Violation of Art. 5-3 with regard to right to be brought promptly before a judge;No violation of Art. 5-1;Violation of Art. 5-3 with regard to length of pre-trial detention;Violation of Art. 5-4 on account of lack of access to file;Violation of Art. 5-4 with regard to first appeal against detention;No violation of Art. 5-4 with regard to second appeal against detention;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in GPE , in the region of GPE .

On DATE the applicant was arrested on suspicion of having stolen from a Ms S. gold jewellery and money worth CARDINAL NORP levs ( “ ORG ” ) . In view of the value of the stolen objects and money , the offence with which the applicant was charged constituted a “ serious ” offence , within the meaning of LAW .

According to the indictment drawn up later , the applicant , who had been employed by a private security company to keep PERSON house , had taken advantage of her and her family ’s departure on holiday to steal the above valuables on DATE . On DATE he had taken some of the jewellery and money to his sister ’s home . DATE , having learned that PERSON had discovered the theft , the applicant had travelled to the nearby city of GPE to sell some of the jewellery before returning home . On DATE the applicant and his family ( his wife and their DATE child ) had visited the applicant ’s mother in the town of ORG . There the applicant had given his mother the remaining money .

On DATE of his arrest and on being questioned by an assistant investigator the following day , DATE , the applicant admitted the theft and directed the police to the persons who had bought some of the stolen jewellery from him . The majority of the valuables were recovered by the police DATE . The applicant ’s mother returned the money she had been given by her son .

NORP The period DATE and DATE was taken up by procedural acts . No new evidence was collected during that period . The applicant was not interrogated .

On DATE the assistant investigator transmitted the file to ORG inviting it to reclassify the proceedings , which had begun as a summary investigation ( дознание ) , into an ordinary investigation ( следствие ) . On DATE ORG transmitted the case file to ORG , as it considered that the proceedings came within the latter ’s competence . By a decision dated DATE a prosecutor from ORG found that the case fell to be dealt with by ORG and gave instructions for its return . On DATE the case file was transmitted to ORG .

By a letter of DATE the applicant ’s lawyer complained to ORG of the delays in the proceedings and stated that he had been unable to obtain detailed information about the accusation and had been refused access to the case file . He also requested the removal of the district prosecutor .

On DATE that request was transmitted with the case file to ORG . On DATE it was dismissed and the case file was sent back to ORG .

On DATE ORG decided to reclassify the proceedings as an ordinary investigation and not a summary investigation . On DATE the case was assigned to an investigator with instructions to treat it as urgent in view of the fact that the accused was remanded in custody .

DATE and DATE the investigator questioned the applicant twice , summoned CARDINAL witnesses , requested information from ORG about the exchange rates of certain currencies , appointed an expert to assess the value of the stolen objects , and brought charges against the applicant ’s sister , PERSON , who had allegedly aided the applicant in selling the stolen objects .

The period after DATE was taken up by procedural steps and efforts to clarify the exact number , weight , quality and value of certain missing pieces of jewellery , the difficulty being that there were discrepancies between the descriptions given by the applicant and by the owner .

On DATE the investigator put an additional question to the expert .

On DATE the investigator reformulated the charges against the applicant , notified him accordingly and questioned him briefly . On DATE the investigator concluded his work on the case and transmitted the file to ORG .

On DATE ORG referred the case back to the investigator , instructing him to appoint another expert to assess the value of the jewellery and to amend the charges . On DATE the investigator appointed an expert . On DATE the investigator amended the charges against the applicant and his sister , notified them accordingly and questioned them briefly .

On DATE the investigator requested an extension of time in which to complete the investigation . The request , which was submitted through ORG , was transmitted to ORG on DATE . It appears that the case file was attached . The request was granted and the case file returned on an unspecified date at DATE .

On DATE an indictment was submitted to ORG . On DATE ORG sent the case back to the prosecutor for further investigation .

On DATE the prosecutor , considering that the value of the stolen objects was lower than that initially indicated , terminated the criminal proceedings as regards the excess and lodged a fresh indictment . ORG listed the case for hearing on DATE . The parties have not informed the ORG of any further developments .

The applicant was arrested on DATE . On DATE he was brought before an assistant investigator who charged him and decided that he should be remanded in custody . The detention order , which was made on the basis that the applicant was charged with a serious offence , stated that there existed a danger of the applicant ’s absconding or committing offences , without providing reasons . It was either authorised in advance or approved on DATE by a prosecutor .

On DATE the applicant appointed a lawyer to represent him .

On DATE the applicant ’s lawyer prepared an appeal to ORG against his client ’s detention pending trial . The appeal was submitted through ORG , as required by LAW .

There is a dispute between the parties as to the date on which the appeal was actually submitted to ORG . The applicant maintains that the appeal was handed over to the duty prosecutor on DATE who , in accordance with the usual practice , transmitted it to the clerical staff without registering it himself . According to the Government , the date on which the appeal was registered , DATE , should be considered as the date of its submission , there being no proof that it had been submitted earlier .

On DATE , having established that his appeal against the applicant ’s detention had not arrived at ORG , the applicant ’s lawyer submitted another copy thereof directly to ORG .

On DATE ORG transmitted the applicant ’s appeal against his detention to ORG . On DATE a judge at ORG listed the case for hearing on DATE . The applicant ’s lawyer was summoned by telephone on DATE .

ORG held a hearing on DATE in the presence of the applicant , his lawyer and a prosecutor .

The prosecutor stated that the appeal should be rejected on formal grounds as it had been submitted after the expiry of the DATE time - limit under LAW of LAW .

The applicant ’s lawyer explained that he had been refused access to the case file , which had prevented him from preparing the appeal on time .

By a decision of DATE ORG rejected the appeal . Noting that the appeal was dated DATE whereas the decision to detain the applicant had been taken and notified to him on DATE , and observing that the applicant had authorised a lawyer to represent him on DATE , the court found that the appeal had been submitted after the expiry of the relevant DATE time - limit and was inadmissible .

ORG further stated that there had been “ no change of circumstances ” within the meaning of LAW of LAW ( see paragraph CARDINAL below ) .

On an unspecified date CARDINAL DATE the applicant ’s lawyer submitted through ORG a second appeal against his client ’s detention pending trial . He stated inter alia that the applicant had admitted the theft , had directed the police to the stolen objects and had been co - operative . Also , there was no danger of his absconding because he had a wife and a young child , and no danger of his committing offences because he had no previous convictions and had shown remorse for his acts . The lawyer further stated that the relevant facts had already been established and that the applicant was not responsible for the prosecution ’s difficulties in determining the exact value of the jewellery , such that there was no justification for his continuing detention .

The lawyer , who had been appointed by the applicant in DATE to replace his previous lawyer , did not indicate his address and telephone number on the appeal papers . The parties have not clarified whether this information appeared on other documents in the case file .

On DATE the appeal was transmitted to ORG . By an order made on DATE , CARDINAL DATE the ORG listed the matter for hearing on DATE , DATE at TIME , and summoned the applicant in person and the prosecutor . The applicant was summoned through the prison authorities .

