CASE OF YORDANOVA AND OTHERS v. BULGARIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life) (Conditional);Non-pecuniary damage - finding of violation sufficient;Respondent State to take individual measures (Article 46-2 - Individual measures)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants are residents of ORG , a neighbourhood of GPE . They describe themselves as being of GPE origin .

Unlike some other NORP countries , where the GPE often have an itinerant way of life , in GPE , at least since DATE , the great majority of the GPE live a settled life . Typically , NORP towns feature CARDINAL or more predominantly GPE neighbourhoods in non - central areas .

Some of the applicants or their parents and in some cases their grandparents moved to PERSON at DATE and in DATE . Others are more recent arrivals who settled there in DATE .

In DATE land in the neighbourhood in question was expropriated by the ORG and cleared in the context of the authorities’ housing construction policy . A number of blocks of flats were constructed there , but the plots currently inhabited by the applicants remained vacant , having been earmarked for a green area , which was never landscaped .

NORP The applicants’ families built their homes on State land without any authorisation . The area thus gradually developed into a small GPE settlement . It appears that CARDINAL persons live there .

Most of the buildings are single - storey houses . There is no sewage or plumbing . The inhabitants use water from CARDINAL public fountains .

NORP Most applicants’ registered addresses are at their homes in FAC . Many of them are registered at CARDINAL and the same address although they live in separate buildings which do not figure on any official area plan . Most of the applicants live in their houses with their families , including young children or grandchildren .

The applicants never sought to regularise the buildings they had constructed . This was in principle possible through applications for building permits and planning approval . According to the applicants , making such applications was difficult for them as they are poor and live their lives in the GPE community , isolated from the rest of society .

It is undisputed by the parties that the applicants’ homes do not meet the basic requirements of the relevant construction and safety regulations and can not be legalised without substantial reconstruction .

NORP In DATE the local building plan was amended and the construction of dwellings was envisaged on the plots in question . The plan was never implemented .

Following a legislative reform , in DATE the land occupied by the applicants became the property of the GPE municipality .

Until DATE , the ORG and municipal authorities never took steps to remove the applicants and their families .

Under the relevant law the applicants can not obtain ownership of the land they occupy . Until DATE the provisions on acquisitive prescription did not apply in respect of ORG and municipal land . Since DATE , these provisions , under which a DATE period of possession may suffice for the acquisition of real property , apply to most categories of municipal land . However , in DATE , shortly before the expiry of DATE after the DATE amendment , ORG suspended the running of prescription periods in respect of ORG and municipal land . The suspension has been extended several times and is currently in force until DATE ( sections CARDINAL and CARDINAL of LAW and the transitional provisions thereto ) .

According to a statement by a Mr PERSON , a GPE resident of ORG , his parents are the lawful owners of their house there and possess a notarial deed . A copy of the notarial deed has not been submitted by the applicants . Neither Mr PERSON nor his parents were among the addressees of the removal order of CARDINAL DATE ( see paragraph CARDINAL below ) .

From DATE tension grew in several regions of GPE between the inhabitants of GPE settlements and their non - Roma neighbours . The issue of GPE settlements , often referred to as “ ghettos ” , was widely debated in the media . Many commentators urged the emptying of all “ GPE ghettos ” in GPE . This line was supported by a number of leading politicians . Occasionally , the views of GPE organisations were also published .

DATE several demonstrations were held by non - GPE residents of different areas in GPE seeking the eviction of their GPE neighbours . Other demonstrations were held by non - Roma persons protesting at news of plans by the authorities to resettle in their neighbourhoods GPE families to be removed from other parts of the city .

It appears that on an unspecified date non - GPE residents of ORG formed an association with the aim to bring pressure to bear on the authorities in relation to the ORG unlawful settlement .

Most complaints against the GPE inhabitants of ORG concerned sanitary risks and repulsive odours caused by the absence of sewage and the fact that the inhabitants kept animals ( allegedly including sheep , pigs , hens and horses ) . Also , many non - GPE residents of the area believed that the GPE inhabitants were responsible for numerous offences , including physical assault , theft and damage to public and private property . The protesters also resented on aesthetic grounds the presence of unsightly shanty houses in the area .

NORP The municipal authorities in GPE perceived as a serious problem the fact that since DATE many GPE had moved to GPE and settled in illegal GPE settlements , thus increasing their overpopulation and generating more illegal construction and sanitary problems .

In DATE an unspecified number of individuals , apparently persons who had obtained decisions restoring their property rights over expropriated land in the PERSON area , complained to the GPE municipal council that “ persons of GPE origin ” were unlawfully occupying land in the area . Having examined the matter , on DATE the municipal council decided to offer the restored owners other municipal land in exchange for their land . It also invited the mayor of GPE to develop a plan for the resolution of the “ problem as a whole ” . No such plan appears to have been adopted .

In DATE the local building plan in PERSON was modified by the municipal authorities , who planned to develop the area .

On DATE the GPE municipal council approved in principle the transfer of title to plots of land in PERSON to PERSON , a private investor . The transfer was effected on DATE . The plots of land in question were adjacent to the land occupied by the applicants . It is unclear whether PERSON realised any development project .

On DATE municipal officials visited the ORG neighbourhood and issued a document certifying that the applicants and other persons occupied the land .

On DATE , PERSON , the district mayor , invited all or almost all residents DATE approximately CARDINAL GPE , including the applicants DATE to leave their homes within DATE as they were occupying municipal land unlawfully . The text referred to section CARDINAL of LAW and contained a list of the names of its addressees and also a warning that failure to comply would result in removal by the police .

The applicants filed an appeal . On DATE municipal officials issued a document certifying that the residents concerned had not left the area .

As a result , on DATE the mayor ordered their forcible removal on DATE . The order listed individually the names of all those concerned . The mayor also stated her intention to secure a decision for the demolition of the applicants’ houses in accordance with LAW ( ORG за устройство на територията ) .

The applicants asked ORG to stay their removal pending the examination of their appeal against the removal order . The court granted their request .

On DATE a committee representing the GPE residents of the area signed an agreement with the municipal authorities in GPE according to which the municipality would offer alternative housing to the persons registered as PERSON residents , whereupon they would be removed . No action was taken by the municipality in execution of this agreement .

The agreement also provided that the committee of representatives would take measures to improve hygiene in the GPE settlement . They also undertook to organise the removal of unauthorised domestic animals kept by residents and keep better order . According to the Government , the situation did not improve .

In the judicial proceedings against the mayor ’s order , on DATE the ORG ruled that the removal order was lawful . The applicants appealed . On DATE , ORG upheld ORG judgment .

The courts found that the fact that the applicants had not shown a valid legal ground for occupying the land was sufficient to establish that the removal order was lawful . If the applicants considered that they had property rights , it was for them to seek notarial deeds or bring civil proceedings to establish those alleged rights . They had not done so . In these circumstances and having regard to section CARDINAL of LAW , their houses were owned by the municipality .

The courts also stated that the ORG allegations about violations of the LAW and discrimination were groundless .

