No violation of Art. 8;No violation of P1-1;No violation of P1-2;No violation of Art. 14

Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza

The applicant and his wife are gypsies by birth . They were born and bred in GPE . They have a nomadic lifestyle and have travelled extensively around the south of GPE in pursuit of work and to attend traditional gypsy social gatherings .

NORP Throughout DATE , the applicant was prosecuted frequently for illegal encampment . Over DATE period he claimed to have been evicted from CARDINAL sites . To rectify this situation , in DATE he bought a plot of land which measures QUANTITY .

NORP The applicant ’s land was situated on a hillside of LOC to the east of the village of GPE . The surrounding land was mostly open agricultural land but in the valley bottom there was mineral working and industrial development . The land contained CARDINAL caravans , which were occupied by the applicant , his wife , CARDINAL children and grandchildren . It also had an area for grazing horses and contained a stable . The site was in an area designated within the relevant development plan as a Special Landscape Area where special planning policies applied .

The applicant ’s grandchildren attended school regularly receiving an education that in the past they frequently had not had the opportunity to receive .

The applicant and his family have mainly been employed in agricultural work all their lives . He bought the site with the intention that it would provide a settled home and also a living from market garden produce and horticulture .

On DATE , an enforcement notice was issued by ORG ( “ the ORG ” ) , requiring the applicant to cease the use of the land for the stationing of residential caravans . He was given DATE within which to remove the caravans .

NORP In DATE , the applicant lodged an appeal against the enforcement notice . An Inspector was appointed by the Secretary of ORG for the Environment to determine the appeal .

On DATE , the Inspector , in a decision letter , denied planning permission and dismissed the appeal . He stated inter alia :

“ CARDINAL . From my inspection of the site and the surrounding area and from the written representations I consider that the main issues are whether the impact of the residential caravans on the surrounding area is acceptable having regard to relevant planning policies , and also , if the impact is not acceptable whether the stationing of residential caravans is nevertheless justified by the agricultural needs of the proposed enterprise or by the needs of the CARDINAL gypsy families involved .

There are CARDINAL approved development plans for the area : the DATE Kent Structure Plan ; the DATE Kent Countryside Local Plan ; and the DATE Stour Valley Countryside Plan . Policy SCARDINAL of the Structure Plan imposes a general presumption against development of fresh land in the countryside although policy RSCARDINAL recognises that the needs of agriculture may constitute an exception . However even so policy RSCARDINAL requires that all development shall be appropriate in location and appearance while policies in all the plans provide that in such Special Landscape Areas as this conserving the landscape will normally have priority over other planning considerations .

The site is in a corner of an open field on the southern hillside of LOC and surrounded by agricultural land . In this position it is highly visible at various points along FAC below and from the FAC in the valley bottom . It is also visible from footpaths in the vicinity and particularly from CARDINAL that runs along the back of the site . The group of CARDINAL caravans within the fenced site is a most conspicuous and alien form of development in this exposed rural location and is in conflict with the character and appearance of its surroundings . An attempt has been made to screen the caravans on the hillside by planting evergreens but many have died . However neither screening nor painting the caravans , as offered , is likely to make the development less obtrusive in such an isolated and open situation , and there is no doubt in my mind that it seriously conflicts with the policies designed to conserve and enhance the countryside . ...

... In my opinion , and on the evidence submitted the proposed enterprise < market gardening and horticulture > even taking into account the further land available is not likely to support the CARDINAL families who would be engaged in it so as to justify their living on the site .

As regards the agricultural need for living on the site , I am not satisfied that the type of horticulture outlined demands living on the site ... I do not doubt that the families wish to continue earning their living from agricultural pursuits but the offer to tie their occupation to agriculture ... does not overcome the lack of agricultural need to live on the site which might justify setting aside the strong amenity objection . ...

In support of allowing the development as a gypsy caravan site it is stated that < the applicant > has been evicted from CARDINAL sites over DATE period and was exasperated by the ORG ’s inability to provide suitable sites . He took the opportunity to acquire the present site to provide a permanent home and an income . This < he claims > is in line with the guidance in DOE Circular CARDINAL/CARDINAL which recognises that even in sensitive locations it may be necessary to accept the establishment of caravan sites or to refrain from enforcement actions until sites are available .

The ORG recognise that , despite being a ‘ designated NORP under LAW , there is a shortfall of CARDINAL pitches and further provision needs to be made . A number of sites are being evaluated and in addition the draft local plan contains a policy for permitting gypsies to establish sites on their own land providing it is suitable . The ORG do not consider that the ORG ’s guidance implies that private sites should be allowed without regard to the consequences .

Having considered the evidence , I accept that there is a shortfall of pitches in the GPE area but I recognise too < the applicant ’s > willingness , if not a preference , for providing a small site for the family group and I do not consider it unlikely that a less inappropriate place can be found . While therefore I accept that the loss of the present site would create a need for an alternative , in the circumstances of this case I find that the complete unsuitability of the present site outweighs that need . I have considered whether a temporary permission might be granted for this small group until the ORG ’s provision of other sites comes to fruition and I have taken account of < the applicant ’s > willingness to accept a planning condition restricting the number of caravans on the site so as not to create a precedent for the use of adjoining land . However I can see no way of preventing it from being a precedent if other gypsy families sought to acquire plots of land nearby . ... I am satisfied that even a temporary planning permission could be a signal for the establishment of other sites which would have a very harmful effect on the landscape of this attractive valley . ... ”

The applicant then applied for permission to use the land for DATE stationing of CARDINAL caravans for residential purposes .

On DATE , after having requested the applicant to explain what change in material considerations had taken place , the ORG declined to determine the above application in accordance with LAW DATE . ORG did not consider that there were material differences between the planning application for DATE stationing of caravans and the applicant ’s earlier application .

The applicant now lives under the threat of criminal prosecution and forcible eviction .

While the applicant had been on a number of occasions offered places on official sites , he refused primarily because the sites in question were in a very poor state . CARDINAL site , at GPE was next to a rubbish tip and the other , at FAC , was built on an old sewage bed and adjacent to an operational sewage works and with a steel works adjoining the southern boundary of the site , which operated TIME per day . The applicant stated that they were unfit for human habitation ( photographs were attached to his application in support of his contention ) and that the noise of the steelworks deprived inhabitants of the site of sleep . While the Government disputed before the Commission that the GPE site was unfit for habitation , referring to repairs being carried out when required due to the vandalism of occupants , the Government confirmed at the hearing before the ORG that this site had now closed . The ORG also provided the information that planning permission had been granted for the upgrading and extension of the site at FAC and that a grant was made by the Secretary of ORG for this purpose . The original CARDINAL pitches had now been refurbished , and CARDINAL further pitches added , at a cost of GBP CARDINAL . The ORG had served LAW on the steelworks with a view to improving the residential environment for the gypsy site and discussions were ongoing regarding the creation of a boundary between the CARDINAL sites .

The Government also stated that in DATE in the GPE area there were CARDINAL official sites comprising CARDINAL pitches ( with CARDINAL currently vacant ) and in addition CARDINAL caravans on authorised private sites and CARDINAL caravans on unauthorised private sites . The DATE ORG figures showed however that the number of authorised private sites had dropped from CARDINAL to CARDINAL , the number of public sites fell from CARDINAL to CARDINAL , while the number of unauthorised encampments almost tripled from CARDINAL to CARDINAL .