On DATE ORG heard the applicant and the prosecutor . The applicant ’s lawyer was not present . The applicant stated that he had admitted the offence , he had a DATE child and wanted to preserve his family . He explained that at the time of the theft he had been suffering from depression due to financial problems .

ORG refused to release the applicant . It noted that the charges against him concerned a serious wilful offence punishable by DATE imprisonment and that LAW required that persons accused of offences of that category be remanded in custody . Furthermore , the investigation was still pending and there , therefore , existed a danger of his absconding or seeking to pervert the course of justice . The fact that the applicant had made a full confession did not affect in any way the question whether he should be remanded in custody . The court further stated that the applicant ’s argument concerning his family could not serve as a ground for his release and added that he should have thought about his family before committing the offence .

On DATE the applicant submitted through ORG a third appeal against his detention pending trial . On DATE ORG transmitted the appeal to ORG .

ORG heard the appeal on DATE in the presence of the applicant and his lawyer . The prosecutor stated that the applicant should be released .

ORG decided to release the applicant on bail . It noted that he had a permanent address , had not obstructed the investigation , and did not have a criminal record . ORG further stated that the investigator had expressed the opinion that the applicant ’s detention pending trial “ had produced its effects ” . Furthermore , there was no danger of his perverting the course of justice because the investigation had been concluded and no danger of absconding in view of his family situation .

The applicant gave a recognizance and was released on an unspecified date in DATE .

The applicant produced copies of correspondence in DATE and DATE from the presidents of ORG and of ORG to the local ORG , apparently in reaction to complaints by lawyers of an existing practice of barring access to case files in cases concerning appeals against pre - trial detention .

The president of ORG acknowledged that the complaints were well - founded and stated , inter alia , that , “ [ GPE , ORG judges rely on the hitherto prevailing practice and do not share my opinion ... ”

The president of ORG informed ORG that the matter had been discussed at length and that the judges had agreed that , contrary to the opinion of ORG and ORG in GPE , there were no legal grounds for refusing access to case files in appeals against detention proceedings .

At the relevant time and until the reform of DATE an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody . The investigator ’s decision was subject to approval by a prosecutor .

The role of investigators and prosecutors under NORP law has been summarised in paragraphs CARDINAL of the ORG ’s Nikolova v. GPE judgment ( [ ORG ] , no . ORG , ORG CARDINAL-II ) .

The legal grounds for detention pending trial were set out in DATE and CARDINAL of LAW , which , as worded at the material time , provided as follows :

“ ( CARDINAL ) ORG pending trial shall be ordered [ in cases where the charges concern ] a serious wilful offence .

( CARDINAL ) NORP In cases falling under paragraph CARDINAL [ detention pending trial ] may be dispensed with if there is no danger of the accused ’s absconding , obstructing the investigation , or committing further offences . ”

According to LAW a “ serious ” offence is one punishable by more than DATE imprisonment .

ORG practice at the relevant time ( which has since become obsolete as a result of the amendments in force since DATE ) was to construe LAW as requiring that a person charged with a serious wilful offence had to be remanded in custody . An exception was only possible , in accordance with LAW , where it was clear and beyond doubt that any danger of absconding or reoffending was objectively excluded , for example , if the accused was seriously ill , elderly , or already detained on other grounds , such as serving a sentence ( Decision no . CARDINAL of CARDINAL DATE , case no . CARDINAL/CARDINAL , ORG , DATE , p. CARDINAL ; Decision no . CARDINAL of CARDINAL DATE , case no . CARDINAL , ORG ; Decision no . CARDINAL of DATE , case no . CARDINAL , ORG ; Decision no . CARDINAL , case no . CARDINAL/CARDINAL , ORG , ORG , p. CARDINAL ) .

Article CARDINALa of the Code of Criminal Procedure , as in force at the relevant time , provided as follows :

“ ( CARDINAL ) The detained person shall be provided immediately with a possibility to file an appeal to a judge at the competent court against the [ order for his detention pending trial ] , not DATE after [ the detention order ] . The judge shall summon the parties and decide at a hearing in open court not DATE following the receipt of the appeal at the court .

( CARDINAL ) The appeal shall be lodged with the body that ordered the detention . On DATE it is lodged , the appeal , accompanied by the [ detention order ] and all materials in the case , shall be transmitted to the court .

( CARDINAL ) The court shall deliver a decision which is not subject to appeal . The court shall either quash the detention order and impose another measure of control [ of the accused ] or dismiss the appeal .

( CARDINAL ) In the event of a change of circumstances the detained person may lodge a fresh appeal to the court against the [ detention order ] . ”

According to ORG practice at the relevant time , it was not open to the courts , when examining appeals against detention pending trial , to assess whether there existed sufficient evidence to support the charges against the detainee . The courts must only examine the lawfulness of the detention order ( Decision no . CARDINAL of CARDINAL DATE , case no . CARDINAL/CARDINAL , ORG , ORG , p. CARDINAL ) .


The applicant , born in DATE , is a NORP citizen and living in GPE .

He is represented before the ORG by PERSON , a lawyer practising in GPE .

A.

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

Applicant ’s version of the facts

Until DATE the applicant lived in the Bölükören hamlet of the LOC village attached to the GPE district of the province of ORG . He had a farm of QUANTITY on which he grew wheat , barley , beans , tomatoes , potatoes , and chickpeas . He was breeding CARDINAL sheep and goats . He also had a CARDINAL storey farm house .

The applicant was intimidated by village guards from the PERSON and PERSON districts . The village guards accused him of assisting ORG terrorists and requested him and other villagers to evacuate the village . As he was threatened with death and intimidated by village guards and gendarmes the applicant left his village and went to GPE .

In DATE the applicant 's cousin , PERSON , who lived in a nearby village , received a phone call and was told that the applicant 's house had been burned down . The applicant immediately went to his village . He saw that his house had been burned down with all its contents .

On DATE the applicant and other residents of GPE and GPE hamlets presented petitions to several administrative bodies , namely the GPE ORG office , the ORG Governor ’s office , ORG office in GPE , the Minister of the ORG ’s office , the President of the GPE ’s office and ORG . He and the other villagers requested an investigation into the destruction of their property and evacuation of their village . They also requested compensation for the damage they had sustained .

On DATE the District Governor of PERSON sent a letter to the applicant . He stated :

“ An investigation was conducted by the [ Yayladere ] ORG concerning the allegations stated in your petition [ of DATE ] which was signed by you and your QUANTITY friends . It has been observed in this investigation that you had been misinformed about the reason for the destruction of your property and the burning of your houses by unknown persons . Some of the houses had collapsed because they were abandoned . It was also established that those who had broken into your houses were militants of the NORP terrorist organisation .

Therefore your request for compensation claimed in your petition can not be granted by the District Governor ’s office under current regulations ... ”

The Government ’s version of the facts

The authorities carried out an investigation into the applicant ’s allegations of destruction of his property and his forced eviction from his village .