The courts ignored as irrelevant under domestic law the ORG argument that they should not be removed because they had lived in the area for DATE with the authorities’ acquiescence , and their arguments based on the principle of proportionality .

On DATE , the municipal authorities announced their intention to evict the unlawful residents of PERSON , including the applicants , by DATE and to demolish their homes . On DATE the district mayor was reported in the press as having stated that the removal order had been issued as a result of numerous complaints by neighbours in relation to the unlawful settlement .

As a result of political pressure , mainly from members of ORG , the authorities did not proceed with the eviction .

In their public declarations the municipal authorities apparently took the stand that the removal of the Batalova Vodenitsa residents was overdue but could not be done immediately because of pressure “ from LOC ” . Divergent opinions were expressed as to whether the municipality should try to find alternative housing for the residents of PERSON . In public declarations the mayor of the district stated that this was not possible because the residents concerned had not been registered as persons in need of housing and the municipality could not give them priority over other people who had been on the waiting list for DATE .

On an unspecified date shortly after DATE , PERSON , the mayor of the relevant district , participated in a televised debate concerning the fate of the GPE settlement in ORG . She stated , inter alia , that the GPE inhabitants there did not have the right to be registered as persons in need of housing because they were occupying municipal land unlawfully . For that reason , she would not offer them the tenancy of municipal dwellings , there being many other families on the waiting list . The district mayor further stated that the agreement of DATE between the mayor of GPE and a committee of representatives of the GPE families “ had been concluded in a pre - electoral period ” and that she did not consider herself bound by it . She also stated that the removal order had been upheld by the courts and must be enforced ; the fact that the persons concerned had nowhere to go was irrelevant . The mayor further stated that she had received complaints by non - GPE inhabitants of the area and was under a duty to act .

Most of the applicants have not tried to make arrangements to find new homes for their families . DATE CARDINAL of the applicants registered at addresses in other areas of GPE . In DATE CARDINAL of the applicants declared an address in the town of PERSON as her official address . According to these CARDINAL applicants , although for short periods they lived outside PERSON , in dwellings occupied by relatives , their only real home had remained PERSON .

It appears that after DATE negotiations continued between the GPE inhabitants and the municipal authorities regarding possible relocation in temporary municipal housing of those persons in the applicants’ position who had been registered as resident in ORG before DATE . Non - governmental organisations defending the rights of the ORG representatives also took part .

Information about intentions to resettle the ORG unlawful residents have met with strong opposition from inhabitants of neighbourhoods where such relocation was envisaged . It appears that no viable resettlement plan has ever been elaborated .

In interviews and statements , local officials supported the non - Roma population . In a radio interview in DATE , the mayor of ORG in GPE stated that “ the nuisance that a GPE settlement would create [ if GPE families were to move into his district ] would surpass by far the inconvenience that a refuse tip would create ” . He also stated that “ GPE families could not expect to live among the citizens as they did not have the necessary culture ” .

On DATE the municipal authorities served a notice on the inhabitants of the area , including the applicants , requiring them to leave their houses by DATE , failing which they would be evicted forcibly on DATE .

The notice was issued in execution of the removal order of DATE , which was final and enforceable .

DATE . On DATE the ORG indicated to the Government of GPE , under LAW , that the applicants should not be evicted from their houses until DATE , pending receipt by ORG detailed information about any arrangements made by the authorities to secure housing for the children , elderly , disabled or otherwise vulnerable individuals to be evicted .

The Government submitted a copy of a statement by PERSON , the district mayor , who indicated that CARDINAL local social homes could provide CARDINAL rooms each and that several elderly persons could be housed in a third home . There was no information about any possibility to house families together .

Also , it appears that none of the applicants was willing to be separated from the community and housed in such conditions , not least because it was impossible , according to them , to earn a living outside the community .

On DATE PERSON , the district mayor , stated that she had suspended the enforcement of the removal order “ pending the resolution of the housing problems of the PERSON residents ” . The order was not quashed .

In the light of this information , the President of the ORG ’s ORG decided on DATE to lift the interim measure of DATE , specifying that the decision was taken on the assumption that the ORG and the applicants would be given sufficient notice of any change in the authorities’ position for consideration to be given to a further measure under LAW .

On DATE ORG , which includes representatives of non - governmental organisations and is presided over by the Director of the NORP and ORG at ORG , discussed the issue . Representatives of the GPE municipality were advised to refrain from measures seeking to resolve the problem in PERSON at the expense of creating tension in other areas . The majority view was that the GPE families living in PERSON should not be evicted and their homes should not be demolished before a lasting solution was found .

According to a letter from the Director of NORP and ORG , sent in DATE in connection with the present application , the GPE municipality was working on a programme for the revitalisation of ORG . It was envisaged to construct temporary housing on several municipal plots of land . Partial initial financing of the construction work could be provided by the ORG but other sources were needed as well . It was envisaged to encourage the GPE applying for housing to take jobs in the construction work under the relevant social employment schemes . The project ’s elaboration , including architectural plans , was allegedly under way . The project concerned GPE families who moved to ORG before DATE . Those who settled there more recently had “ to return to their previous homes ” .

On DATE , in reply to a letter from residents protesting against the authorities’ failure to evict their GPE neighbours from ORG , PERSON , the district mayor , stated that the enforcement of the DATE eviction order had been postponed under pressure from members of ORG and that the applicants had started proceedings in ORG . The letter did not mention plans to secure alternative housing for the persons to be evicted .

According to media reports , in DATE plans to resettle the inhabitants of GPE vodenitsa on other ORG or municipal property were discussed by the municipal authorities .

In their latest submissions of DATE the parties have not reported any progress in the realisation of such projects .

According to the applicants , the resettlement plans mentioned by the authorities are nothing more than empty promises .

In DATE a DATE ORG ( DATE ) for ORG in GPE was adopted by ORG in the context of the international initiative entitled DATE of ORG .

In DATE , the GPE municipal council adopted a plan for the implementation of the DATE national programme in GPE for the period DATE . The document includes an analysis of the existing situation in respect of housing .

According to this analysis , overpopulated GPE settlements had formed over DATE in GPE and nothing had been done by the authorities in the past to address the ensuing problems . Having always been a marginalised group with minimal resources , the GPE can not in practice acquire real property . Traditionally they occupy vacant land and construct makeshift huts . Although most of them , being persons in need of housing , meet the relevant criteria for tenancy of municipal housing , this option does not work in practice owing to several factors , including the limited number of available municipal dwellings and unwillingness on the part of many GPE families to resettle in municipal flats . Their unwillingness could be explained partly by the lack of the necessary resources to cover the related expenses , such as utility bills , and partly by the animosities which often erupt between non - GPE residents of blocks of flats and GPE families moving in .

The DATE ORG and the DATE PERSON plan provide for the following actions , among others : elaborating municipal housing programmes , legalising buildings if they meet the relevant construction standards , constructing sewage and water - supply facilities in NORP neighbourhoods and providing information and assistance to those who apply for municipal housing .