The applicant stated that planning permission had been given to a non - gypsy to station a caravan on the site adjacent to the applicant ’s . Outline planning permission had also been given for a development of CARDINAL residential units QUANTITY from his site . The Government have provided information and documents concerning both developments .

Temporary planning permission was granted for DATE in DATE for a caravan on a site called ORG . The purpose of this was to enable the owner to establish the viability of his pig unit and the permission limited to occupation by an agricultural worker . Permission was granted recently for a permanent dwelling of the site given the established agricultural need and the owner ’s establishment of the viability of his pig farm . In the ORG ’s decision of CARDINAL DATE , he found that this site did not have as unfortunate effect on the landscape as the applicant ’s , though it did detract from the openness of the countryside and the natural appearance of the landscape .

The Government have also explained that in the DATE ’s a hospital ( PERSON ) , which was a large complex of buildings , closed down and it has been considered by the ORG as suitable for residential development . The outline planning permission was granted to accommodate CARDINAL houses and took into account the need to landscape the site . The applicant provided photographs of his own site and ORG site and the Government provided an aerial photograph identifying the locations of these developments relative to the applicant ’s land .

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 CARDINAL of LAW ) . 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 the 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 material considerations ( section CARDINAL ( 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 by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the 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 ) .

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 gypsies as a result of planning and other legislation and social changes in DATE , in particular the closure of commons carried out by local authorities pursuant to section CARDINAL of GPE and ORG DATE . LAW of LAW defined “ gypsies ” 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 GPE 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 Cripps Report ” ) .

Sir PERSON estimated that there were 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 gypsies through the adoption of a “ sympathetic and flexible approach to [ Gypsies’ ] applications for planning permission and site licences ” . Making express reference to cases where gypsies 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 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 .

Section CARDINAL of the Criminal Justice and LAW DATE ( “ the DATE LAW ) , which came into force on DATE , repealed sections CARDINAL of the DATE Act 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 GPE 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 the DATE Act as “ Draconic ” 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 the DATE Act , was issued to local authorities by ORG in Circular CARDINAL/CARDINAL ( DATE ) , which cancelled ORG CARDINAL/CARDINAL ( see 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 . ” ( para . 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 ... ” ( para . 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 , 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 by gypsies and the power to give a direction to leave the land ( LOC above ) . Paragraphs CARDINAL - 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 PERSON 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 showed 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 gypsies 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 carried out research sponsored by ORG , noted in its DATE 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 gypsies in housing and the increased enforcement powers under the CARDINAL Act , it questioned , if these trends continued , the extent to which the ethnic , cultural and linguistic identity of ORG people 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 ( e.g. Green Belt , conservation area locations ) . Of the CARDINAL gypsy site applicants interviewed , for most acquiring permission for their own land was an important factor in improving the quality of life , gaining independence and providing 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 figures for success rates in CARDINAL planning appeals showed that before DATE the success rate 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 as given as the figures in DATE and DATE by the gypsy groups and ORG respectively . Notwithstanding the objectives of planning policy that local authorities make provision for gypsies , most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land - use criteria in the particular case . It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development . Granting of permission for private sites remained haphazard and unpredictable .

In DATE , ORG figures for caravans in GPE disclosed that of CARDINAL caravans counted , CARDINAL were accommodated 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 gypsies 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 ( e.g. 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 secure that accommodation was available for occupation by 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 that accommodation became available for his occupation .

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

“ Article CARDINAL

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 .

Article CARDINAL

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 .

NORP 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 .

Article CARDINAL

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 LAW 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 ’s CARDINAL member states and ratified by CARDINAL .

The Convention did not contain any definition of “ national minority ” . However GPE in its Report of DATE to ORG concerned with the ORG accepted that gypsies are within the definition .

Recommendation CARDINAL(CARDINAL ) of ORG on NORP in LOC included the recognition that gypsies , 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 :

“ xiv . 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 issued General Policy Recommendation No . CARDINAL : Combating Racism and Intolerance against ORG . 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 ‘ ORG within a country , in particular , regulations concerning residence and town planning , are solved in a way which does not hinder the life of the persons concerned ; ... ”

On DATE , ORG passed a ORG on the situation of NORP in the Community , calling on the governments of member states “ 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 GPE , 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 of Roma / Gypsies and the OSCE High Commissioner on ORG recommendations .

The situation of GPE and PERSON has become a standard item on FAC the agenda of ORG . CARDINAL structural developments - ORG ( ORG ) and the appointment of a High Commissioner for ORG - also concern protection of GPE and PERSON as minorities .

On DATE , the High Commissioner ’s Report on ORG and PERSON in LOC was published . Part PERSON 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 LOC , where there had been in the past policies of forced sedentarization :

“ 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 ORG choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity . ” ( pp . CARDINAL - CARDINAL )

The ORG stated that for those GPE who maintained a nomadic or semi - nomadic lifestyle the availability of legal and suitable parking 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 in light of 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 unauthorized location , even though authorized sites may not be available . ” ( pp . CARDINAL - CARDINAL )

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

“ Under current law , NORP have CARDINAL options for lawful camping : parking on public caravan sites - which the Government 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 ) .

DATE . Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans , it stated :

“ ... This scheme allows wide play for the exercise of discretion - 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 insofar 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 authorized 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 )

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 regularize the legal status of GPE who now live in circumstances of unsettled legality . ” ( pp . CARDINAL and CARDINAL )


Mr PERSON , who is employed by a local medical and welfare centre ( “ the ORG ” ) in GPE , lives in GPE ) .

On DATE he instituted proceedings in ORG ( “ the ORG ” ) for judicial review of a decision of ORG ( ORG regionale ) classifying his post in a lower staff category than the one which corresponded to the duties he actually performed , and claimed on that account payment of the difference in remuneration . On DATE he asked for a date to be fixed for the hearing . He subsequently filed CARDINAL applications ( on DATE , DATE and DATE ) for the case to be set down for an urgent hearing .

On DATE the ORG ordered the ORG to file certain documents . On DATE the ORG gave judgment against the applicant , who , on a date which has not been specified , appealed to the PERSON . The proceedings are still pending .


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

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

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

Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in DATE . Once the banking and monetary systems were on the verge of collapse , the SFRY took emergency measures including legislative restrictions on the repayment of foreign - currency deposits to individuals . Following the dissolution of the SFRY , the statutory guarantees were taken over by the successor GPE .

NORP In DATE GPE and GPE proclaimed GPE ( “ FRY ” ) , the legal predecessor of ORG and GPE ( which was itself proclaimed in DATE ) . In DATE GPE declared its independence , while GPE remained the sole successor of its predecessor ’s states .

In a series of specific acts adopted in DATE , the FRY accepted to convert the foreign currency deposited in these banks , including the bank here at issue , prior to DATE into a “ public debt ” and then went on to set the time - frame and the amounts to be paid back to their former clients ( initially by DATE and then by DATE ) . According to the law of DATE , the said public debt should be the debt of GPE and GPE , respectively , proportionally based on the total amount of savings deposited by the bank ’s clients with a registered residence in each of the republics ( see paragraph CARDINAL below ) . The said laws also explicitly provided that foreign currency related judicial enforcement proceedings against the banks in question were to be discontinued ( see paragraphs CARDINAL and CARDINAL below ) .

On a number of separate occasions in DATE the applicant deposited a significant amount of his foreign currency savings with ORG , a ORG - owned bank based in GPE .

NORP In DATE the said bank refused to release the applicant ’s funds .