On DATE statements were taken from the mayor of GPE attached to the PERSON district and an inhabitant of the applicant ’s village .

The mayor ( muhtar ) of the Yolgüden village , PERSON stated , inter alia :

“ ... I have been the muhtar of the Yolgüden village for DATE . I know very well the inhabitants of the nearby GPE and those of its hamlets , GPE and GPE . I also know the villagers who emmigrated . In DATE the inhabitants of the ORG and GPE hamlets and the LOC village emmigrated as a result of the pressure , oppression and violence of militants of the NORP terrorist organisation who had taken their foodstuff . At DATE there was no one [ living ] in the GPE and GPE hamlets of LOC . They all emmigrated to GPE taking their belongings . There were definitely no members of the security forces . No pressure was applied by gendarmes or other military units with a view to forcing people to LOC . ORG emmigrated in order to secure their lives and property . By way of example we can mention the village muhtars and other citizens who were killed ... We knew through the terrorists who used to come to our village that members of the separatist organisation had been lodging in the villages which had been evicted . We definitely did not hear , did not see and do n’t know that gendarmes had burned houses [ in our region ] .

In DATE PERSON son PERSON emmigrated to GPE taking his family and his belongings in order to find a job . His father and mother did not go . During DATE his house was in good condition . Whatever occurred must have occurred after the emmigration . Nobody saw or knows of this [ incident ] . The houses in the GPE and GPE hamlets were demolished as a result of the bad weather conditions . I do n’t know who burned the houses , but they were not burned by soldiers ... All these incidents occur because of the ORG militants in the region ... DATE these incidents took place on account of terrorism . Terrorist activities have now abated and we are living in peace and security ... ”

PERSON , from the applicant ’s village , stated , inter alia :

“ Until DATE I lived in the LOC village attached to the GPE district along with my [ family ] . Later I moved to GPE along with my family on account of the terrorist activities and the fact that ORG militants put pressure and oppressed the inhabitants of [ our ] village and abducted the young people to force them to join the organisation ... Village guards never came to our village . Gendarmes used to come with a view to collecting information and carrying out searches . In DATE PERSON son PERSON moved to GPE for financial reasons . He then came to take his family and belongings [ to GPE ] . I remember very well that PERSON house was in good condition in DATE . Until we and all the inhabitants of the villages and hamlets emmigrated from the region there has never been any house burning . Gendarmes or the ORG security forces never forced us and other inhabitants to evacuate the villages in the region . The villagers emmigrated since they were fed up with the terrorist incidents and they were victims . Everybody left taking their belongings ... ”

B. Relevant domestic law and practice

Administrative liability

Article CARDINAL of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”

Criminal responsibility

LAW makes it a criminal offence :

( a ) to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) ,

( b ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ,

( c ) to issue threats ( LAW ) ,

( d ) to make an unlawful search of an individual ’s home ( Articles CARDINAL and CARDINAL ) ,

( e ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ,

( f ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) , or

( g ) to damage another ’s property intentionally ( Articles ORG ) .

For all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , with ORG or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of LAW . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Provisions on compensation

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .


Violation of Art. 14+9;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE ) .

On DATE the applicant was baptised in accordance with the ceremonial rite of the Jehovah ’s Witnesses and became an active member . On DATE he assumed the function of a preacher ( “ special full - time servant ” or “ regular pioneer ” – Sondervollzeitdiener , allgemeiner PERSON ) .

On DATE ORG ( LOC - kommando ) found the applicant fit to perform military service . It subsequently called him up ( ORG ) to begin his military service on DATE . That order was later revoked .

The applicant , on DATE , filed a request with the Federal Minister for ORG ( ORG ) for recognition as a conscientious objector ( ORG ) .

Subsequently , on DATE , the Minister for ORG recognised the applicant as a conscientious objector . Accordingly , he was exempted from the duty to perform military service but liable to perform civilian service ( Zivildienst ) .

From DATE until DATE the applicant lived in a community of preachers ( “ GPE family ” – Bethelfamilie ) , which , in the applicant ’s view , is similar to a religious order ( PERSON ) and is called LAW ( ORG Sonder - vollzeitdiener der PERSON ) .

On DATE ORG ordered the applicant to commence his civilian service ( PERSON ) with ORG ( ORG ) on DATE .

On DATE the applicant became a deacon ( “ ministerial servant ” – Diakon , GPE ) within ORG .

On DATE the applicant lodged a complaint with ORG ) against the ORG ’s order of DATE , also requesting the suspension of its effect . The applicant submitted that he had been living in a community of preachers since DATE and devoted all his time to religious activities . On DATE he had become a deacon and aspired to assume the function of an elder within the Jehovah ’s Witnesses . Referring to NORP law ( section CARDINAL ) of ORG ) and the case - law and practice of ORG ( BVerwG , DATE , PERSON . CARDINAL C CARDINAL ) , he argued that persons in a similar situation ( preachers and deacons ) were exempt from compulsory military or civilian service . Further , the applicant complained that section CARDINAL ) of LAW exempted only members of recognised religious societies performing specific services relating to worship or religious instruction from the obligation to perform civilian service , whereas he held a comparable clerical position within the GPE ’s Witnesses . Furthermore , section CARDINAL(CARDINAL ) of the newly introduced LAW on ORG ( Bundesgesetz über die PERSON religiösen GPE , hereafter referred to as the “ CARDINAL Act ” ) , which had entered into force on DATE , established that recognition under LAW was only possible after DATE existence as a registered religious community . Therefore this new provision precluded any recognition during the following DATE and made LAW inapplicable until DATE . The applicant requested ORG to revoke the restriction limiting the application of section CARDINAL ) of LAW to “ recognised religious societies ” , and in the alternative to revoke the DATE requirement laid down in section CARDINAL(CARDINAL ) of LAW .

On DATE ORG refused to deal with the applicant ’s complaint for lack of prospects of success . It further dismissed the applicant ’s request for his complaint to have suspensive effect .

Subsequently , on DATE , the applicant agreed with ORG that he would begin his civilian service in an institution for disabled persons on DATE , and he consequently left the community of preachers .

On DATE the applicant requested ORG to transmit his complaint of DATE to ORG ( Verwaltungsgerichtshof ) .

On DATE ORG granted the applicant ’s request .

On DATE the applicant supplemented his complaint and requested ORG to institute proceedings to review the constitutionality ( PERSON ) of the wording “ recognised religious societies ” in section CARDINAL ) of LAW . In the alternative , he requested that the provision at issue be interpreted in conformity with the principle of equality . He thus argued that , in view of his position as a deacon in the GPE ’s Witnesses , he should be dispensed from the obligation to perform civilian service as his position involved supporting elders by guiding the communities , carrying out clerical work in cooperation with other fellow GPE ’s Witnesses , giving Bible readings , speeches and commentaries during worship and offering guidance for prayers ; accordingly , his functions were equivalent to those of members of registered religious societies who provided services relating to spiritual welfare or clerical teaching after graduating in theological studies , or to those of students of theology who were preparing to assume a clerical function .