The DATE Monitoring report on the implementation of the Decade of Roma Inclusion CARDINAL–CARDINAL programme does not mention any progress having been made in respect of GPE housing . The concluding text of the report contains a recommendation to the relevant institutions and stakeholders to make timely use of the possibilities under LAW CARDINAL(CARDINAL ) of Regulation ( ORG ) No . DATE on ORG .

According to media reports , in several regions in GPE construction works are under way for the building of dwellings intended to house GPE who have been removed or are to be removed from land which they occupy unlawfully .

Section CARDINAL of the Municipal Property Act empowers the mayor to order the repossession of real property belonging to the municipality and occupied by others if they have no legal right to occupy it . The mayor ’s order is amenable to judicial appeal . Its enforcement is effected by the police .

The new paragraph CARDINAL of section CARDINAL , added in DATE , provides that persons occupying municipal real property without a legal basis can not avail themselves of sections CARDINAL of LAW , which bestow certain rights on holders of property belonging to another ( under certain conditions , the right to reimbursement for improvements , and to withhold the property pending such reimbursement ) .

DATE . According to section CARDINAL of LAW , read in conjunction with its other provisions , buildings belong to the owner of the land except where the right to construct a building has been lawfully conveyed by the owner to another person . DATE it was not possible under NORP law to acquire ORG or municipal property through adverse possession . Since DATE , state and municipal property , if it is of the category of “ private state property ” , may in principle be acquired by private persons through adverse possession , under a number of conditions . Through a transitory provision introduced in DATE , the running of the DATE prescription period was suspended and the suspension is still in force .

The categorisation of persons in need of housing and the possibility of applying for municipal housing are governed by municipal regulations issued by each municipality in accordance with section DATE of LAW . These regulations , which differ from city to city , usually require candidates to have had their registered address in the town for DATE , to have no real property of their own , and to have resources that do not exceed a certain maximum . Typically the application must be made in writing on a form and be accompanied by a number of documents . The decision whether to recognise the need is taken by a municipal commission and is amenable to judicial appeal . Among the candidates recognised as being in need of housing , homeless persons and those living in dangerous and unhealthy conditions have priority .

In accordance with sections CARDINAL and CARDINAL of LAW , an emergency stock of municipal flats may be used to house for DATE persons whose dwellings are unsafe as being in danger of collapsing and persons with severe social or health problems .

Under sections CARDINAL and CARDINAL of ORG , in force since DATE , racially offensive statements may be considered discriminatory . The victim may file a complaint with ORG ( see , for example , Decision no . CARDINAL of DATE , where that commission established that the anti - GPE language used in a television broadcast of CARDINAL DATE amounted to prohibited discrimination ) or bring an action in court . Racially offensive statements may be criminally punishable under ORG CARDINAL and CARDINAL of LAW . The proceedings must be initiated by the victim . Separately , incitement to racial hatred is an offence punishable under LAW .

At the time when the removal order of CARDINAL DATE was issued and reviewed by the domestic courts , NORP administrative procedure law did not enshrine the principle of proportionality . Since DATE , when LAW entered into force , this principle is set out in LAW .

On DATE ORG delivered a decision on the merits of a complaint against GPE brought by ORG centre , a non - governmental organisation . The ORG found , inter alia , that “ the lack of legal security of tenure and the non - respect of the conditions accompanying eviction of GPE families from dwellings unlawfully occupied by them PERSON ] a violation of LAW , taken together with LAW . LAW concerns the right of families to “ appropriate social , legal and economic protection ” and LAW prohibits discrimination in the enjoyment of the rights set forth in the LAW .

To reach its conclusion , the ORG found that the NORP legislation allowing the legalisation of illegal constructions set conditions “ too stringent to be useful in redressing the particularly urgent situation of the housing of GPE families ” , a situation recognised by ORG . ORG also considered that the authorities had tolerated the unlawful GPE settlements for long periods and were accordingly obliged to carefully balance town planning measures against “ the right to housing and its corollary of not making individual[s ] homeless ” . ORG further found that by failing to take into consideration the specificity of the living conditions of GPE and strictly applying the rules on legalisation of buildings to them , GPE had discriminated against GPE families , whose situation differed not least as a consequence of ORG non - intervention over a certain period . Similarly , there was discrimination on account of the authorities’ failure to take into account that GPE families ran a higher risk of eviction , and the authorities’ failure systematically to find alternative accommodation for the evicted families .

On DATE ORG adopted a resolution in the case in which it noted , inter alia , the NORP delegation ’s statement before it that GPE intended to amend LAW to allow for easier legalising of existing buildings and construction of social housing .

DATE . In its DATE Recommendation on improving the housing conditions of ORG called upon member GPE , inter alia , to use proportionate response to illegal GPE settlements and seek , where possible , solutions acceptable for all parties . Also , eviction measures should include consultation with the community or individual concerned , reasonable notice , provision of information , a guarantee that the eviction will be carried out in a reasonable manner and alternative housing measures . As to daily life in existing settlements , the authorities should provide the same level of services as to other groups of the population and should , beyond that , promote better management including adequate management of neighbourhood conflicts . Housing policies should be tailored to the specific situations of the GPE communities .

In its DATE Recommendation on policies for ORG in LOC , ORG called upon Member States , inter alia , to ensure that decisions adopted by local authorities in the relevant area would not have a discriminatory effect on GPE .

In its Resolution CARDINAL(CARDINAL ) on the situation of GPE in LOC and relevant activities of ORG , ORG of ORG noted with concern that the process of GPE integration in LOC had not reached its objectives over DATE , that GPE people were still regularly victims of intolerance , discrimination and rejection based on deep - seated prejudices and that the situation of GPE with regard to education , employment , housing , health care and political participation was far from satisfactory . The ORG stated that adopting national strategies was insufficient in the absence of implementation measures at local and regional levels . It urged member GPE , inter alia , to promote a positive image of diversity , address stereotypes and prejudices , react strongly to racist discourse by public officials and tackle hate speech vis - à - vis GPE , be it in the media , politics or in civil society . As regards housing , the ORG urged member ORG to take urgent measures to prevent forced evictions of GPE camps and settlements and – in cases of unavoidable evictions – ensure that such evictions were carried out only when all procedural protections required under international human rights law were in place , including the provision of adequate alternative housing and compensation for expropriation and losses of moveable possessions damaged in the process of eviction and , in the absence of such procedural protections in the existing domestic law , introduce legislation on evictions providing safeguards and remedies in accordance with international standards .

ORG Commissioner for Human Rights , in his DATE Recommendation on the implementation of the right to housing stated , inter alia , that GPE should specify in legislation that positive measures are justified in order to promote full and effective equality provided that there was an objective and reasonable justification for such measures .

NORP In DATE ORG for Fundamental Rights issued a comparative report on the housing conditions of GPE and travellers in the GPE .

According to the report , significant numbers of GPE in LOC live in unauthorised settlements . For example , in DATE PERCENT of houses in urban NORP developments in GPE were illegally built , in DATE in GPE CARDINAL GPE lived in unregulated encampments and in DATE in GPE most GPE groups lived in squalid shantytowns .