On DATE the applicant issued legal proceedings , seeking that his foreign currency deposits be released together with the interest stipulated . ( At the time , the bank in question was already restructured and renamed as the “ ORG - main branch ORG ” . )

On DATE ORG in GPE ruled in favour of the applicant and ordered the bank to pay him MONEY ( “ USD ” ) , MONEY ( “ DEM ” ) and CARDINAL NORP Schillings ( “ ORG ” ) , together with the interest due and the legal costs .

On DATE this judgment was upheld on appeal by ORG and thereby became final .

On DATE and DATE , the applicant sent CARDINAL separate letters to the bank in question requesting payment within DATE , pursuant to the final judgment of ORG .

Having apparently received no response , on DATE he instituted formal enforcement proceedings before ORG in GPE .

On DATE ORG adopted an enforcement order against the respondent bank and , on DATE , rejected the bank ’s complaint against it .

On DATE the Government of GPE allegedly adopted a decision instructing the courts not to enforce judgments against banks in cases concerning foreign currency savings .

On DATE ORG in GPE opened insolvency proceedings ( stečajni postupak ) in respect of the “ ORG - main branch ORG ” .

On DATE the applicant sent CARDINAL separate letters to ORG , ORG and ORG , requesting that the judgment against the bank in question be enforced .

On DATE ORG responded by stating that , in a series of Acts adopted in DATE , the ORG accepted to convert the foreign currency deposits in a number of failed banks , including ORG , into a “ public debt ” , and then went on to set out the time - frame and the amounts to be paid back to their former clients . It further noted that the said Acts provided that any judicial enforcement proceedings instituted with respect to the banks in question were to be discontinued ( obustavljeni ) .

On DATE the applicant filed another enforcement request with ORG .

On DATE he sent a letter to ORG , requesting enforcement of the final judgment adopted by ORG .

On DATE ORG suspended the enforcement proceedings ( prekinuo izvršni postupak ) and , in so doing , held that the reason for this was the opening of a separate insolvency procedure in respect of the bank in question by ORG on DATE .

NORP The applicant subsequently filed CARDINAL complaints against this decision with ORG , on DATE and DATE respectively , requesting an “ explanation ” as to why the judgment in question “ was not enforced prior to the opening of the said insolvency proceedings ” .

There is no information in the case file that , following the adoption of the relevant legislation , the applicant had requested the conversion of the foreign currency savings deposited with ORG into the public debt either from the respondent ORG or GPE , the country of his habitual residence .

Articles CARDINAL , CARDINAL , DATE and CARDINAL provided that all foreign currency savings deposited with the “ authorised banks ” before DATE , including explicitly the deposits in the bank at issue in the present case ( ORG ) , were to become public debts .

Under LAW , the ORG ’s responsibility in that respect was to be fully honoured by DATE through the payment of specified amounts , plus interest , and according to a certain time - frame .

Article CARDINAL provided that , as of the date of this Act ’s entry into force ( DATE ) , “ all pending lawsuits , including judicial enforcement proceedings , aimed at the collection of the foreign currency covered by this Act shall be discontinued . ”

This Act repeals the LAW described above . It modifies the time - frame for honouring the debt in question ( from DATE to DATE ) and specifies amended amounts , plus interest , to be paid DATE .

Article CARDINAL states that the said public debt shall be the debt of GPE and GPE , respectively , proportionally based on the total amount of savings deposited by the bank ’s clients with a registered residence in each of the republics ( “ srazmerno visini devizne štednje građana čije je prebivalište na teritoriji tih republika ” ) .

Article CARDINAL reaffirms that “ all lawsuits aimed at the collection of the foreign currency savings covered by this LAW , including the judicial enforcement proceedings , shall be discontinued . ”

This Act has also been in force since DATE . It was subsequently amended on CARDINAL occasions , but these amendments concerned peripheral issues unrelated to the saver ’s above - described status .

Articles CARDINAL , CARDINAL and CARDINAL provide that this LAW shall regulate the reimbursement of foreign - currency savings deposited by individuals residing in GPE with the authorised banks based outside GPE , which funds were then further deposited with ORG ( ORG banka GPE ) .

Article CARDINAL provides that GPE shall honour this debt by DATE , and specifies the amounts , plus PERCENT interest , to be paid DATE in CARDINAL .


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in Liptovský Mikuláš .

The father of the applicant owned a residential house . At some point in DATE or DATE the house was expropriated and attributed to a ORG company . The applicant 's father died in DATE .

On DATE the applicant lodged a demand with the ORG company for restoration of the house to her under LAW ( Law no . PERSON . ) .

On DATE the applicant filed a claim against the ORG company with ORG súd ) for the restitution of the house . In response to ORG request the applicant clarified and supplemented her original submission on DATE .

NORP On DATE the applicant submitted a further specification of the subjectmatter of her action .

On DATE ORG held a hearing .

By a submission of DATE the applicant restated the scope of the subjectmatter of her action .

On DATE ORG held a hearing and granted the action .

On DATE the judgment was sent by registered mail to both parties . The ORG company confirmed receipt of the judgment by signing a postal delivery card ( doručenka ) indicating DATE as the date of service .

On DATE the ORG company filed an appeal to ORG ( PERSON súd ) . It claimed that ORG judgment had been served on it on DATE .

On DATE the applicant filed her observations in reply to the appeal .

On DATE ORG transmitted the casefile to ORG for a determination of the appeal . On DATE ORG returned the casefile to ORG as the latter had failed to collect the court fee from the appellant ORG company . On DATE ORG resubmitted the appeal to ORG after having collected the court fee .

On DATE ORG held a hearing on the appeal , quashed ORG judgment and remitted the case to ORG for reexamination .

On DATE ORG requested the parties to submit further evidence and especially the Decree of DATE on nationalisation of the estate of the applicant 's father ( the “ Nationalisation Decree of DATE ” ) . On DATE the applicant submitted evidence and informed ORG that she was still searching for LAW of DATE and that she would submit it as soon as it was found .

On DATE the applicant informed ORG that , according to reports of DATE and DATE from ORG and the Liptovský Mikuláš District Library , respectively , LAW of DATE could not be found there .

On DATE the applicant appointed a lawyer to represent her in the proceedings .

On DATE ORG ( GPE pre správu a privatizáciu národného majetku ) decided under LAW on ORG ( Law no . CARDINAL Coll . , as amended ) to privatise the subsidiary of the ORG company whose assets comprised the house . The ORG company was transformed into a private joint stock company ( “ the privatised company ” ) . Its assets were transferred to ORG ( Fond národného majetku – “ the Fund ” ) and later invested in the privatised company . The ORG subsequently sold PERCENT of the shares of the privatised company to a third private party .

The hearing scheduled for DATE had to be adjourned as none of the parties appeared , the applicant having duly apologised for her absence .

On DATE the ORG informed the applicant again that it was unable to find LAW of DATE .

On DATE the applicant requested that the ORG investigate when its judgment of DATE had been served on the ORG company .

ORG then made an inquiry with ORG about the service of the judgment of DATE to the ORG company and obtained the information that service had been effected on DATE .

On DATE the applicant informed ORG that she had withdrawn the power of attorney from her previous legal representatives . She appointed as a new representative her son who permanently resided in GPE ( GPE ) but , at that time , was staying and had an address in GPE . The applicant identified the privatised company as the new defendant to her action and made a new submission concerning the merits of her case . Among other things , she pointed out that ORG judgment of DATE had in fact already been received by ORG on DATE . She maintained that in order to satisfy DATE timelimit for its appeal of DATE , the ORG company had forged the date stated in the postal delivery card to indicate CARDINAL DATE as the judgment service date . She requested that that appeal be declared inadmissible as having been lodged out of time and that her action be granted .