By a decision of CARDINAL DATE ORG dismissed his complaint . It noted that LAW and in particular section ORG ) had not been applied and were not to be applied by ORG in the applicant ’s case . Rather , ORG had to apply section CARDINAL ) of LAW , requiring recognition of a religious society as a precondition for exemption from civilian service . The provision as such raised no concerns as regards constitutionality , since its objective was not to grant an exemption from the obligation to perform civilian service to every functionary of a religious community , whether or not it was recognised . It further held that the impugned provision , on account of its explicit wording , could not be interpreted in the manner suggested by the applicant . The decision was served on the applicant ’s counsel on DATE .

On DATE the applicant ended his civilian service and , on DATE , he rejoined ORG , where he stayed until DATE . Subsequently , he left the community of preachers , continued to work as a preacher and received further clerical training .

In DATE the applicant began to do missionary work as a preacher in GPE and GPE .

Section CARDINALa(CARDINAL ) of LAW ( PERSON ) provides as follows :

“ An exemption from the obligation to perform civilian service shall apply to the following members of recognised religious societies :

NORP ordained priests ,

NORP persons involved in spiritual welfare or in clerical teaching after graduating in theological studies ,

NORP members of a religious order who have made a solemn vow , and

NORP students of theology who are preparing to assume a clerical function . ”

For a detailed description of the legal situation in GPE in this field see GPE v. GPE ( no . CARDINAL ) .


IAN EDGAR (LIVERPOOL) LIMITED v. THE UNITED KINGDOM

The applicant is a business engaged in the wholesale distribution of firearms . It is represented before the ORG by PERSON , ORG , of GPE . The facts of the case , as submitted by the parties , may be summarised as follows .

A. The particular facts of the case

The applicant business is a wholesaler and distributor of firearms and associated products . It was founded in DATE . The CARDINAL sons of the founder are directors of the applicant company and between them hold PERCENT of the share capital . The applicant company operates from wholly - owned offices and a warehouse and owns a CARDINAL-acre site where secure licensed magazines for ammunition are located .

Controls on firearms in GPE , including controls on the possession of pistols , revolvers , rifles and the ammunition for them , were introduced for the first time in DATE . In DATE , fully - automatic weapons were prohibited , and in DATE , airguns and shotguns were made subject to restrictions for the first time . The controls were consolidated in the Firearms Act DATE . In DATE , semi - automatic and self - loading rifles were prohibited , and in DATE , disguised firearms were prohibited .

In DATE , an individual entered a primary school in GPE and shot dead a teacher and CARDINAL children , and wounded CARDINAL others . He had with him CARDINAL handguns and CARDINAL rounds of ammunition . The Government subsequently established a public inquiry chaired by the Hon . Lord PERSON , which presented a report to ORG in DATE ( “ the LOC ” ) .

Following the presentation of ORG , legislation was passed in DATE prohibiting the possession of handguns , and schemes were set up for the payment of compensation to private individuals and to dealers in firearms in respect of handguns the possession of which was prohibited .

DATE , when a prohibition on handguns was first contemplated , and DATE ( the date the application was made ) , sales of handguns by the applicant company decreased by PERCENT . DATE and DATE , its turnover dropped by PERCENT . Handguns and related products formerly amounted to PERCENT of the applicant company ’s sales .

The applicant company received £ MONEY in compensation under the schemes . By DATE , MONEY had been paid out to CARDINAL dealers under the schemes , of a total of MONEY which had been paid out to individuals , dealers and others . The ORG estimate the total costs which will be involved in paying compensation under the schemes to be MONEY .

B. Domestic law and practice

The Firearms Act DATE has been periodically amended since it was passed , and forms the basis of the current system of control of firearms in GPE . LAW of DATE prohibits the possession , purchase , acquisition , manufacture , sale or transfer of the firearms there specified . LAW DATE ( “ LAW ” ) added large - calibre handguns to the class of prohibited firearms in section CARDINAL of the DATE Act .

Section CARDINAL of the Act of DATE , as amended by LAW , provided :

“ ( CARDINAL ) A person commits an offence if , without the authority of ORG , he has in his possession , or purchases or acquires , or manufactures , sells or transfers -

( aba ) any firearm which has a barrel length of QUANTITY in length or is QUANTITY in length overall , other than an air weapon , a small - calibre pistol , a muzzle - loading gun or a firearm designed as signalling apparatus . ”

The Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW ” ; together with LAW , “ the CARDINAL Amendment Acts ” ) extended the scope of the prohibition in section CARDINAL to small - calibre pistols by declaring ( in section CARDINAL ) that the words “ a small - calibre pistol ” in section CARDINAL ) of LAW as amended by LAW should cease to have effect .

LAW provides as follows , so far as material :

“ CARDINAL Surrender of prohibited small firearms and munitions

( CARDINAL ) The Secretary of ORG may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of CARDINAL or CARDINAL above .

CARDINAL Payments in respect of prohibited small firearms and ammunition

( CARDINAL ) The Secretary of ORG shall , in accordance with a scheme made by him , make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section CARDINAL above .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -

( a ) which they had , and were entitled to have in their possession on or immediately before DATE by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers ; or

( b ) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers ,

and their possession of which will become , or has become , unlawful by virtue of section CARDINAL(CARDINAL ) or CARDINAL above .

CARDINAL Payments in respect of ancillary equipment

( CARDINAL ) The Secretary of ORG shall , in accordance with any scheme which may be made by him , make payments in respect of ancillary equipment of any description specified in the scheme .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) above , ‘ ancillary equipment’ means equipment , other than prohibited ammunition , which-

( a ) is designed or adapted for use in connection with firearms prohibited by virtue of section CARDINAL(CARDINAL ) above ; and

( b ) has no practicable use in connection with any firearm which is not a prohibited weapon .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-

( a ) which they had in their possession on DATE ; or

( b ) which they had in their possession after DATE , having purchased it by virtue of a contract entered into before that date .

CARDINAL Parliamentary control of compensation schemes

( CARDINAL ) Before making a compensation scheme the Secretary of ORG shall lay a draft of it before ORG .

( CARDINAL ) The Secretary of ORG shall not make the scheme unless the draft has been approved by resolution of each ORG .

( CARDINAL ) This section applies to any alteration to the scheme as it applies to a compensation scheme .

( CARDINAL ) In this section ‘ compensation scheme’ means a scheme under LAW ... above . ”

The Firearms ( Amendment ) Act CARDINAL Compensation Scheme ( “ the First Scheme ” ) was laid in draft before ORG and approved by resolution of both ORG . It was made on DATE . The First Scheme provided compensation for the large - calibre handguns themselves , for prohibited expanding ammunition and for certain ancillary equipment . There were CARDINAL options for claiming compensation : Option A , a flat rate payment for individual items ; Option B , a payment for an individual item at the price in the list of values annexed to the First Scheme ; and Option C , a payment based on the market value of an individual item at or immediately before DATE ( the date of the announcement by the Government of their response to , and legislative intention following , ORG ) .