The report also mentioned cases of forced evictions of such encampments , in particular in GPE and GPE .

ORG , in its General Comment no . CARDINAL concerning forced evictions and the right to adequate housing under LAW , stated , inter alia , that evictions should not render persons homeless or more vulnerable to human rights violations . Also , evictions must meet a number of conditions , such as prior consultation with the persons to be evicted , the giving of adequate and reasonable notice as to when the eviction will take place and the availability of judicial remedies . If those evicted can not provide for themselves , GPE should take all reasonable measures , utilising all available resources , to ensure the provision of adequate alternative housing .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE .

The applicants are of NORP origin . They had a specially protected tenancy on a flat in GPE in which the first applicant lived until DATE and the second applicant until DATE , when they left GPE and went to live in GPE .

On DATE the ORG Attorney ’s ORG ( Općinsko državno odvjetništvo u GPE ) , on behalf of GPE , brought a civil action against the applicants in ORG ( PERSON ) , seeking termination of their tenancy on the grounds that the applicants had been absent from the flat for DATE without any justified reason , and that their address was unknown .

After an attempt to serve a summons on the applicants failed , ORG appointed lawyer PERSON to represent them before the court .

On DATE ORG terminated the applicants’ specially protected tenancy by a judgment which became final on DATE .

On DATE the applicants lodged a request for the reopening of the proceedings with ORG . On DATE ORG granted the request and set aside its judgment of DATE .

On DATE that court again terminated the applicants’ specially protected tenancy , finding that the applicants had failed to provide a convincing explanation for leaving the flat at issue and for remaining passive for DATE before trying to seek information about the status of their tenancy . The applicants lodged an appeal with ORG ( Županijski sud u GPE ) , which upheld the first - instance judgment on DATE .

On DATE the applicants lodged a constitutional complaint before ORG ( Ustavni sud PERSON ) about the termination of their specially protected tenancy and claiming that they had been discriminated against . On DATE ORG dismissed their constitutional complaint as ill - founded . The decision of ORG was served on the applicants on DATE .

On DATE the applicants lodged a request for housing with ORG ( ORG regionalnog razvoja , šumarstva i vodnog gospodarstva ) and were granted a flat in GPE measuring QUANTITY .

The applicants complained about the size of the flat . On DATE they were granted another flat in ORG , near GPE , measuring QUANTITY , but they again refused to accept it .

NORP In the meantime , on DATE the applicants lodged a civil action in ORG against GPE , seeking damages and asking that their right to occupy and to acquire ownership of the flat on which they had had the specially protected tenancy be established .

On DATE the applicants complained before ORG about the length of the proceedings . On DATE ORG instructed the applicants that the complaints about the length of the proceedings fell within the competence of the lower courts and ORG ( PERSON ) .

On DATE the applicants complained to ORG about the length of the proceedings before ORG . On DATE ORG declared their complaint inadmissible on the ground that they had failed to appoint a representative to receive mail on their behalf in GPE , as required under the relevant domestic rules of procedure , since they lived abroad .

The civil proceedings before ORG are still pending .

On DATE the applicants lodged an application with the ORG complaining about the termination of their specially protected tenancy and the fairness of the proceedings before ORG . They relied on LAW , taken alone and in conjunction with LAW . They also relied on LAW .

On DATE a committee of CARDINAL judges of the ORG declared the applicant ’s application inadmissible as incompatible with the provisions of the LAW ratione temporis .

On DATE the applicants again lodged an application with the ORG , complaining under LAW about the termination of their tenancy . They also complained under LAW No . CARDINAL that by terminating their tenancy the domestic authorities had prevented them from purchasing the flat at issue on favourable terms . The applicants further complained under LAW , taken in conjunction with LAW , that their tenancy had been terminated because of their NORP origin . Lastly , the applicants complained under LAW about the outcome of the civil proceedings in respect of the termination of their specially protected tenancy before ORG .

On DATE a committee of CARDINAL judges of the ORG declared the applicant ’s application inadmissible as incompatible ratione materiae in the part concerning the applicant ’s property complaint , and substantively the same in the part concerning their other complaints .

On DATE the first applicant , acting on his own behalf and on behalf of the second applicant and their son PERSON , submitted a communication to ORG in GPE under LAW to LAW . He complained that the termination of the specially protected tenancy had , inter alia , violated their rights under LAW ( the right to equality before the courts and to a fair hearing ) , CARDINAL ( the right to a home ) , and CARDINAL ( prohibition of discrimination ) of the LAW . He also invoked LAW ( respect for human rights and effective domestic remedy ) .

On DATE ORG in GPE set out its views in communication no . CARDINAL/CARDINAL . It found that the termination of the applicants’ specially protected tenancy amounted to a violation of LAW taken in conjunction with LAW , and LAW taken in conjunction with LAW , and that there was no need to consider the question of a separate violation of LAW .


Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant is the author of a book entitled “ History in Mourning , CARDINAL bullets ” ( PERSON , QUANTITY Kurşun ) , which won the Yunus Nadi Prize .

The book was published in DATE , with a second edition appearing in DATE . It is accompanied by a preface attributed to PERSON , a well - known pro - NORP politician and leader writer whose main theme was the NORP question in GPE and who was murdered in DATE .

On DATE , in the course of a criminal investigation he was conducting in respect of PERSON , the public prosecutor at ORG ( “ the ORG ” ) requested a single judge of that court to order the seizure of the above - mentioned book as an interim measure .

By an order made on that date the judge allowed this application .

On DATE the public prosecutor charged the applicant with disseminating separatist propaganda . Noting that in his book Mr PERSON had contended that there were various nations within GPE , described the NORP nation as barbarous , maintained that the NORP were the victims of constant oppression , if not genocide , and glorified the acts of insurgents in south - east GPE , he called for the application of LAW and CARDINAL of LAW ( see paragraph CARDINAL below ) and confiscation of the book . The indictment included the following extracts from the book :

“ ... the position of the NORP in LOC is very interesting ... Having arrived as a wave of nomads , they invaded the territories of nations which were CARDINAL times more civilised than them and , not having a superior culture of their own , attempted to control these peoples - the NORP , the NORP and the NORP , for example - by tyranny , violence and inhuman acts . Is it now to be expected that such an organisation , this barbarous mechanism founded on violence , this ORG order , will implement democratic decisions ? That would be a vain hope ... Even DATE , it is this mentality which prevails in GPE . For example , if one were to say that GPE belongs to the NORP , GPE to the NORP , ‘ Lazistan’ to the ‘ Laz’ and the territory of PERSON to the ‘ Rūmis’ , what would be left for the NORP ? ... In the LOC and LOC there is not a single people whom [ the NORP ] have not persecuted . That is why DATE the NORP realise that the NORP , the NORP ... and , internally , the NORP regard them as enemies . As a result , it has become axiomatic among [ the NORP ] that , as the saying has it , ‘ A NORP ’s only friend is another Turk’ . ... Several groups , such as the NORP , the NORP and the NORP , have won their freedom from this barbarous administration . Only the NORP remain . Both NORP and NORP are at a loss to know what to do about this situation . A NORP from NORP denies the NORP who lives in GPE . A GPE may neither give his father ’s forename to his son nor choose his name ... [ preface , pages CARDINAL ]

... that being said , the revolt of the NORP peasants at Silopi had led to reactions on a larger scale ; the NORP exploded in fury against the massacre of their fellow NORP . The NORP people , who once took command of the peoples of LOC in their struggle against NORP despotism , were announcing , through their resistance , the joyful news of DATE when they would tear down the fortress of violence of NORP chauvinism ... [ chapter entitled “ The infinity of NORP ” , pages CARDINAL - CARDINAL ] ”

Before ORG the applicant denied the charges . He argued in particular that he could not be held responsible for the content of the preface written by PERSON . That argument was not accepted by the judges because PERSON , who had been heard by them as a witness , had explained that he had never intended to write a preface for the book but had merely handed over to the applicant , at his request , a periodical containing an article he had written DATE before .