The applicant made CARDINAL written submissions DATE and DATE . The privatised company also made CARDINAL written submissions DATE .

In the meantime , on DATE and DATE and DATE ORG held hearings . The hearing of DATE had to be adjourned in order that ORG could examine the recent submissions of the parties .

On DATE the applicant informed ORG of her witnesses .

On DATE ORG requested information from the ORG concerning the settlement of the applicant 's restitution claims in the process of privatisation of the ORG company . The ORG replied on DATE .

The applicant made further written submissions on DATE , DATE and DATE .

On DATE ORG held a hearing and gave a new judgment in the case . It ordered the privatised company to surrender the house to the applicant . ORG further decided that the applicant was entitled to compensation in respect of her legal costs . As to the amount of this compensation , ORG accepted only a minor part of the applicant 's claim and dismissed its remainder .

On DATE the applicant submitted a further specification of her claim for compensation in respect of the costs and expenses .

On DATE the privatised company lodged an appeal against ORG judgment of DATE with ORG . On DATE the applicant filed her observations in reply to the company 's appeal .

ORG called a hearing for DATE but it had to be adjourned as neither the applicant nor her representative who was at that time in GPE appeared . On DATE the applicant requested that ORG fix the next hearing for DATE as on DATE her representative would be able to attend .

On DATE and CARDINAL DATE ORG held hearings . Following DATE , on DATE , ORG gave a judgment in which it upheld ORG judgment as regards the merits of the case . As to the applicant 's argument concerning the admissibility of ORG appeal of DATE , ORG found it established that the judgment of DATE had in fact been served on the ORG company on DATE and not on DATE . It however held that it was not competent to reexamine the admissibility of the appeal of DATE as this appeal had already been determined by ORG in its decision of CARDINAL DATE . ORG found ORG ruling in respect of the applicant 's costs and expenses to be “ absolutely incomprehensible ” , quashed it and remitted the matter to ORG for a new decision . The decision on the merits of the case became final and binding on DATE .

On DATE ORG corrected a clerical error in its judgment of DATE .

On DATE a ORG ( súdny exekútor ) , commissioned by the applicant to enforce ORG judgment of DATE , as upheld by ORG on DATE , notified the privatised company that enforcement proceedings had been instituted . The privatised company filed objections against this enforcement with ORG .

On DATE ORG dismissed the company 's objections and the enforcement was successfully completed .

On DATE and DATE and DATE and DATE the applicant made further submissions concerning her claim for reimbursement of her costs and expenses . In the meantime she was instructed by ORG to bring her claims in line with the applicable procedural requirements .

In its decision of CARDINAL DATE ORG made an award for costs . As no appeal was lodged , it became final and binding .


CASE OF NAİME DOĞAN AND OTHERS v. TURKEY

The applicants were born in DATE , DATE and DATE respectively and live in different cities in GPE .

NORP The applicants’ predecessor , Mr PERSON Doğan , was the owner of a plot of land in PERSON . On DATE he filed an action with ORG against certain third persons , whom he claimed were unlawfully occupying his land . He requested that the allegedly unlawful interference be halted .

As cadastral work by the authorities started in the area in DATE , the court decided on CARDINAL DATE that it no longer had jurisdiction and transferred the case to a court with special jurisdiction in the subject , ORG ( PERSON ) in PERSON .

The cadastral work divided the land into CARDINAL parcels , the ownership of which was separately disputed between the applicants’ predecessor and the occupiers . In DATE , ORG joined all CARDINAL cases .

NORP Throughout the proceedings , the applicants’ predecessor on the one hand maintained that the new plots corresponded to the single piece of land already registered in his name . The defendants , on the other hand , claimed that the land records could not possibly relate to those plots as they had purchased the whole piece of land in dispute from its previous , lawful owner .

On DATE ORG ruled in favour of the applicants’ predecessor and ordered the CARDINAL parcels to be registered in his name .

On DATE , however , ORG quashed this judgment on the grounds that there had been an insufficient factual examination of the case .

On DATE ORG resumed the proceedings . On DATE it decided to abide by ORG decision . Accordingly , it conducted a broader factual examination .

Notwithstanding that decision , the same court held a hearing on CARDINAL DATE and scheduled a new hearing to decide ( apparently for a second time ) whether or not to abide by ORG ruling .

At the next hearing held on DATE , ORG gave a fresh decision to abide by ORG ruling .

DATE and DATE hearings were held DATE . However , several hearings were presided over by different judges .

At the hearing on DATE , the court decided to conduct an on - site inspection ( keşif ) on CARDINAL DATE .

On DATE a new judge was appointed to the court for the second time in DATE . As he was unfamiliar with the case , he postponed the inspection . Until DATE , the judge sitting on the bench of the court was changed CARDINAL more times and the hearings were mainly devoted to the new judges’ gaining familiarity with the dispute .

Despite the fact that the court scheduled an on - site inspection several times , it was deferred for various reasons , including the lack of the necessary court stamps in the court ’s registry to notify experts and witnesses , the parties’ failure to pay certain fees , the applicants’ failure to bring their witnesses to the inspection site , the parties’ mutual failure to attend the inspection , the judge ’s DATE leave , the lack of pertinent witnesses , unsuitable weather conditions , the ailing condition of a local witness , the court ’s search for suitable new witnesses , the court ’s shortage of time due to its hearing backlog and , finally , the GPE disorderly behaviour and contempt of court . Throughout this process , the judge presiding over the case was again changed CARDINAL times .

The re - scheduled on - site inspection was eventually conducted on DATE .

At the hearing on DATE , the parties submitted their final observations . From that date until DATE , the court held a total of CARDINAL hearings . At the hearing held on that last date , ORG dismissed the ORG request .

On DATE the applicants appealed . ORG held a hearing on DATE .

On DATE ORG upheld ORG judgment .

On DATE the applicant filed a petition with ORG in PERSON , to be submitted to ORG , and requested the rectification of the decision dated DATE on the ground that the latter court had rendered a decision which lacked legal and procedural reasoning . According to the applicant ’s letter dated DATE , the proceedings are still pending before ORG .


Violation of Article 1 of Protocol No. 1 - Protection of property

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and lives in LOC .

The applicant 's mother had a share in a plot of agricultural land . The land is located in LOC and is registered as plot number CARDINAL .

In DATE the Bardejov local authority ( NORP národný výbor ) assigned the “ right of use ” in respect of the plot to ORG ( Štátny majetok ) .

The right of use was later conferred on ORG and , under a DATE contract on ORG .

NORP The area where the plot is located was turned into a “ garden community ” named PERSON and consisting of individual gardens which were put at the disposal of members of ORG ( “ the gardeners ” ) . The plot has been used as such a garden area since . It is situated outside the built - up area of LOC and it has been entered in the land register as arable land .

On DATE ORG issued an inheritance decree confirming that the ownership of QUANTITY of land in the above plot had devolved to the applicant .

On DATE special legislation on the use of plots of land in allotment gardens and arrangements as regards their ownership ( PERSON o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k nim – “ PERSON no . CARDINAL ” ) entered into force ( see “ Relevant domestic law and practice ” below ) .

Pursuant to section CARDINAL of Law no . CARDINAL , if no other arrangement has been made between an owner and a tenant of land in a garden community , their relation would become ex lege that of the parties to a lease . The applicant attempted twice to terminate the lease of her land by notice . She argued that , despite her efforts , no fair agreement concerning the use of the plot had been reached and that the statute used for the calculation of the rent in the absence of an agreement was outdated . Moreover , ORG was in any event in default of payment .