Under Option A , a payment of £ MONEY could be claimed for each large - calibre handgun . Under Option B , a payment could be claimed which was based on average retail values on DATE , reduced by PERCENT to reflect normal depreciation in value . Under Option C , dealers were entitled to claim the “ full market value ” of the large - calibre handguns and ancillary equipment which they held in stock . The full market value was to be calculated on the basis of the cost to the dealer of the item plus PERCENT .

By section CARDINAL of LAW , the provisions of sections CARDINAL of LAW were applied to small - calibre pistols . LAW ) ( No . CARDINAL ) LAW Scheme ( “ the Second Scheme ” ) was made in DATE , after having been laid in draft before both ORG and approved by resolution of each ORG . The Second Scheme applied in relation to small - calibre pistols held on or immediately before DATE . The date for the calculation of full market value for the purposes of Option C remained DATE . The Second Scheme made provision for compensation in respect of small - calibre pistols , on materially the same terms as provided for in the First Scheme in respect of large - calibre handguns .


Remainder inadmissible;Violation of Art. 8;Violation of P1-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicant was born in DATE and lives in GPE .

On DATE ORG ( Bezirksgericht ) , in summary proceedings , ordered the applicant to pay CARDINAL NORP schillings ( ORG ) , MONEY ( ORG ) to PERSON for the cost of plumbing work carried out in her apartment ( PERSON ) .

On DATE ORG granted PERSON 's request for the enforcement of the payment of this order and the costs of the proceedings in the amount of approximately ORG CARDINAL,CARDINAL by judicial sale ( GPE ) of the applicant 's apartment situated at S .- street FAC , in the CARDINALth district of GPE . That address was used by the courts for serving this and subsequent decisions . A registered letter was sent to the applicant at the above address . As it could not be handed over to her personally , it was served on her on DATE by deposition ( PERSON ) in the post office .

On DATE ORG , referring to CARDINAL further enforceable payment orders of DATE and DATE respectively ( amounting to approximately ORG CARDINAL,CARDINAL ) and to the costs of the respective proceedings , granted another creditor , PERSON , leave to accede to the judicial sale .

The applicant was informed of the date of the judicial sale by registered letter , which was again sent to her address at S .- street CARDINAL , and was served by deposition in the post office on DATE .

On DATE the judicial sale took place . The applicant did not assist . ORG sold the applicant 's apartment ( Zuschlag ) for CARDINAL ORG ( approximately ORG CARDINAL,CARDINAL ) to PERSON , a limited liability company . The decision of sale was served on the applicant on DATE by deposition in the post office .

By a decision of DATE ORG allocated shares of the proceeds to the creditors ( GPE ) .

NORP In DATE the applicant was evicted from the apartment .

In DATE the applicant had a nervous breakdown and stayed in a psychiatric hospital DATE and DATE . It can not be established on the basis of the file where the applicant lived for the rest of DATE . It appears that in DATE she was housed in a community owned apartment , where she is still living .

In connection with the applicant 's stay in the psychiatric hospital , ORG instituted guardianship proceedings ( PERSON - walterschaftsverfahren ) and , on DATE , appointed a provisional guardian for the applicant . In these proceedings a medical expert submitted that the applicant had suffered from paranoid psychosis since DATE and had since then not been able to make rational decisions , in particular as far as housing matters were concerned . On CARDINAL DATE a permanent guardian was appointed for the applicant .

On DATE ORG served the decision of CARDINAL DATE concerning the judicial sale of the applicant 's apartment on the applicant 's guardian . On DATE the applicant , represented by her guardian , appealed against this decision . Referring to the guardianship proceedings , she submitted that the enforcement proceedings were null and void as she had not been capable of participating in the proceedings ( prozeßfähig ) either at the time of delivery of the respective payment orders or at the time of delivery of the decisions granting enforcement and summoning her to the judicial sale . She further requested that the enforcement proceedings be suspended .

On DATE ORG dismissed the applicant 's request for the enforcement proceedings to be suspended . On DATE it granted a part of the surplus of the judicial sale to another creditor , A. The applicant , referring again to her argument that the enforcement proceedings should be considered null and void , appealed against both decisions . She further submitted that she had paid all outstanding debts to PERSON in DATE .

On DATE ORG ( PERSON ) suspended the proceedings concerning the appeal against the judicial sale of the applicant 's apartment and ordered ORG to decide on the applicant 's capacity to participate in the proceedings since DATE , when the decision granting enforcement by judicial sale of her apartment had been served on her .

On the applicant 's requests , ORG , on DATE , found that the payment orders of CARDINAL DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) were not enforceable . Relying on section QUANTITY ( Exekutionsordnung ) , it found that the applicant had not been capable of participating in the proceedings at the time of the delivery of the decisions at issue . For the same reasons ORG , on DATE , referring to the expert opinion obtained in the guardianship proceedings and a further expert opinion , found that the payment order of CARDINAL DATE ( see paragraph CARDINAL above ) was not enforceable .

Referring to the first decision , the applicant , in DATE , requested ORG to discontinue the enforcement proceedings . On DATE ORG dismissed this request and noted that discontinuation was no longer possible as the decision allocating the proceeds of the sale to the creditors had become final and the creditors had been paid .

In the meantime , on DATE , ORG resumed the proceedings concerning the applicant 's appeal against the judicial sale . It dismissed the appeal , noting that under LAW and section CARDINAL § CARDINAL ( CARDINAL ) of LAW only persons who had been present at the judicial sale or had erroneously not been summoned had a right to appeal within DATE from DATE of the auction . In contrast to the views expressed by legal writers , it was ORG established caselaw that this time - limit was absolute and , therefore , also binding in a case like the present one where the debtor had not been capable of participating in the proceedings and had not been represented . Consequently , the sale of the applicant 's apartment had become final and it was no longer possible to claim the nullity of the proceedings . The court therefore revised its decision of DATE ( see paragraph CARDINAL above ) finding that the question of the applicant 's capacity to participate in the enforcement proceedings was not relevant .

NORP The applicant , represented by her guardian , requested ORG to allow an ordinary appeal with ORG ( Oberster Gerichtshof ) . She argued that section CARDINAL § CARDINAL of LAW setting an absolute time - limit for the filing of an appeal against a decision of sale in a judicial auction was unconstitutional and amounted to discrimination against disabled persons not capable of participating in legal proceedings . Such individuals could not be treated like persons with legal capacity , who were able to defend their interests in underlying civil proceedings and could later appeal against a decision granting enforcement . In the present case , the interests of the applicant in declaring the sale of her apartment null and void had to prevail over the interests of the purchaser and the creditors . On the one hand , the applicant had become homeless , having lost her apartment , which had been sold far below its market price in order to satisfy relatively minor claims . On the other hand , annulling the judicial sale of the apartment would not have caused serious or irreparable damage to the creditors or the purchaser .

By a decision of CARDINAL DATE ORG entered the purchaser of the applicant 's apartment , the limited company ORG , as owner in the land register .