The applicant also submitted that in writing the book his intention had never been to work towards separatist ends but to set out his thoughts about incidents that had taken place in GPE , his native province , and had claimed the lives of CARDINAL peasants , including members of his family .

NORP On DATE ORG sentenced the applicant to DATE and CARDINAL months’ imprisonment and ordered the book ’s confiscation .

In its judgment it noted in particular that in order to criticise ORG policy he had related without objectivity in his book certain events which had occurred in eastern and south - eastern GPE , and that he had maintained that the NORP were oppressed and crushed by the violence of the gendarmerie , which sometimes even shot them down , and that the fundamental rights of the NORP people had been trampled on . It held in particular :

“ In the book certain parts of the national territory are referred to as the NORP region or provinces and it is explained that these must belong to the NORP , that they form their country , called GPE ; moreover , it is stated that the NORP , coming from NORP , have driven the NORP out of GPE and that this region has entered into a general war and is in a state of resistance . ”

The ORG emphasised the extreme importance for society of being informed of the events in question and of the facts which had led to them , which should be related without comment , but stated that the content of the book , although presented as research findings , went well beyond such an aim .

Accepting the prosecution submissions , ORG held that the theme which could be discerned throughout the book , and particularly in its preface , amounted to separatist propaganda based on racial considerations and intended to weaken patriotic sentiment , and that this justified Mr PERSON ’s conviction .

On DATE the Prevention of Terrorism Act ( Law no . CARDINAL ) came into force . It repealed , inter alia , LAW , on which the applicant ’s conviction had been based . As a result , by a further judgment of CARDINAL DATE , ORG declared Mr PERSON ’s conviction null and void and ordered the return of the confiscated copies of the book .

Mr PERSON ’s book was republished on DATE .

On DATE the public prosecutor asked ORG to order its seizure on the ground that its republication contravened section CARDINAL of Law no . ORG , which prohibited all propaganda against “ the indivisible untiy of the State ” ( see paragraph CARDINAL below ) .

By a decision of DATE a single judge of the court rejected this application on the ground that the constituent elements of the offence had not been made out .

The public prosecutor repeated his application on DATE , arguing in particular that the acts which constituted the offence contemplated in former LAW of LAW did not differ in any way from those made punishable by section CARDINAL(CARDINAL ) of PERSON no . ORG . He submitted that it was illogical not to find that the book constituted propaganda against the indivisible unity of the State when its seizure had been ordered on CARDINAL DATE on the ground that it conveyed separatist propaganda ( see paragraph CARDINAL above ) . On CARDINAL DATE the single judge rejected the application .

On DATE , at the request of the public prosecutor , ORG ordered the principal public prosecutor at ORG to lodge an appeal in the interests of clarifying the law against the decision of CARDINAL DATE ( see paragraph CARDINAL above ) .

ORG dismissed that appeal in a judgment of CARDINAL DATE , on the ground that it was for the judge dealing with the case to assess the expediency of an interim measure and that the question whether the content of a publication was contrary to the law could be determined only by a judgment on the merits .

In an indictment of CARDINAL DATE the public prosecutor accused PERSON and his publisher of disseminating propaganda against “ the indivisible unity of the ORG ” within the meaning of section CARDINAL(CARDINAL and CARDINAL ) of PERSON no . ORG ( see paragraph CARDINAL below ) .

He reproduced the extracts included in his submissions of CARDINAL DATE ( see paragraph CARDINAL above ) and referred to other passages in the book , including the following :

“ ... The NORP people , who until recently were utterly disorganised , in disarray and torn in different directions , have called “ Halt ! ” , refusing this destiny imposed on them , and have now begun to take giant strides towards the accomplishment of their own destiny . Those who for DATE have kept these people in chains and exploited their labour panicked when they saw the seeds of resistance [ the NORP ] had cherished in their hearts in the face of such injustice and indignity beginning to sprout . As one of the main features of the special war , and in order to serve rulers who responded with massacres to the resistance of the great majority of the NORP people against the policies of deportation , threats , arrest , torture and oppression , the special forces have found no better way of expressing their feeling of defeat at the hands of the ORG militants than to massacre peasants . The slaughter of the peasants at Silopi announced the advent of a new epoch in the developments taking place in those regions where NORP form a majority of the population . The special war being conducted in that region between the security forces and ORG guerillas was coming to an end . A new era of total war was beginning … The ORG , which for DATE had been mobilising troops in large numbers and sending them to the Botan region DATE particularly the Cudi mountains – had not been able to prevent [ the ORG ’s ] armed raids and , once the ORG had realised that its latest operations [ against the ORG ] – whose scale was so much exaggerated by the press – had led to nothing , it decided to follow the historic example of the repression of the rebellion of PERSON and implement the final solution – genocide . From then on , every effort would be made to reach that solution . They began with Silopi ; the squadrons of death tried by every means they had to make progress with their manhunt . Like the counter - insurgency agents , the gangs and the village guards let loose in the NORP regions , those clan leaders who were in the pay of the government also received the order to drink NORP blood … ”

Before ORG the applicant once more contested the charges brought against him , arguing in particular that the book was based on real events and on his observations as a journalist . He had done nothing more than relate certain events in the context of his professional activity .

On DATE ORG found the applicant guilty of disseminating propaganda against “ the indivisible unity of the ORG ” and sentenced him , pursuant to section CARDINAL(CARDINAL ) of PERSON no . ORG , to DATE and CARDINAL months’ imprisonment and a fine of MONEY .

In its judgment ORG made it clear at the outset that the fact that the applicant ’s previous conviction had been declared null and void on CARDINAL DATE ( see paragraph CARDINAL above ) did not stand in the way of fresh charges being brought against him on the basis of a different provision of criminal law . As to the merits of the case , the court referred to certain passages of the book and – following in large part the same line of reasoning as in the judgment of CARDINAL DATE ( see paragraph CARDINAL above ) – held that the applicant had intended to incite citizens of NORP origin to rebel against the ORG .