In DATE the applicant sued the gardeners before ORG . She claimed that the defendant should be obliged to conclude a lease contract with her and pay CARDINAL NORP korunas ( SKK ) as rent . On DATE ORG rejected the action as the defendant , as indicated in the applicant 's action , lacked standing in the case . On DATE the ORG upheld the first - instance judgment .

On DATE ORG informed the applicant , with reference to sections CARDINAL CARDINAL of Law no . CARDINAL , that rent payable by the gardeners amounted to PERCENT of the value of the land , determined pursuant to LAW . In any event , the minimum rent was SKK CARDINAL.CARDINAL per square metre .

In DATE the gardeners sent SKK CARDINAL,CARDINAL to the applicant as rent for DATE . In DATE the gardeners paid another SKK CARDINAL,CARDINAL.CARDINAL to the applicant as rent for DATE . Those sums correspond approximately to FAC per square QUANTITY a year .

NORP In letters of DATE and DATE the applicant informed the gardeners that the sums paid were inadequate in view of the actual value of her land and that no agreement had been reached between her and the gardeners as to the lease of the land . It appears from the applicant 's submission of CARDINAL DATE that DATE the gardeners had paid to her the overall sum of SKK CARDINAL,CARDINAL as rent for the use of her land .

On DATE , the gardeners requested that the ownership relations in respect of their gardens be settled in a procedure under section CARDINAL(CARDINAL ) of Law no . CARDINAL .

On DATE ORG formally announced the commencement of a land consolidation procedure in respect of the gardens in question . The announcement contained a register of the original ownership and a surveyor 's plan concerning the current state ( “ the preliminary inventory ” ) .

On DATE the applicant challenged the preliminary inventory , opposing the consolidation procedure as such and claiming possession of the original plot .

The challenge was dismissed by ORG on DATE . The administrative authority noted that the gardeners had proposed to buy the applicant 's land for SKK QUANTITY and that the applicant had declined that offer in that she had claimed SKK CARDINAL . As to the applicant 's arguments under LAW DATE , the authority noted that that piece of legislation ( and namely section GPE ) ) had ceased to be applicable to the land issue following the entry into force of PERSON no . CARDINAL on DATE .

NORP The applicant appealed . On DATE the ORG quashed ORG decision on the ground that it had not checked whether there were valid contracts on the use of the land entitling the gardeners to request its transfer under PERSON no . CARDINAL .

In a new decision of CARDINAL DATE ORG again dismissed the applicant 's objection to the preliminary inventory . It was noted , inter alia , that the applicant had no power to terminate the lease . No agreement had been reached between the owner and the gardeners on the transfer of the land in issue . On the basis of the contracts on use of the land included in the file ORG was satisfied that the users of the land were entitled to request a consolidation procedure under PERSON no . CARDINAL .

The applicant appealed . She claimed that the land should have been returned to her and requested that the rent payable by the gardeners should be determined .

On DATE ORG dismissed the appeal . The decision stated that LAW DATE had ceased to be applicable after enactment of Law no . CARDINAL . Any outstanding issues concerning the rent of the land fell to be determined by a court .

On DATE ORG approved the preliminary inventory . The applicant challenged the approval by an administrative appeal , arguing that LAW no . CARDINAL was unconstitutional . She demanded that the consolidation be carried out according to market economy principles .

On DATE ORG upheld the decision of DATE . It noted that conformity with LAW no . CARDINAL had been already examined and confirmed by ORG and that the consolidation procedure had been conducted in compliance with that LAW .

In a letter of CARDINAL DATE ORG invited the applicant to present her position by stating whether she preferred to be compensated for her title in the plot by being granted a substitute plot or paid an amount of money in lieu . The letter indicated that the applicant owned QUANTITY of land in the garden community concerned . The value of the land pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) of PERSON no . CARDINAL was SKK CARDINAL . Given that the land was located in a town which was a spa , the compensation was to be increased by PERCENT to reach SKK QUANTITY .

NORP In response , the applicant rejected the proposed options and reiterated her request for her plot to be restored to her . As to the proposed financial compensation , she objected that it was inadequate .

On CARDINAL DATE ORG ruled that the applicant was to be financially compensated for her title to the plot . It was observed that she had made no claim for substitute land in which case , under section CARDINAL(CARDINAL)(a ) of Law no . CARDINAL , the compensation was automatically to be financial . The decision stated that the applicant owned QUANTITY of land in the area concerned and that she would receive FAC ( that is SKK CARDINAL.CARDINAL , which is equivalent to ORG CARDINAL.CARDINAL , per square metre ) in compensation .

In DATE ORG informed the land owners of the details of the consolidation project under LAW no . CARDINAL . On DATE ORG dismissed the applicant 's objection to the project . On CARDINAL DATE ORG dismissed the applicant 's appeal against that decision . The authorities established that the applicant had claimed that LAW DATE be applied and that her purchase price should be determined on the basis of its market value .

On DATE the applicant lodged an action with ORG in which she challenged the decision of ORG . On CARDINAL DATE she extended her claim in that she challenged the above ORG decisions of DATE , DATE and DATE .

On DATE ORG discontinued the proceedings concerning ORG decisions of DATE and DATE as the action had been lodged outside the statutory DATE time - limit . It dismissed the claim concerning the decision of ORG DATE .

ORG noted that in her action the applicant had claimed that the contested administrative decisions were unlawful on the ground that the administrative authorities had failed to correctly and reliably establish the relevant facts . The decision stated that the applicant had failed to specify , as required by the law , on the basis of which particular facts she considered the law to have been breached in the proceedings leading to the decision of ORG . The applicant rather expressed her disagreement with the land consolidation procedure as such and the amount of compensation offered to her in that context .

In the meantime , on DATE , ORG in Bardejov approved the land consolidation project under LAW no . CARDINAL . The decision became final on DATE .

On DATE the same authority ordered implementation of the land consolidation project pursuant to section CARDINAL ) of Law no . CARDINAL . On DATE ORG in Prešov upheld that decision . It noted that the applicant had challenged the decision of DATE without submitting any reason for her appeal . She had merely stated that she had made an application to ORG . At a later stage the applicant had requested that the administrative authorities should proceed pursuant to LAW DATE and that the ownership rights in respect of the land should be determined in accordance with LAW .

The regional land office noted that in the context of the consolidation proceedings the compensation for the landowners had been determined by a decision which had become final on DATE . None of the land owners had sought judicial review . Adequacy and form of compensation to be provided to land owners could therefore no longer be addressed in the subsequent proceedings , which concerned the implementation of the consolidation project .

On DATE a real estate agency issued a certificate , at the applicant 's request , according to which the approximate value of the applicant 's land is EUR QUANTITY .

On DATE , at the ORG 's request , ORG in GPE submitted an opinion according to which the market value of the applicant 's land is ORG CARDINAL.CARDINAL per square metre . The opinion states that the land is located in the area of the town of Bardejov and that it has not been planned to use it for construction purposes according to the current plans . Furthermore , the land is in a zone of environmental protection of water resources whereby its use for purposes other than gardening is considerably affected .

In a reaction to the latter valuation the applicant proposed that the ORG should accept that the value of her land was ORG CARDINAL per square metre .

NORP The relevant domestic law and practice , as well as the general background to consolidation of land used by garden communities , are set out in GPE obec PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE and DATE , ORG DATE ... ( extracts ) ) .