On DATE ORG refused to grant an ordinary appeal . Qualifying the applicant 's submissions as an extraordinary appeal , it transferred them to ORG .

On DATE ORG ( Oberster Gerichtshof ) rejected the applicant 's extraordinary appeal . It noted that ORG decision was in line with its constant case - law . As to the question regarding the constitutionality of the absolute time - limit for the filing of appeals against a judicial sale , it referred to the necessary protection of the purchaser .

By decision of DATE ORG dismissed the applicant 's further appeals against a number of decisions of ORG , including the decision entering the purchaser of the apartment as owner in the land register ( see paragraph CARDINAL above ) , a decision granting another part of the surplus of the judicial sale to creditor GPE , and decisions fixing further costs of the enforcement proceedings . It noted that the applicant 's arguments were restricted to the allegation that the judicial sale had not become final and that , therefore , all subsequent decisions were null and void . However , according to ORG decision , the judicial sale had become final .

Under LAW ( Zivilprozeßordnung ) a decision in civil proceedings is null and void and may be annulled if a party who is required to be represented has not been represented in the proceedings and the legal representative does not approve the conduct of the proceedings ex post . The party concerned may request annulment under LAW . There is no specific time - limit for filing such a request .

Article CARDINAL of the Code of Civil Procedure provides that if there is any indication that a party is not capable of effectively participating in the proceedings , they have to be suspended and the case has to be transferred to the competent court to conduct guardianship proceedings .

Enforcement proceedings are instituted by a request by the creditor , who indicates the mode of enforcement ( section DATE ) . In enforcement proceedings a debtor can oppose enforcement , claiming deficiencies in the underlying claim ( PERSON , PERSON ; sections DATE and DATE ) or can request a stay of execution ( ORG , Impugnations - gesuch , section CARDINAL ) on account of deficiencies in the decision granting enforcement . Furthermore , the court may , of its own motion or at the request of a party concerned , declare that a judicial decision or payment order is not enforceable if enforcement would be erroneous or unlawful ( section CARDINAL § CARDINAL ) . Upon such a decision enforcement proceedings are in principle discontinued ( section CARDINAL § CARDINAL ) or suspended ( section CARDINAL § CARDINAL ) .

Enforcement by way of judicial sale ( GPE ) of a debtor 's real estate is granted by a decision ( Exekutionsbewilligung ) . Subsequently , the court orders the valuation of the property by an expert ( section CARDINAL ) . Both parties to the proceedings , debtor and creditor , are summoned to the respective inspection of the real estate . At the time of the events , the value of the real estate was determined by a decision of the enforcement court which was subject to appeal ( section CARDINAL ) .

The date of the judicial sale is communicated by official notification ( PERSON ) which is served on the debtor and creditor ( section CARDINAL ) . The decision to sell ( Zuschlag ) real estate in a judicial sale constitutes an act of public law by which the purchaser obtains the property . Under sections CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL such a decision can be appealed against within DATE from the date of the judicial sale , inter alia , by a person who has erroneously not been summoned to the judicial sale .

According to ORG constant case - law , after expiry of this time - limit the decision of judicial sale becomes final . It is then no longer possible to take the eventual nullity of underlying decisions into account , even if the debtor had not been capable of participating in the proceedings due to a lack of legal capacity at the time when enforcement had been granted . ORG holds that only this approach is compatible with the aims of the proceedings leading to a judicial sale and the protection of the bona fide purchaser . A debtor can remedy unlawful acts of the party having instituted enforcement proceedings by claiming compensation ( Schadenersatz ) and unlawful acts of the courts by instituting official liability proceedings ( PERSON ) ( see for example CARDINAL ORG CARDINAL/CARDINAL , and also CARDINAL ORG CARDINAL/CARDINAL , CARDINAL ORG CARDINAL/CARDINAL , CARDINAL ORG CARDINAL/CARDINALp ) .

After the judicial sale becomes final , the enforcement court allocates the proceeds of the sale to the creditors and any eventual surplus subsequently to the debtor . Once the purchaser has fulfilled all the conditions , the court transfers the real estate and enters him as the owner in the land register .


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

Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza

The applicants are gypsies by birth . All their lives , they have moved between official sites and unofficial stopping places , mostly in the GPE area .

The applicants regard themselves as being GPE folk . The first applicant is a carpet seller and does most of his business in GPE . Both their children were born in GPE , and at present their daughter lives with them and works nearby . Their son travels independently , but stays with them frequently .

NORP Over DATE , the applicants had to move between a number of sites in GPE , often staying in unofficial stopping places . As they wanted to set up a family site , in DATE they bought a piece of land , known as ORG , PERSON , PERSON in GPE . The site is QUANTITY in area , and is positioned in the countryside between the MCARDINAL motorway and the GPE - Carlisle railway line . When the applicants bought it , they stated that it was generally regarded as being an eyesore . They referred to letters from local residents describing the site as having been used for car breaking and tipping rubbish , being littered and infested with rats . They spent DATE cleaning it up and developing it . The Government disputed this assertion , stating that local authority records indicate that it was after the applicants had occupied it that complaints were received about its condition . They stated that the land was previously used for grazing and growing crops .

In DATE , the applicants moved onto the site and on DATE they applied for planning permission to ORG ( “ the Council ” ) for a small close - knit gypsy family site for CARDINAL caravans .

On DATE , they were prosecuted in ORG for being on the land unlawfully . They were convicted and fined MONEY ( GBP ) .

On DATE , the applicants ' planning application was refused , by letter , on the grounds of adverse effect on highway safety and impact on visual amenity . On DATE , the applicants submitted an appeal to the Secretary of ORG .

On DATE , they were served with an enforcement notice requiring them essentially to move the caravans off the land and to reinstate the land to its former condition . They were given DATE to comply with the latter condition .

On DATE , the applicants submitted a further appeal against the enforcement notice .

On DATE , a public local inquiry was held to consider both appeals . These appeals were heard by an ORG appointed by the Secretary of ORG for the Environment .

On DATE , these appeals were dismissed . In his report , the ORG stated inter alia :

“ CARDINAL . Planning policies for the area are contained in the DATE Lancashire Structure Plan . Policy CARDINAL seeks to limit development of land in the open countryside outside LOC to that needed for the purposes of agriculture and forestry , or other uses appropriate to a rural area . ... Policy CARDINAL refers to Areas of Special Landscape , the appeal site is within such an area . The object is to safeguard such areas from development that is not in keeping with the special character of the landscape and is a of a standard of design appropriate to the area . The site is in an area of open countryside , it is undulating pasture land with a few buildings in the locality and can be seen from a number of public viewpoints , including the canal towpath close at hand , and further afield , from points along LOC . In my opinion , the appearance of CARDINAL caravans on the site would cause serious harm to the character of the landscape and be in conflict with Policy CARDINAL , even allowing for the proximity of the site to LOC . ...