On DATE the applicant appealed against this judgment to ORG . In order to prove that Mr Anter was in fact the author of the preface , he asked for a witness to be heard . He maintained that the first part of the book related in a dramatised form a historic event and that the second part was only a collection of recent articles . In addition , his conviction for criticising the oppression of the NORP population constituted a serious threat to his freedom of expression .

On DATE ORG declared the appeal inadmissible on the ground that it was out of time . The applicant then appealed to ORG . Repeating the arguments set out above , he contended that to convict someone for expressing his thoughts was unacceptable in a modern society and that a country could not be said to have any “ unity ” or “ integrity ” if even the preface of a book was thought capable of endangering them .

ORG gave judgment against Mr PERSON in a judgment of DATE , holding that the assessment of the evidence conducted by ORG justified the rejection of the applicant ’s grounds of appeal .

Paragraphs CARDINAL and CARDINAL of former LAW , repealed by PERSON no . ORG ( see paragraph CARDINAL below ) , provided :

“ CARDINAL . A person who , prompted by racial considerations , by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public - law rights guaranteed by the LAW or undermining or destroying patriotic sentiment shall , on conviction , be liable to a term of imprisonment of from DATE .

Where the offences contemplated in the above paragraphs are committed through publication , the penalty to be imposed shall be increased by CARDINAL . ”

Law no . ORG was promulgated on DATE . Section CARDINAL , ( subsequently repealed by PERSON no . CARDINAL of DATE ) was worded as follows :

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY . ”

The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON – see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor ’s decision included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .

Furthermore , the Government submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the following judgments : CARDINAL , DATE , CARDINAL , CARDINAL and CARDINAL ; DATE , DATE , DATE , CARDINAL and CARDINAL ; DATE , CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL ; DATE , CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ; CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ; CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ; CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ; DATE , CARDINAL , DATE , DATE , DATE , DATE and CARDINAL .

As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of “ propaganda ” , CARDINAL of the constituent elements of the offence , or on account of the scientific , historical and/or objective nature of the words used .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

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

The applicant ’s wife died on DATE . In DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . He made a second application to the benefits agency in DATE . On DATE he was informed that he was not entitled to benefits as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

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

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


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

NORP Before the DATE - CARDINAL war in GPE , the applicant lived in GPE in a socially owned flat over which he had an occupancy right ( the concept of “ socially owned flats ” is described below ) .

On DATE the competent administrative authority confirmed the applicant ’s occupancy right over the flat in PERSON , but stated , however , that the building in which the flat was located had been destroyed during the war .

On DATE the applicant asked the local authority to allocate him a replacement flat . However , he did not receive any reply .

On DATE the applicant initiated civil proceedings against the local authority before the ORG ( “ the ORG ” ) , seeking to be allocated a replacement flat . On DATE ORG invited the local authority to submit a response to the applicant ’s claim . As they failed to do so , ORG adopted a judgment on DATE without a hearing , in accordance with section CARDINAL of LAW DATE ( see paragraph CARDINAL below ) . It held that the applicant was entitled to a replacement flat because his occupancy right over a destroyed flat had been confirmed by the competent administrative authority . Therefore , it ordered the local authority to allocate him a suitable replacement flat in GPE , in lieu of the one in respect of which he had had an occupancy right and which had been destroyed during the war . Pursuant to the aforementioned provision of LAW DATE , that judgment became final on DATE ( see paragraph CARDINAL below ) .

On DATE ORG rejected the local authority ’s request for restitutio in integrum . It would appear that they did not appeal to a higher court .

On DATE the applicant initiated enforcement proceedings . On DATE ORG refused to issue a writ of execution , stating that the judgment of DATE was not enforceable because it did not contain any indication of the location and the surface area of the replacement flat . That decision was upheld by ORG ( " ORG " ) on DATE .

On DATE the applicant complained to ORG the LAW ” ) of the non - enforcement of the judgment of DATE . On DATE ORG upheld the rulings of the lower courts and instructed the applicant to start new civil proceedings against the local authority in order to establish the latter ’s precise obligation regarding the flat to be allocated to him . That decision was delivered to the applicant on DATE .

It would appear that the judgment of DATE remains unenforced . It would also appear that the applicant did not start new civil proceedings against the local authority .

In the former ORG practically all flats were built under the regime of “ social ownership ” . They were generally built by socially owned enterprises or other public bodies for allocation to their employees , who became “ occupancy right holders ” . The rights of both the allocation right holders ( public bodies which nominally controlled the flats ) and the occupancy right holders were regulated by law ( LAW DATE , which is still in force in GPE ) .

In accordance with this LAW , an occupancy right , once allocated , entitled the occupancy right holder to permanent , lifelong use of the flat against the payment of a nominal fee . When occupancy right holders died , their rights transferred , as a matter of right , to their surviving spouses or registered members of their family who were also using the flat ( sections DATE and CARDINAL of this Act ) . The concept of “ social ownership ” was abandoned during the DATE - CARDINAL war . As a result , socially owned flats were effectively nationalised ( for more information about socially owned flats see PERSON GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

ORG DATE prescribed the procedure for repossession of pre - war flats and the rights of occupancy right holders . LAW provides that claims for repossession should be submitted to the competent administrative authority .

Section CARDINAL of the LAW of the Restitution of Flats Act DATE provides that the competent administrative authority shall decide on claims for repossession of flats which were damaged or destroyed during the war . A decision accepting such a claim should contain confirmation of the claimant ’s occupancy right over the destroyed / damaged flat , as well as an instruction that the occupancy right holder is entitled to its repossession in the event that the flat is reconstructed ( section CARDINAL of the Instruction ) .

In accordance with CARDINAL ) of LAW DATE , if a defendant who has been duly served with a plaintiff ’s claim fails to submit a written response to it within the set time - limit , the court shall accept the claim , if it has been so requested , unless it is manifestly ill - founded . A claim is manifestly ill - founded if it evidently contravenes the facts on which it is based or if the facts from the claim contravene the evidence proposed by the plaintiff or well - known facts ( section CARDINAL(CARDINAL ) of this Act ) . If a decision is taken in accordance with the aforementioned provision an appeal is not allowed ( section CARDINAL ) of this Act ) .

Section CARDINAL(CARDINAL ) of LAW DATE provides that a judgment is not enforceable unless , among other things , it contains an indication of the object of its enforcement .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in DATE and lives in GPE .

On CARDINAL DATE the applicant ’s husband was issued an occupancy voucher ( yaşayış orderi ) to an apartment in GPE on the basis of an order of ORG . On DATE the applicant ’s husband died .

On an unspecified date the applicant became aware that the apartment had been occupied by ORG and her family , who were internally displaced persons ( “ ORG ” ) . According to the applicant , despite her numerous demands , the family refused to vacate the apartment .

NORP In DATE the applicant lodged a court action with ORG asking the court to order the relevant authorities to change the documents of the apartment into her name and the eviction of PERSON and her family from the apartment . On DATE ORG partly granted the applicant ’s request . The court held that the defendants had no right to use the apartment and that they unlawfully occupied it and ordered their eviction from the apartment . Concerning the changes in the apartment ’s documents , the court held that it was not possible to provide the applicant with the relevant documents as the construction of the building had not yet been terminated . No appeals were filed against this judgment and , pursuant to the domestic law in force at the material time , it became enforceable within DATE after its delivery . However , the ORG family refused to comply with the judgment .