As from DATE , after Regulation CARDINAL/CARDINAL had been repealed ( see GPE obec PERSON , cited above , § DATE ) , sections PERSON ) and CARDINAL ) of PERSON no . CARDINAL have provided for the value of the land in the allotments to be determined in accordance with a special law . In particular , section CARDINAL(CARDINAL ) has fixed the rent at PERCENT of its value thus determined . Reference is made to LAW DATE , as amended . Section CARDINAL(CARDINAL ) of that Act empowers ORG to issue a binding regulation in that respect .

Such regulation was enacted with effect from DATE ( Regulation CARDINAL/CARDINAL ) . In it valuation is based on a scheme of “ quality pedo - ecological units ” ( bonitované pôdno - ekologické jednotky ) categorising agricultural land and other areas in GPE . Section CARDINAL ) provides that such valuation is applicable also to gardens located outside a municipality 's constructed area . The scheme provides for value of agricultural land within a range from ORG CARDINAL.CARDINAL to EUR CARDINAL.CARDINAL FAC ) . Pursuant to Annex CARDINAL , the value of a particular plot is determined by multiplying the unitary value as set out in FAC by its surface area .

In addition , the following legal provisions and practice are relevant in the present case .

Article CARDINAL § CARDINAL of the LAW provides that constitutional laws , laws and other generally binding legal regulations are to be interpreted and applied in conformity with LAW .

Pursuant to Article CARDINALc § CARDINAL of the LAW , international treaties on human rights and fundamental freedoms which GPE has ratified and which have been promulgated in the manner laid down by a law prior to the entry into LAW on DATE form a part of its legal order and have precedence over laws where they provide for a broader array of constitutional rights and freedoms .

In judgment ORG CARDINAL delivered on DATE ORG , with reference to LAW and CARDINALc § CARDINAL of the LAW , held that the LAW and the case - law of its bodies represent binding guidelines for national authorities on interpretation and implementation of legal provisions with a bearing on fundamental rights and freedoms . The LAW and the case - law of its organs thus set a framework which the national authorities could not overstep when dealing with a case . The same view was expressed in its judgment ORG CARDINAL/CARDINAL of DATE .

On DATE the ORG delivered a judgment in proceedings III . ÚS CARDINAL/CARDINAL . The case concerned alleged flaws in proceedings on implementation of a consolidation project under PERSON no . CARDINAL . In particular , the plaintiff complained that by its decision to discontinue the proceedings concerning lawfulness of the administrative authorities ' decisions a court had breached his rights to judicial protection and to own property .

The Constitutional Court granted the complaint considering that the court should have dealt with the merits of the case . It returned the case to the ordinary court for further proceedings .


Violation of Art. 6-1;Violation of Art. 8;No violation of Art. 8

The applicant was born in DATE and lives in GPE .

The applicant is the mother of E , born on DATE . Her husband , the father of E , died in DATE . In DATE the applicant got acquainted with R , his wife G and their CARDINAL children , who were also living in GPE . The applicant and R started an intimate relationship which was tolerated by PERSON During that period , E was regularly taken care of by R and PERSON In DATE the applicant and R moved to GPE while E stayed in GPE with G and the other children . The applicant and R regularly spent the weekends in GPE with G and the children .

In DATE R and G moved with their children and E into a house in GPE while the applicant stayed in an apartment in GPE .

NORP In DATE the applicant concluded an agreement with R and G concerning E 's care . The agreement indicated that E should continue to live with R and G as she had already done for DATE . Subsequently , the relation between the applicant , R and G deteriorated and the applicant 's attempts to visit E led to conflicts between them .

NORP In DATE the applicant filed an action with ORG ( ORG ) and requested that R and G be ordered to return PERSON In an expert opinion submitted on DATE the court - appointed expert ORG , having examined the applicant , E , R , G and CARDINAL of their children , considered that E repudiated the applicant and any relation to her family of origin . The expert considered that E had not formed any solid relations within the foster family and that the foster parents did not support her in her psychological development . The child 's problems had not been caused by the fact that her mother , who had originally deserted her , now laid claims on her , but by the fact that the child had been torn into the adults ' conflicts . She felt compelled to completely identify with the foster family and to suppress any individual emotions . This was aggravated by the fact that the foster family rejected the applicant , which was clear to the child even if it was not openly discussed within the family . The expert concluded that E was completely unable to cope with the current situation and that her stay with the foster family highly jeopardised her welfare . As there was no indication that R and G would change their attitude even if offered expert support , they were unfit to act as E 's foster parents . The expert strongly recommended that E should be taken from the foster family and placed in a therapeutic environment where her return to her mother could be prepared .

On CARDINAL DATE ORG rejected the applicant 's action and ordered that E should remain with the foster family ( “ FAC ” pursuant to section DATE of LAW , see relevant domestic law , below ) . It considered that E suffered from severe personality disorders which originated from the fact that her mother had left her in DATE . In order to prevent E 's absolute dislocation , she should stay with the foster family and undergo out - patient psychological treatment .

On DATE ORG ( Landgericht ) rejected the applicant 's appeal . After having heard E , the court estimated that the foster parents had become E 's reference persons . E had indicated that she wished to stay with the foster parents whom she called “ mum and dad ” and that she regarded the applicant merely as the person who had given birth to her . The court held that a break with the environment she had become familiar with during DATE would definitely endanger her welfare .

On CARDINAL DATE the ORG ( Oberlandesgericht ) rejected the applicant 's further appeal .

On DATE ORG ( Bundesverfassungsgericht ) refused to admit her constitutional complaint . It pointed out that the impugned decisions did not meet the constitutional standards as the courts had not sufficiently justified why they had decided contrary to the expert recommendations . There were serious doubts whether the courts had respected the importance of parental rights when giving their decisions and whether they had sufficiently taken into account the principle of proportionality . However , having regard to the fact that the case was meanwhile pending again before ORG and that the latter had ordered a new expert opinion ( see paragraph CARDINAL , below ) , the rejection of her constitutional complaint would not entail any significant disadvantages . The new procedure was likely to respect the applicant 's rights as a parent and to observe the principle of proportionality .

On DATE the applicant filed a further action with the NORP ORG requesting that the foster parents be ordered to return E and , alternatively , a decision granting her access to E.

On DATE ORG rejected the applicant 's requests , withdrew her custody rights regarding the determination of the child 's place of residence , her representation at school , her health care , the right to apply for public assistance and child benefits , and transferred these rights to ORG . The court observed that E had been living with the foster parents for DATE and that she considered the foster family as her own family . Since DATE , E had persistently refused to have any contact with the applicant and turned her back to her on the occasion of visiting contacts . Bearing in mind that E was DATE , the court considered her will as a decisive factor in the decision - making process . The apprehensions raised in the expert opinion dated DATE had been eliminated by the fact that the representative of ORG attested that E had developed normally and that her current behaviour showed no disturbances . E 's recent development confirmed that she benefited from the current situation because she was well - integrated in her family as well as in school . The court pointed out that a further expert opinion in this respect was thus not necessary . Furthermore , it had refrained from hearing E in order to spare her a further appearance before court . E had already testified on several occasions and – as the latest report of ORG revealed DATE had not changed her attitude . In order to ensure E 's proper medical care and her representation at school , it was necessary to transfer partial custody to ORG pursuant to LAW ( ORG – see relevant domestic law , below ) . Moreover , as the numerous attempts in the past to establish a contact between E and the applicant had failed , even with psychological supervision , the court refused to lay down any rules as to the applicant 's visiting rights . It deemed it impossible to force the DATE child to have contact with her mother .

