measure imposed . For example , a sentence to the punishment of juvenile detention is not executed until the judge who imposed it has been consulted ( LAW ) and the punishment of reprimand is administered personally by the judge who imposed it ( LAW ) .

If the juvenile concerned has not yet reached DATE , then it is his lawyer who enjoys all the procedural rights afforded the suspect by LAW ) instead of the juvenile himself ( with the exception of the rights which the suspect may avail himself of during the hearing ) ( LAW para . CARDINAL ) . However , the juvenile ’s legal guardian ( wettelijke vertegenwoordiger ) may file a note of protest to the president of the court with jurisdiction as to both facts and law before which the juvenile is being prosecuted or was last prosecuted if he disapproves of the lawyer ’s use of these rights or his failure to make use of them ( LAW para . CARDINAL ) .

Pursuant to LAW ( Wet op de Rechterlijke Organisatie ) an appeal against the judgment of the juvenile judge lies to ORG ( gerechtshof ) . Such an appeal involves a complete re - examination of the case by CARDINAL judges ( LAW ) .

For a long time there has been criticism of the system described above . For this reason , a committee for the revision of juvenile criminal law was set up in DATE and it published a report in DATE . Criticism of the existing system in legal writing increased as a result of this report and of the judgments of ORG in the cases of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) and GPE v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) . However , opinion is still divided on the question to what extent it is necessary to modify the present system .

These factors have resulted in informal changes in the way the system operates ( see paragraph CARDINAL below ) and a proposal for a change of the law ( see paragraph CARDINAL below ) . In this connection , it is also useful to mention a development in GPE case - law ( see paragraph CARDINAL below ) .

In the first place , there is now an informal arrangement under which the juvenile judge , when confronted with a suspect who denies charges , entrusts the interrogation of witnesses to another juvenile judge and to that extent does not act as investigating judge . However , even in such cases he continues to take the decisions on detention on remand .

Secondly , " CARDINAL - way consultations " ( see paragraph CARDINAL above ) have been discontinued at ORG .

A proposal for an amendment of the law was sent to ORG in DATE ; the written procedure has not yet been completed . It essentially follows the suggestions of the committee referred to in paragraph CARDINAL above , the gist of which is to remove from the juvenile judge the functions of investigating judge and review chamber . However , the proposal differs from those suggestions in that the juvenile judge is to retain the power to order initial detention on remand .

This last feature corresponds to the case - law of ORG ( PERSON ) , particularly its judgments of DATE , GPE ( PERSON ) DATE , no . CARDINAL and CARDINAL DATE , GPE DATE , no . CARDINAL . In the first - mentioned judgment ORG construed Article CARDINAL of the Code of Criminal Procedure ( see paragraph CARDINAL above ) as meaning that an investigating judge who had not carried out any preliminary investigations but had given the order for initial detention on remand was not debarred from sitting at the trial . This was not held to jeopardise his independence . The judgment of DATE concerned a juvenile judge who sat at the trial pursuant to Article ORG ( see paragraph CARDINAL above ) after he had instituted a preliminary investigation in the case as investigating judge . ORG held that as a result one of the judges taking part in the trial lacked impartiality as required by DATE ( article CARDINAL ) of the Convention . According to ORG , such would always be the case if

" CARDINAL of those judges [ had ] previously had dealings in the same case aimed at the collection of evidence , either as an investigating judge in the course of the preliminary investigation or in another way during the investigations preparing the case " .

As far as the preconditions for initial and extended detention on remand are concerned , juvenile criminal procedure does not differ from adult criminal procedure . They are to be found in CARDINAL and DATE of the Code of Criminal Procedure .

LAW enumerates the cases in which detention on remand ( voorlopige hechtenis ) may be ordered ; for present purposes , these may be summarised as those cases in which a person is suspected of a relatively serious crime ( paragraphs CARDINAL and CARDINAL ) . In addition , paragraph CARDINAL of LAW provides as follows :

" The preceding paragraphs of this Article shall only be applied if it appears from certain facts or circumstances that there are serious indications ( ernstige bezwaren ) against the suspect . "

In this connection , the Memorandum in Reply ( PERSON ) accompanying a proposal for amendment of the statutory provisions governing detention on remand states that there are such serious indications when in the opinion of the investigating judge

" it is prima facie likely ( aannemelijk ) that the suspect has committed the offence in relation to which detention on remand is applied for " . ( see ORG PERSON to ORG -CARDINAL - CARDINAL-No . CARDINAL , page CARDINAL )

Article ORG enumerates the reasons for which detention on remand may be ordered . These may be summarised as the serious risk of the suspect ’s absconding ; the fact that the crime , being of a particularly grave nature , has created considerable social unrest ; the serious risk that the suspect will commit more crimes of a grave nature and the need to secure evidence .

However , paragraph CARDINAL of Article PERSON provides :

" An order for detention on remand shall not be made if there exists a distinct possibility that in the event of conviction no unconditional prison sentence or measure involving loss of liberty will be imposed on the suspect , or that implementation of the order will cause [ the suspect ] to be deprived of his liberty for longer than the duration of the sentence or the measure . "


Violation of Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE the applicants’ DATE daughter , PERSON , underwent heart surgery at ORG in GPE ( GPE ) .