In DATE the applicant lodged an action with ORG asking compensation for non - enforcement of the judgment of CARDINAL DATE . On DATE the ORG and on DATE ORG dismissed the applicant ’s request . On DATE ORG upheld the lower courts’ judgments .

At the time of the latest communication with the applicant , the judgment of CARDINAL DATE in her favour remained unenforced .

The relevant domestic law is summarised in the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


CASE OF FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM

Violation of Art. 5-1;No violation of Art. 5-2;Violation of Art. 5-5;Not necessary to examine Art. 5-4 and 13;Just satisfaction reserved

ORG The first and second applicants , Mr PERSON and PERSON , are husband and wife but separated . Both reside in GPE , GPE .

ORG On DATE they were stopped by the police in GPE and brought to ORG ( " ORG " ) station , where a full search of the vehicle in which they were travelling was carried out . TIME after their arrival at the police station , at TIME , they were formally arrested under LAW ( CARDINAL ) of GPE ( Emergency LAW Act DATE ( " LAW " ; see paragraph CARDINAL below ) . They were informed that they were being arrested under this section and that this was because the arresting officer suspected them of being terrorists . They were also told that they could be detained for TIME . They were taken to ORG , where they were separately interviewed by the police on DATE TIME

ORG During their detention Mr PERSON and PERSON were asked about their suspected involvement DATE in intelligence gathering and courier work for ORG ( " Provisional IRA " ) . They were also questioned about their suspected membership of this organisation . According to the Government , the information underlying the suspicion against them was already known to the police when they stopped their car .

No charges were brought against either applicant . The first applicant was released at TIME on DATE and the TIME . Excluding the time taken to bring them to the police station , the first applicant had thus been detained TIME and the second applicant TIME and TIME .

ORG On being arrested both PERSON and PERSON were shown the notice drawn up for persons held in police custody which explained their rights . They were not brought before a judge or given any opportunity to apply for release on bail . On DATE they both initiated proceedings for habeas corpus but were released before the applications came on for hearing before a judge .

ORG Mr PERSON had been convicted in DATE of several explosives offences , for which he received concurrent sentences of CARDINAL years’ imprisonment , and of belonging to the IRA , for which he received a concurrent sentence of DATE . PERSON received an CARDINAL months’ suspended sentence in DATE after being convicted of involvement in explosives offences .

ORG The third applicant , Mr PERSON , resides in PERSON , GPE , GPE . On DATE he was arrested at his home , in his GPE presence , at TIME He was informed at the time of his arrest that he was being arrested under LAW ( CARDINAL ) of LAW as he was suspected of being a terrorist . He was taken to GPE police station where , on arrival , he was shown a copy of the notice for persons held in police custody . He was interviewed there by the police TIME

Mr PERSON was suspected of involvement in a kidnapping incident which had taken place DATE in GPE when a young man and woman were forcibly taken away by masked armed men . Those involved in the kidnapping were thought to have connections with ORG . The motive behind the kidnapping was believed to have been an attempt to force the young woman to retract an allegation of rape made DATE as a result of which a person had been convicted and sentenced to DATE imprisonment . The ORG said at the Commission hearing that their record of the first interview with PERSON showed that he was questioned about terrorist activities in a specific small , geographical area , and about his involvement with the Provisional IRA . The record is not more detailed than that , but the area in question was where the kidnapping took place . The applicant PERSON denied any involvement in the kidnapping incident but he has not contradicted the ORG ’s assertion that he was asked about it .

No charges were brought against him . He was released on DATE at TIME after TIME in detention . He brought no proceedings in connection with his arrest or detention .

ORG For DATE the population of GPE , which totals CARDINAL people , has been subjected to a campaign of terrorism ( see the GPE v. the GPE judgment of DATE , Series A no . CARDINAL , pp . DATE , § § DATE , and the PERSON and Others judgment of CARDINAL DATE , Series A no . CARDINAL-B , p. CARDINAL , § CARDINAL ) . CARDINAL people , including CARDINAL members of the security forces , have been killed and CARDINAL more have been maimed or injured . The campaign of terror has extended to the rest of GPE and to the mainland of LOC .

Special legislation has been introduced in an attempt to deal with this situation in GPE . Thus , LAW and its predecessors , GPE ( Emergency LAW Act DATE ( " the CARDINAL LAW ) and LOC ( Emergency Provisions ) LAW DATE ( " LAW " ) , were enacted to enable the security forces to deal more effectively with the threat of terrorism .

ORG LAW of LAW conferred , inter alia , a power of arrest . The relevant parts of LAW , which was repealed in DATE , provided as follows :

" CARDINAL . Any constable may arrest without warrant any person whom he suspects of being a terrorist .

A person arrested under this section shall not be detained in right of the arrest for CARDINAL after his arrest , and section CARDINAL of LAW ( GPE ) DATE and section CARDINAL(CARDINAL ) of ORG ) DATE ( requirement to bring arrested person before a GPE court not TIME after his arrest ) shall not apply to any such person . "

Sub - section ( CARDINAL ) gave a power to enter and search LOC where a suspected terrorist was or was suspected of being . Under sub - section ( CARDINAL ) persons arrested under LAW could be photographed and their finger prints and palm prints taken by a constable .

ORG LAW ( CARDINAL ) of LAW defines " terrorist " and " terrorism " . A terrorist is " a person who is or has been concerned in the commission or attempted commission of any act of terrorism or in directing , organising or training persons for the purpose of terrorism " . Terrorism is defined as " the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear " .

Under section CARDINAL of , and Schedule CARDINAL to , LAW , certain organisations - one of which is the IRA , the Provisional IRA included - are proscribed organisations . It is an offence to belong to or profess to belong to such an organisation , to solicit or incite support for any such organisation , knowingly to make or receive any contribution to it , to solicit or invite a person to become a member or to carry out on its behalf orders or directions or requests by a member of the organisation .

ORG The powers of arrest and detention under LAW of LAW were originally an integral part of the scheme of interim custody introduced by LAW to replace internment ( see the GPE v. the GPE judgment previously cited , Series A no . DATE , pp . CARDINAL - CARDINAL , § CARDINAL ) . By DATE this scheme ( as re - enacted in the DATE and DATE Acts ) had been repealed with the exception of LAW and the power was thereafter used as a free - standing power of arrest and detention for TIME .

Since its enactment in DATE the legislation conferring this power was subject to periodic renewal by ORG . Thus , under LAW ( section CARDINAL ) the relevant provisions became renewable , and were renewed , DATE until their repeal in DATE .