On DATE the applicant lodged an appeal against ORG decision . On DATE ORG held an oral hearing . On DATE ORG commissioned the psychological expert V to examine whether the child E should remain with the foster family and which access rights could be granted to the applicant without jeopardising the child 's well - being . On DATE the foster parents ' counsel brought a motion for bias against the expert V , which was dismissed by ORG on DATE . On CARDINAL DATE ORG quashed this decision on the ground that ORG had failed to hear the expert with respect to all of the allegations supporting the motion for bias . On DATE ORG , having heard the expert , once again dismissed the motion for bias . The foster parents ' complaint against this decision was rejected by ORG on DATE .

Meanwhile , on DATE and DATE , the applicant 's counsel had asked for time - limits to be extended .

On DATE ORG appointed a curator ad litem to represent E in the proceedings before that court . On DATE ORG rejected the foster parents ' complaint . On DATE ORG quashed ORG decision on the ground that E 's interests were sufficiently safeguarded by her being represented by the social worker PERSON

On DATE the expert V was delivered the case - file . On DATE the social worker H , acting on E 's behalf , lodged a complaint against the order to take evidence , which was rejected by ORG on DATE and by ORG on DATE . DATE and DATE the expert held interviews with R , G , the child 's curator at ORG , the social worker H and E 's school director and class teacher . E refused to take part in the examination . The foster parents attempted to avoid examination and many appointments had to be postponed .

On DATE and DATE ORG asked the expert when she would submit her expert opinion .

On DATE the expert submitted her opinion . She noted , at the outset , that the examination could only yield limited results because of the foster parents ' refusal to let her inspect the family home and E 's consistent refusal to take part in the examination . The expert further noted that E 's class teacher described her as a quiet child who appeared to be absent and seemed to be unable to express her emotions . The expert considered that E felt deserted by the applicant and therefore denied any relationship to her . The foster parents appeared to have enforced her negative attitude towards her natural mother and to have , as early as CARDINAL , done everything to keep E permanently within their family . It appeared that the foster parents had failed to encourage contacts between E and the applicant , but had rather tried to prevent such contacts . The adults ' actions had not always been guided by the child 's best interests , but rather by their desire to hurt one another . The expert further considered that the applicant understood and regretted her past shortcomings , but that she was not ready to respect E 's wish to stay with the foster family . R and G , on the other hand , did not acknowledge any misconduct on their side . In spite of certain doubts , the expert considered that R and G were in principle capable of taking care of E. It appeared , however , that E , while experiencing some sort of continuity in the foster family , had not built up stable relationships and that she suppressed any relation to her family of origin .

By way of conclusion , the expert considered it indispensable for the child 's development that she was given the opportunity to face her past . It was of utmost importance for E 's well - being to arrange contacts with her natural mother . The expert considered that E would be more open to such contacts if her wish to remain with the foster family was respected and if the judicial proceedings came to an end . Accordingly , the expert advised the court to order that E should remain with the foster family and to arrange supervised and gradually increasing contacts between E and the applicant . She further recommended that E be personally heard by ORG , as it had not been possible to hear her during the examination .

On DATE ORG held an oral hearing . As the foster parents had lodged a motion for bias against the expert , ORG refrained from hearing the expert , as originally planned . The motion for bias was rejected on DATE .

On DATE , following a further oral hearing held on DATE , ORG rejected the applicant 's appeal . Referring to the expert opinion , ORG considered that it was in E 's best interest to remain with the foster family , where she had experienced , for the first time in her life , continuity . It further considered that this was also in accordance with E 's own wishes and that E would reach her majority in DATE . On the basis of the expert opinion and taking into account E 's refusal to have any contacts with the applicant , ORG further considered that it would merely lead to further irritations if E was forced to have contact with her mother and therefore refrained from determining any visiting regulations . ORG further noted that E had been originally willing to be heard by the court but had felt offended by a statement made by the applicant 's counsel during a court hearing on DATE , who had alleged that the child would “ end up in prostitution , alcohol- or drug addiction ” if she remained in the foster family , and refused any further cooperation . Under these circumstances , the fact that E refused to be heard was at least partly imputable to the applicant 's counsel 's conduct .

On DATE ORG rejected the applicant 's further appeal . ORG noted , at the outset , that the proceedings before ORG had lasted unduly long . This could , in general , not be accepted , in particular in proceedings which primarily concerned a child 's well - being . The court considered , however , that many requests , motions for bias , requests for extensions of time - limits and complaints lodged both by the applicant and the foster parents considerably delayed the proceedings . In any event , an excessive length of the proceedings could not influence the outcome of the applicant 's complaint .

With regard to the substance of the applicant 's complaint , ORG considered that the decision that E should stay with her foster parents was in accordance with section CARDINAL § CARDINAL of LAW , because her removal would jeopardise the child 's welfare , taking into account the further period of time which had elapsed since ORG had given its decision and the fact that E would reach her majority within DATE . The court did not approve that DATE ever since E 's refusal to be heard by ORG in DATE the latter had failed to make further attempts to hear her and had failed , in particular , to summon her to the hearing in DATE . ORG presumed , however , that E 's consistent refusal to see her mother since the time when she had been DATE had been sufficient to convince ORG that E would not be ready to accept any compromises . As E maintained her attitude before ORG , that court also refrained from hearing E pursuant to section CARDINAL b § CARDINAL of GPE ( PERSON über die ORG der freiwilligen PERSON – see relevant domestic law , below ) . ORG further noted that ORG , in its decision given on DATE , had not given any binding guidelines for the present proceedings .

ORG finally considered that there was no room for a regulation on access rights for DATE until E would reach majority . It noted that E consistently rejected her mother and did not wish to have any contact with her . ORG observed that ORG might have given up prematurely in this respect and that it had failed to set a time - limit to the exclusion of access rights . However , given the lapse of time , it was not suitable to correct this decision , as DATE would not suffice to start a pertinent therapy and instigate contacts between mother and daughter .

On DATE ORG refused to admit the applicant 's constitutional complaint . It pointed out that the length of the proceedings was very critical . It observed furthermore that the courts had failed to appoint an independent curator ad litem to represent E in the proceedings as provided for in LAW . However , in view of the fact that E would reach her majority on DATE , the rejection of the constitutional complaint would not entail any significant disadvantage for the applicant . This decision was served on the applicant 's counsel on DATE .

On DATE the NORP ORG decreed E 's adoption by R and PERSON The applicant contested this decision before ORG .

The Civil Code

Pursuant to LAW of LAW ( ORG ) parental responsibility ( Personensorge ) comprehends the right to order anybody – who unlawfully deprives the parents or CARDINAL parent of their child – to have their child returned .

Section CARDINAL § CARDINAL provides that DATE if the parents intend to take away a child from the foster parents the child has been living with for some time – ORG may order the child 's stay with the foster parents if and as long as the child 's removal would jeopardise his or her welfare .

According to section DATE , a child is entitled to have access to its parents ; each parent is obliged to have contact with , and entitled to have access to , the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child 's welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child 's well - being would be endangered ( section DATE ) .

Section DATE provides that in cases of a danger to the child 's welfare the court shall order the necessary measures .

The Act on Non - Contentious Proceedings

Section CARDINAL § CARDINAL of the Act on Non - Contentious Proceedings ( ORG über die ORG der freiwilligen PERSON ) determines that in proceedings concerning a minor child , ORG may appoint a curator ad litem ( PERSON ) for that child to assist him or her if this should be necessary for the protection of his or her interests .