On DATE PERSON was admitted to the same hospital for a postoperative check - up .

On DATE she became feverish and vomited blood . The doctors diagnosed rhinopharyngitis and prescribed antibiotics . On DATE the doctors decided to allow the child to leave the hospital .

In TIME of the same day the applicants telephoned the hospital because PERSON was feverish again .

On DATE the applicants took the child to a doctor , who diagnosed pneumonia , telephoned the hospital and requested that PERSON be admitted to hospital immediately . On arriving at the hospital PERSON was initially taken to the cardiology unit . When she fell into a coma she was transferred to the intensive care unit . The doctors said that she had a serious infection in the left lung , which had weakened her heart .

On DATE PERSON died .

On DATE the applicants lodged a complaint with the PERSON public prosecutor . On DATE an inquiry into the causes of death was opened .

On DATE the investigating judge , Miss PERSON , instructed ORG to seize PERSON ’s medical file and question the members of the medical staff who had looked after PERSON . On DATE ORG reported back to the judge with its incomplete findings .

On DATE the investigating judge ordered an autopsy , which was carried out on DATE . Several tissue samples were taken in case a further examination was needed . The autopsy report , dated DATE , concluded that at the time of PERSON ’s death she had been suffering from an acute respiratory infection .

On DATE the investigating judge commissioned a further anatomopathological report from Professor PERSON , an expert in forensic medicine , and PERSON , a heart specialist , giving them until DATE to submit their report .

On DATE the investigating judge asked them to send her their report by the “ absolute deadline of DATE ” .

From the date of the autopsy onwards the applicants sent numerous letters to the NORP consulate - general in GPE , ORG in GPE and NORP members of ORG with the aim of securing the return of PERSON ’s body .

In GPE a number of MPs put parliamentary questions to the government and held press conferences on the case . Several newspaper articles were published on the subject .

NORP The NORP consul - general made repeated representations to the investigating judge , including letters sent on DATE , DATE and DATE , and forwarded the information he had obtained to the applicants .

In DATE the consul - general made a formal complaint to the public prosecutor , who demanded an explanation from Professor PERSON In a letter of CARDINAL DATE , Professor PERSON replied as follows :

“ The autopsy was carried out on DATE and the investigating judge was immediately notified of the results by telephone . She was told that all the necessary samples of tissue from the internal organs had been taken and that the body could be returned to the family as from DATE .

The internal organs were to be studied subsequently from an anatomopathological viewpoint and this was done on DATE and DATE , but I had also been instructed to examine the medical file and seek the opinion of another expert , which was done on DATE . When the seals were removed it was discovered that the intensive - care file was missing , and so we contacted our colleagues , who sent us a copy of it which we are currently examining .

The medical file is complex and it is essential that we have a certain amount of time to study it , but there is no reason to keep the body at ORG .

The administrative authorities of ORG have repeatedly expressed concern at the length of time the body has been kept in storage . On DATE , CARDINAL DATE and CARDINAL DATE and on DATE they contacted PERSON , the investigating judge at ORG , who is in charge of the case . She said that she was awaiting the outcome of the anatomopathological examination , but the latter is part of a longer task of investigation and analysis which has not yet been completed .

Miss PERSON is therefore completely free to release the body from ORG and hence to sign the burial certificate , leaving the doctors the necessary time to carry out their work . ”

On DATE , on receiving the above letter , the public prosecutor asked the investigating judge to order that PERSON ’s body be returned to her family .

On DATE investigating judge PERSON , standing in for Miss PERSON , issued a burial certificate .

On DATE PERSON was buried at FAC .

On DATE Miss M. wrote to Professor L. , expressing surprise that after DATE the report had not yet been filed and asking him to inform her of any difficulties or obstacles that might explain the failure to do so .

On DATE Professor PERSON replied that there had been “ a problem with a discrepancy between the anatomical observations and the information in the medical file ” , which meant that the experts had had to organise interviews with the doctors who had looked after the child , scheduled for DATE .

The experts’ report was filed on DATE . They concluded that “ there was no possibility of life - saving surgery ” and there were no signs of “ any mistaken treatment ” .

In a letter of DATE a deputy public prosecutor informed the applicants that their case had been dropped because none of the expert reports ordered by the investigating judge had revealed any medical negligence , error of diagnosis or mistaken treatment that could possibly amount to a criminal offence .

Article CARDINAL of the Code of Criminal Procedure provides :

“ On discovery of a dead body , regardless of whether the deceased suffered a violent death , but wherever the cause of death is unknown or suspicious , the senior police officer who is advised thereof shall immediately notify the public prosecutor , promptly visit the place of discovery and make initial observations .

The public prosecutor shall visit the place if he deems it necessary and shall call on the assistance of persons qualified to assess the circumstances in which death took place . He may , however , delegate those tasks to a senior police officer of his choice .

Except where their names appear in one of the lists provided for in LAW , persons appointed in this way shall take a written oath to assist the courts on their honour and according to their conscience .

The public prosecutor may also call for an inquiry to investigate the causes of death . ”