ORG In DATE the Secretary of ORG for GPE invited Sir PERSON , a retired senior member of the judiciary , to examine the operation of the DATE Act to determine whether its provisions struck the right balance between maintaining as fully as possible the liberties of the individual whilst conferring on the security forces and courts adequate powers to protect the public from terrorist crime . There followed a number of recommendations in a report which was published in DATE ( Command Paper , ORG . DATE ) . In his report Sir PERSON made the following remarks :

" CARDINAL . Generally I find it unhelpful in making recommendations in DATE to go back further than DATE but to understand the arrest and detention sections of the [ CARDINAL Act ] it is useful to note that LAW of LAW ( GPE ) DATE provided :

‘ Any Officer of the ORG for the preservation of the peace and maintenance of order , may authorise the arrest without warrant and detention for a period of not more than TIME of any person for the purpose of interrogation.’ ( My emphasis ) .

This general power of arrest for questioning did not disappear entirely when LAW was repealed by GPE . It was re - worded and to some extent re - enacted in the [ CARDINAL Act ] and ORG [ the Prevention of Terrorism ( Temporary Provisions ) Acts DATE and DATE ] . But nowhere in these acts do the words ‘ for the purpose of interrogation’ appear . That is left to be inferred . There is widespread criticism of the alleged illegal use of arrest for ‘ information gathering’ or low grade intelligence and harassment . It might be better if the power of the ORG were expressly spelled out in the LAW linked of course to appropriate controls . That the police have such a power under the ORG was accepted by ORG in ORG ) in NORP v. PERSON ( DATE ) ORG .

In contrast to the provisions of the [ CARDINAL Act ] which deal with the trial of terrorist offences and do not require derogation from DATE ( article CARDINAL ) of ORG , those which deal with the powers of arrest appear to contravene the minimum requirements of LAW ) . Consequently GPE entered a notice of derogation under LAW article CARDINAL ) . LAW ) ( article DATE ) requires reasonable suspicion of having committed an offence and arrest for the purpose of bringing the offender before a competent court . LAW [ of LAW ] requires neither , nor is an offence necessary . ... Any action which can be taken to avoid GPE having to rely on the notice of derogation to excuse breaches of the Convention is desirable .

Suspicion or reasonable suspicion

Only a lawyer or a legislator would suspect ( or reasonably suspect ? ) a difference . But there is one because , say the judges , with whom I agree , ORG by using the CARDINAL phrases must have so intended . The test for LAW is a subjective one : did the arrestor suspect ? If his suspicion is an honest genuine suspicion that the person being arrested is a terrorist , a court can not enquire further into the exercise of the power . But where the requirement is reasonable suspicion it is for the court to judge the reasonableness of the suspicion . It is an objective standard . The facts which raise the suspicion may be looked at by the court to see if they are capable of constituting reasonable cause . Reasonable suspicion is itself a lower standard than evidence necessary to prove a prima facie case . Hearsay may justify reasonable suspicion but may be insufficient for a charge .

The only danger that I can foresee if the requirement of reasonableness is added to suspicion is that the facts raising the suspicion might have come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest . Against this there is the requirement of reasonable suspicion in LAW ORG which the ORG have used more extensively in DATE and DATE . The figures for arrests are :

Under S.CARDINAL Under S.CARDINAL ORG

[ of LAW ]

DATE CARDINAL CARDINAL

DATE ( to DATE ) CARDINAL CARDINAL ...

The criterion of whether to use one in preference to the other in any given case has been the length of time the person to be arrested may be held .

No evidence has been given to me to suggest that suspicion as against reasonable suspicion has been a factor in a decision to use LAW in preference to LAW and indeed some senior police officers have told me it would not influence them . I also understand that the police are now trained to treat arrest for terrorist offences as requiring similar suspicion as for all other offences . I therefore conclude that reasonable suspicion should be required when a constable arrests without warrant and this should be included in the new arrest powers which I propose in substitution for LAW ) and in Section CARDINAL(CARDINAL ) .

There is no need to name a specific offence when arresting under LAW or to inform the suspect of the grounds on which he is being arrested as would be required by the common law , which is that ‘ a citizen is entitled to know on what charge or suspicion of what crime he is ORG . It is sufficient to say that the arrest is under the section on the grounds that he is suspected of being a terrorist . ... "

ORG The exercise of the power of arrest in LAW ( CARDINAL ) has been considered by ORG in the case of LOC v. Chief Constable for GPE [ DATE ] CARDINAL All England Law Reports DATE . In that case ORG held that the proper exercise of the power of arrest in CARDINAL depended upon the state of mind of the arresting officer . It was necessary that the arresting officer suspected the person he was arresting to be a terrorist ; otherwise the arrest was unlawful . He could form that suspicion on the basis of information given to him by his superior officer , but he could not arrest under LAW on the instructions of a superior officer who held the necessary suspicion unless the arresting officer himself held that suspicion . Lord PERSON , with whom the other Law Lords agreed , stated that the suspicion need not be a reasonable suspicion but it had to be honestly held . The requirement of a suspicion in the mind of a constable was a subjective test . That being so , the courts could only enquire as to the bona fides of the existence of the suspicion . The only issues were whether the constable had a suspicion and whether it was honestly held .

ORG In addition , an arrest without warrant is subject to the common law rules laid down by ORG in the case of ORG DATE ] Appeal Cases CARDINAL at CARDINAL and CARDINAL . The person arrested must in ordinary circumstances be informed of the true grounds for his arrest , in a language which he understands , at the time he is taken into custody , or , if special circumstances exist to excuse this , as soon thereafter as it is reasonably practicable to inform him . A person is validly arrested under LAW ( CARDINAL ) of LAW if he is informed that he is being arrested under this provision as a suspected terrorist ( in re PERSON [ DATE ] ORG Reports CARDINAL and LOC v. Chief Constable , loc . cit . ) .

Section CARDINAL ( CARDINAL ) of LAW was replaced by section CARDINAL of GPE ( Emergency Provisions ) Act DATE , which came into effect on DATE , subsequent to the facts of the present case . This new provision is confined to conferring a power of entry and search of LOC for the purpose of arresting persons under LAW of ORG ( Temporary LAW DATE ( now section CARDINAL of ORG ( Temporary Provisions ) Act DATE - see the PERSON and Others judgment previously cited , Series A no . CARDINAL-B , p. CARDINAL , § CARDINAL ) . These latter provisions expressly limit powers of arrest without a warrant to cases in which there are " reasonable grounds " for suspicion .

ORG A person who believed that his arrest or detention under LAW was unlawful had CARDINAL remedies , namely ( a ) an action for writ of habeas corpus , whereby a detained person may make an urgent application for his release from custody , and ( b ) a civil action claiming damages for false imprisonment ( see the PERSON and Others judgment previously cited , Series A no . CARDINAL-B , p. CARDINAL , § § DATE ) . In either action the review of lawfulness would have encompassed procedural questions such as whether the arrested person has been properly informed of the true grounds for his arrest ( ORG , loc . cit . ) ; and whether the conditions for arrest under LAW ( CARDINAL ) had been complied with . As noted above , a court would not have enquired into the reasonableness of the suspicion grounding the arrest but rather whether the suspicion of the arresting officer was an honest one ( LOC v. Chief Constable , loc . cit . ) .