By all accounts the land was overgrown until DATE or thereabouts ; it is not overgrown now but I consider that the harm caused to the character of the area by using the site for stationing CARDINAL caravans for residential purposes materially outweighs any benefits that may have accrued from < the applicant 's > cleaning up operation . Hedging can reduce the visual impact of a development , < the first applicant > proposed to plant hedging along CARDINAL of the boundaries and he has already done some of this . The types of hedging which are characteristic of the area would not provide much in the way of screening for DATE , < the applicant 's > approach is to plant quick growing conifers but I share the ORG 's view that these are not in keeping with the character of the area .

With regard to highway safety , you suggest that a common sense view be taken . PERSON is an unclassified road QUANTITY long , it is narrow for much of its length and contains a number of bends . In many places , CARDINAL cars could not pass . The hedges along the lane obstruct the visibility at bends , alterations in the hedge line along the site would be a help but in my view such alterations would not go far towards improving the overall situation . The land leads to the FAC at one end where visibility is significantly below the standards recommended in Planning Policy Guidance Note CARDINAL . At the other end , access to and from the ACARDINAL can be obtained via GPE , where visibility at the junction is adequate , and directly along ORG lane ; the visibility of the junction of this land with the main road is significantly below the recommended standards . < The first applicant > says he uses only the GPE junction , but I consider that others may well use the other junctions either because of convenience or because they do not appreciate the different standards of visibility at the CARDINAL junctions . ...

Cinderbarrow lane and its junctions with the main roads clearly have hazards for traffic . < The first applicant 's > use of the appeal site adds to those hazards , in my opinion , because of the increase in the number of traffic movements likely to result from the use and the increased likelihood of vehicles having to be reversed when meeting vehicles coming the other way . I accept that caravans are not likely to be towed onto and off the site on many occasions DATE , and if that were the only consideration I would not have regarded the implications for highway safety to be so unacceptable as to warrant a refusal of permission . It is , however , CARDINAL of a number of drawbacks and I consider that , overall , the highway objection is sustained .

The effect of Section CARDINAL(A ) of LAW is that the determination of these appeals shall be made in accordance with the development plan , unless material considerations indicate otherwise . The development plan in this case is ORG and on the basis of the evidence I consider that < the first applicant 's > development does not accord with it . Highway safety is a material consideration but it is one , which in my view , weighs against his case . A further material consideration , an important one , namely a special need for accommodation to be provided for gypsies , remains to be considered .

< The first applicant 's > gypsy status is not a matter of dispute , nor is the fact that , since DATE , the ORG 's district is designated under the provisions of LAW DATE , ... , as an area where adequate provision has been made for gypsies residing in , or resorting to the area . Circular CARDINAL emphasises , at paragraph CARDINAL , that the additional power accruing from a designation order should be seen by ORG as a means of ensuring that gypsies use the accommodation available to them rather that as a means of avoiding the need to provide further sites . Authorities may also have to be prepared to increase the provision they have made if there is a subsequent expansion of the gypsy population in their area . The ORG say that provision has been made over and above that which led to the area being designated . CARDINAL additional residential pitches and CARDINAL pitches for touring caravans have been provided on CARDINAL private sites ... The ORG 's own site at FAC has CARDINAL double pitches and can , therefore , accommodate CARDINAL caravans .

The larger picture for the LOC is that , under LAW of the Structure Plan and in the context of residential development , the aim is to provide land for caravan sites for gypsies within , or close to , the main urban areas . There are CARDINAL permanent gypsy sites in GPE , including the one at FAC . ORG are actively pursuing the provision of CARDINAL further sites , none of which are in GPE .

The DATE count of gypsy caravans since DATE discloses that there have been spaces available on authorised sites on every count , except the last one in DATE . In DATE , during the period when < the first applicant > was evidently clearing up the appeal site prior to moving onto it in DATE , the ORG say there were CARDINAL vacancies on authorised sites . The ORG also say that on DATE before the inquiry there were CARDINAL vacancies .

In my view the special need for accommodation to be provided for gypsies is not so weighty in the present case as to outweigh the harm caused to the character of the area and the adverse effects on highway safety .

< The applicants > put forward a number of reasons why they did not wish to go onto authorised sites in the area . Some of the reasons related to incidents in DATE which led them to embrace the concept of self - help and moving onto the appeal site , which they bought in DATE . I have accorded some weight to these matters but I remain of the opinion that the ORG 's case is the one that should prevail . ... ”

The time period for compliance was extended to DATE . The ORG also revoked the condition of returning the land to its former condition finding it excessive due to the tidying work carried out by the applicants .

The applicants did not appeal against this decision to ORG , as such appeals can only be made on limited grounds ( see paragraph CARDINAL ) .

The applicants tried unsuccessfully to find an alternative site both in the ORG area and in the nearby ORG area . They were offered places on an authorised site , GPE , which they turned down for strong personal reasons , namely , since this particular site was occupied by a large , violent gypsy family who had attacked them on CARDINAL occasion . In DATE , the first applicant received serious injury , being beaten with a baseball bat and being showered with glass as his car was smashed . His assailant was convicted of actual bodily harm . The applicants were advised by the police to stay away from the area .

On DATE , the applicants were prosecuted in ORG and given a conditional discharge for DATE , which would expire on CARDINAL DATE .

On DATE , they applied for planning permission for a smaller gypsy site which would consist of CARDINAL mobile home and a transit pitch .

On DATE , their application was refused and they appealed against this decision .

On DATE , a public local inquiry was held . On DATE , the appeal was dismissed again , on grounds of visual amenity and adverse effect on highway safety . Even though the applicants had offered to provide whatever form of screening was necessary , the Inspector considered that an effective screen would take too long to establish and would look alien . The use of the site for the stationing of a caravan and the addition of a second would “ seriously harm the character and appearance of the surrounding area ” . He gave weight to the highway authority evidence that the exit from FAC to the ACARDINAL suffered from lack of visibility . While he noted that the applicants'submission that they could use the alternative exit in GPE , he considered that the greater convenience of the shorter route would be likely to encourage its regular use . Given the lightly trafficked nature of the road , he did not find this to be a crucial matter however . As regarded the needs of the applicants , he stated :

“ CARDINAL . NORP Since DATE LOC has been designated under the provisions of LAW DATE , as amended , as an area where adequate provision has been made for gypsies residing in or resorting to the area . The current level of authorised provision within the district is CARDINAL caravan pitches of which CARDINAL pitches are on a council - owned site . Surveys taken during DATE show that an average of CARDINAL vacancies existed DATE on private sites in the district , and an average of CARDINAL vacancies on the council owned site .

Circular CARDINAL/CARDINAL states that it may be necessary to accept the establishment of gypsy sites within areas of open land where the land use policies which apply are severely restrictive to development , but in such cases there will be a special obligation to ensure that the arguments in favour of a departure from the development plan are convincing . < The applicants > put forward reasons why they did not wish to go to authorised sites in the area . Although these reasons were understandable , these are essentially personal reasons which do not , in my opinion , outweigh the harm caused to the character of the area and the adverse effects on highway safety . In my judgment the provision made within the district and the site availability revealed by survey is sufficient for me to conclude that the special need for accommodation to be provided for gypsies is not so weighty in this case as to justify a departure from established planning policy . ”

NORP In DATE , further prosecution was adjourned to DATE . On DATE , the applicants were convicted of failing to comply with the enforcement notice and were fined GBP CARDINAL plus costs .