Section CARDINAL b stipulates that in cases regarding custody issues , a child aged DATE or above shall always be heard . The court is only allowed to refrain from hearing the child if this is justified by serious reasons ( section QUANTITY ) .


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE . He is currently detained in ORG .

On DATE the applicant was arrested on suspicion of murder .

On DATE ORG ( Sąd Rejonowy ) remanded him in custody , relying on the reasonable suspicion that he had committed the offence in question . It considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings , given the risk that he might tamper with evidence or go into hiding . As regards the latter , the court relied on the fact that he did not have his place of residence in GPE . It also stressed the severity of the anticipated prison sentence .

The applicant ’s appeal against the detention order , likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him , were unsuccessful .

In the course of the investigation , the applicant ’s detention was extended on DATE to DATE . ORG relied on the original grounds given for the applicant ’s detention . It also underlined that the applicant was a foreign national and therefore there was a risk of his absconding if released .

The applicant asserted that at the early stage of the investigation he had admitted to having committed the offence he had been charged with . He further submitted that he had agreed to cooperate with the authorities in order to have his future sentence mitigated .

On DATE ORG lodged a bill of indictment with the Gorzów PERSON ORG ( PERSON ) . The applicant was charged with murder . The bill of indictment comprised several charges brought against CARDINAL defendants .

NORP The applicant was tried on the basis of the relevant provisions of LAW of DATE ( the so - called “ LAW ” ) which entered into force on DATE , replacing LAW of DATE ( the so - called “ Old Criminal Code ” ) . According to LAW , in the event that a case is being examined at a time when LAW is in force but concerns an offence which was committed prior to its entry into force , the new law shall nevertheless apply if it is more lenient for the perpetrator ( względniejszy dla sprawcy ) .

On DATE and DATE the trial court held hearings . The applicant pleaded guilty before the trial court . In particular , he testified that he had committed the murder together with a certain PERSON and a certain ORG

During the trial the authorities further extended the applicant ’s detention pending trial on DATE ( to DATE ) . The courts repeated the grounds previously given for the applicant ’s continued detention .

On DATE the Gorzów ORG gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment . The court noted , inter alia , that although the applicant pleaded guilty , his testimonies had not been fully coherent and contained a number of inconsistencies . It therefore considered that the conditions for the extraordinary mitigation of sentence had not been met in the case .

The applicant ’s legal - aid counsel argued that the first - instance court had not mitigated the applicant ’s sentence as required by LAW of LAW , despite the fact that the applicant had cooperated with the authorities . According to that provision , a domestic court shall mitigate the sentence if the defendant committed the offence with accomplices , and revealed to the prosecution information about the persons involved in the commission of the offence and any significant circumstances in which the offence was committed .

The applicant was kept in detention pending appeal .

On DATE the ORG ( Sąd Apelacyjny ) heard the appeals . It quashed the first - instance judgment and remitted the case for retrial . The appellate court observed at the outset that the appeals lodged by the applicant and ORG contested only the severity of the penalty imposed and not the applicant ’s guilt which was clearly established . It further considered the arguments advanced on behalf of the applicant to be reasonable . However , it found that the evidence examined by the first - instanceIt further ordered that the applicant ’s detention should continue until DATE . The court repeated the grounds previously given for the applicant ’s continued detention . In addition , it underlined the need to obtain a report from an expert in graphology .

On DATE , DATE and DATE the trial court held hearings .

On DATE the Gorzów ORG convicted the applicant as originally charged and sentenced him to CARDINAL years’ imprisonment . The other defendants were likewise convicted .

NORP The applicant , other co - accused and ORG appealed . The applicant remained detained pending appeal .

It appears that the applicant changed his testimony in that he no longer claimed that ORG had been an accomplice to the offence he had been charged with . He continued to admit his own guilt .

On DATE the ORG again quashed the first - instance judgment and remitted the case for retrial . It ordered that the applicant ’s detention should continue until DATE .

In the retrial proceedings the applicant made numerous , unsuccessful applications for release and appealed , likewise unsuccessfully , against decisions extending his detention . The relevant decisions on the extension of his detention were given by the Gorzów Wielkopolski Regional Court on DATE ( to DATE ) , on DATE ( to DATE ) , on DATE ( to DATE ) and on DATE ( to CARDINAL DATE ) .

On DATE the Gorzów ORG convicted the applicant as originally charged and sentenced him to DATE imprisonment . As concerns the other defendants , the court convicted PERSON but acquitted PERSON

The applicant appealed . The applicant ’s legal - aid counsel argued , inter alia , that the trial court had erred in that it had not mitigated the applicant ’s sentence . The lawyer noted that the material in the case file clearly indicated that the applicant had cooperated with the authorities and therefore had complied with the requirements of LAW of LAW . Admittedly , the applicant had changed his pleadings after the judgment of DATE . That , however , should not have had any bearing on the outcome of the case , since the applicant had undoubtedly been coerced into changing his testimony by his co - defendants .

On DATE the ORG upheld the firstinstance judgment . It acknowledged that the applicant had given an account of his own wrongdoing . The court observed however that the remainder of his testimony , in particular in part regarding the responsibility of other co - accused had not been credible and had not been taken into consideration by the trial court . The appellate court concluded that the applicant ’s testimonies had not been wholly credible and therefore he was not entitled to an extraordinary mitigation of his sentence .

NORP By letter of DATE the applicant ’s legal - aid lawyer informed ORG that he had not found any grounds for lodging a cassation appeal in the case .

It appears that throughout the trial the applicant was represented by a lawyer assigned to him under the legal - aid scheme . The applicant submitted that DATE his legal - aid lawyer had never met him to prepare the case and had put forward an ineffective defence .

On DATE the applicant was committed to ORG . Since that date he has been continuously detained in several penitentiary facilities . On DATE the applicant was transferred to ORG where he is currently detained .

The parties gave partly differing accounts of the conditions of the applicant ’s detention .

The applicant maintained that during most part of his detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene .

The Government submitted that they could not formally confirm whether during his detention from DATE to DATE , from DATE to DATE , from DATE to CARDINAL DATE , from DATE to DATE , from DATE to CARDINAL DATE , from DATE and from DATE to DATE the applicant was detained in cells with a surface area of CARDINAL m² per person . The Government further submitted that the period of the applicant ’s detention in cells in which the statutory minimum requirement of CARDINAL m² per person had not been respected amounted to DATE . Finally , they maintained that the applicant was currently detained in a cell in which the statutory minimum requirement of CARDINAL m² per person was respected . This submission was not contested by the applicant .

At the beginning of his detention the applicant lodged numerous complaints with the penitentiary authorities regarding the conditions of his detention . He submitted that he had later given up as his complaints had no prospects of success and he had feared being persecuted by the prison authorities . The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights .

The relevant domestic law and practice concerning the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of GPE v. GPE [ ORG ] , no . GPE , § § DATE , ECHR CARDINAL-XI ; PERSON v. GPE , no . CARDINAL , § § DATE , DATE ; and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in GPE and domestic remedies available to detainees alleging that conditions of their detention were inadequate are set out in the ORG ’s pilot judgments given in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL/CARDINAL ) on DATE ( see § § DATE and § § CARDINAL respectively ) . More recent developments are described in the ORG ’s decision in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL ) on CARDINAL DATE ( see LAW § DATE ) .