In DATE , the applicants appeared once more in the magistrates ' court charged with failing to comply with the enforcement notice . The proceedings were adjourned until DATE , when the applicants elected to be tried in ORG by judge and jury . At a hearing on DATE , the applicants were directed by the judge that they had no alternative but to plead guilty as they did not have a defence to the charges . He deferred sentence and granted leave to appeal to ORG . On DATE , ORG dismissed the appeal , inter alia , endorsing the judge 's finding that :

“ Subsection CARDINAL < of ORG is not concerned with a balance of social factors . It is not concerned with the policy issues as arise in relation to the circumstances in which gypsies live . ”

The case was remitted to the ORG judge , who took the view that there was “ powerful mitigation ” and sentenced the applicants to a fine of ORG and GBP CARDINAL costs . He observed that it would have been inappropriate to commence a third prosecution and that it would have been more appropriate to commence civil injunctive proceedings in ORG .

On DATE , the ORG decided to take injunctive action against the applicants . At the hearing on DATE , ORG had before it an affidavit from the first applicant and CARDINAL affidavits from the ORG . In the affidavit of PERSON for the ORG , it was accepted that the applicants had not been able to secure accommodation within the area for their caravan elsewhere but it was suggested that insufficient efforts had been made . In his affidavit , to which were annexed refusals from CARDINAL sites , the first applicant stated that :

“ Since DATE my wife and I have been making extensive enquiries about alternative situations ... It is wrong for the ORG to suggest that we have only tried holiday sites thereby implying that we knew they would fail ; to the best of my knowledge and belief all the sites we tried had some residential accommodation . We repeated these efforts prior to the most recent proceedings . ”

Due to the pressure of the proceedings , the first applicant made an undertaking to the ORG to remove his caravans from his land and to break up the hard surface laid out on the land by DATE . On DATE , the applicants applied for a variation of the undertaking , seeking an extension of the time for compliance as they had been unable to find anywhere else to site their caravan and due to the first applicant 's ill health . The second applicant submitted in an affidavit to ORG that they had made continuous and strenuous enquiries since DATE , but had been met with refusals – letters from CARDINAL sites were enclosed . The application was refused and the applicants ordered to pay the ORG 's costs .

On DATE , the ORG served on the first applicant a “ Notice to Show Good Reason why an Order for Your Committal to Prison should not be made ” which applied for the first applicant to be committed to prison . At the hearing on DATE , the judge committed the first applicant to prison for DATE but suspended the imprisonment on condition that the applicant complied with his undertaking by QUANTITY DATE . Counsel 's notes of the judge 's judgment indicated that the order was made to enforce the law as fining had achieved nothing – “ If it means that the applicants have to seek something other than static caravan accommodation , so be it ” . In order to avoid committal and the ensuing deleterious consequences on the first applicant 's health and the applicants ' family , the applicants vacated their land and are currently without a fixed address . They have been unable to find alternative accommodation elsewhere .

As regards the availability of pitches elsewhere , the ORG submitted that during the period of DATE CARDINAL CARDINAL vacancies arose on GPE , the official site in the district . There was a waiting list but the applicants would only have had to wait DATE for a vacancy to occur . The conditions on this site were closely monitored by DATE inspections by a resident warden . In the local authority 's area , there were also , according to the figures given to the Commission by the Government , space for CARDINAL caravans on CARDINAL authorised private sites , where there were currently CARDINAL vacant pitches and a further CARDINAL private authorised / touring and residential sites , comprising , respectively , CARDINAL and CARDINAL pitches , with substantial numbers of vacancies . Some of these sites were used by travellers particularly in DATE . The applicants stated that these sites are largely seasonal for tourists and that gypsies were not welcome . CARDINAL of them has been designated as official gypsy site but is still inhabited mostly by non - gypsies . This site had QUANTITY .

According to the DATE statistics of ORG however , the number of authorised private sites had increased by CARDINAL ( from DATE to CARDINAL ) , while the number of public sites had decreased by the same number ( from CARDINAL to DATE ) . However , the total number of unauthorised encampments in the area had almost doubled from CARDINAL to CARDINAL .

PERSON . RELEVANT DOMESTIC LAW AND PRACTICE

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 ORG 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 gypsies 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 , section CARDINAL of the DATE Act gave to local authorities within designated areas power to apply to a magistrates ' court for an order authorising them to remove caravans parked in contravention of section CARDINAL .

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 ORG LAW DATE ( “ the DATE LAW ) , which came into force on DATE , repealed sections CARDINAL of LAW and the grant scheme referred to above .

Section CARDINAL of the DATE Act gives to a local authority power to direct an unauthorised camper to move . An unauthorised camper is defined as

“ a person for the time being residing in a vehicle on any land forming part of the highway , any other unoccupied land or any occupied land without the owner 's consent ” .

Failure to comply with such a direction as soon as practicable , or re - entry upon the land within DATE , is a criminal offence . Local authorities are able to apply to a magistrates ' court for an order authorising them to remove caravans parked in contravention of such a direction ( section CARDINAL of the DATE Act ) .

In the case of NORP v. ORG , ex parte Atkinson ( DATE ) , PERSON referred to 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 LAW , was issued to local authorities by the Government 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 gypsies ' presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites , for example by providing basic services for gypsies e.g. toilets , a skip for refuse and a supply of drinking water .

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

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

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

In a letter dated CARDINAL DATE , ORG drew to the attention of all local planning authorities in GPE that Circular CARDINAL/CARDINAL required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications . The Government was concerned that this guidance had not been taken up . ORG research ( see below ) had 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 .

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

NORP The report stated that the figures for success rates in the CARDINAL planning appeals looked at showed that 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 survey on gypsy 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 CARDINAL 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 CARDINAL member states and ratified by CARDINAL .

DATE . 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 ' travelling ' 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 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 concerned 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 ORG deals with the living conditions of GPE , noting that while nomadism had been central to NORP history and culture a majority of GPE are 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 ORG participating GPE have at times breached this principle , either by making a determination of a group 's fundamental lifestyle that is inconsistent with its members ' choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity . ” ( pp . CARDINAL )

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 )

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

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

“ ... This scheme allows wide ply for the exercise of discretion DATE and that discretion has repeatedly been exercised to the detriment of NORP . A DATE report by ORG described the prospects of applying for planning permission for a Gypsy site as ' a daunting one laced with many opportunities for failure ' . In DATE , DATE in which the success of application rates was evaluated , it was ascertained that MONEY of applications for planning permission by NORP were denied . In contrast , MONEY of all planning applications were granted during DATE . It is to be noted that , as a category , Gypsy planning applications are relatively unique 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 )