Violation of Art. 6-1;No violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved

ORG At the time of his application to the Commission , the applicant , an NORP national born in DATE , lived in GPE . He was married in DATE but was divorced from his wife on DATE . During their marriage they had CARDINAL children , A , B , C , D , E , F and G , born in DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively .

ORG In DATE , because of accommodation problems , the couple on CARDINAL occasions put their then children into the voluntary care ( see paragraphs DATE below ) of the local authority ( " the ORG " ) . On DATE , the local juvenile court made care orders ( see paragraphs CARDINAL and CARDINAL below ) in respect of A , B , C and NORP As the applicant had obtained more satisfactory accommodation , these orders were discharged at his request by the juvenile court in DATE and replaced by supervision orders ( see paragraphs CARDINAL and CARDINAL below ) .

ORG Following concern as to the children ’s welfare , brought to a head when the applicant assaulted A , the ORG obtained from the juvenile court on DATE care orders in respect of A , B , C , D and E ; the latter are hereinafter referred to as " the children " , F and G not being the subject of the present proceedings . On DATE , ORG dismissed the applicant ’s appeal against this decision ; he did not lodge a further appeal ( see paragraph CARDINAL below ) .

ORG The children lived at first in a children ’s home . In DATE , A and B were placed with foster parents near the town where the applicant lived , and C with other foster parents in the same town . In DATE , D and E , who had remained in the meantime at the children ’s home , were placed with foster parents at an address which was not given to the applicant by the ORG . It so decided following a case review held on DATE and attended by social workers responsible for the children ; the applicant was not informed of the review and was not invited to attend it .

ORG Until DATE or DATE , the applicant and his wife continued to visit the children - or those whose whereabouts they knew - at least once DATE , although the foster parents complained that the visits upset the children . The social worker responsible then proposed that future visits take place at the social services building in the town where the applicant lived . The parents saw there all CARDINAL children , for TIME , on DATE and A , B and C , for TIME , on DATE .

ORG An application by the parents , who had taken legal advice with a view to establishing their right to access to the children , to revoke the care orders was rejected on DATE by the juvenile court ; the proceedings could not lead to a review of the isolated question of access , since the juvenile court , pursuant to the statutory provisions , had to determine whether or not it was appropriate to discharge the care orders as a whole ( see paragraphs CARDINAL and DATE below ) . No appeal was lodged against this decision ( see paragraph CARDINAL below ) .

ORG On DATE , the applicant ’s solicitors wrote to the ORG ’s ORG seeking regular access for the parents to the children . In an interim reply of DATE , ORG indicated that it would be holding a case conference in the near future , but that its policy concerning the children was unlikely to change significantly . A fuller reply , dated DATE , was in the following terms :

" Further to my letter of DATE , a case conference has now been held to determine our future policy in respect of the CARDINAL ... children in the care of this ORG .

As you will no doubt appreciate , our paramount consideration must be the best interests of the children . In coming to a decision the case conference was very aware of LAW of LAW DATE which [ provides ] : ‘ In reaching any decision relating to a child in their care , a ORG should give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood , and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them , having regard to his age and understanding.’ As a result of the unsuccessful application by the [ applicant and his wife ] to have ORG on their children in the care of the [ ORG ] discharged , the real desire of all these children to remain with their foster parents was emphasised . The case conference therefore decided that the best interests of the children would be served by them remaining on a long term basis with their present foster parents .

The visits which the [ applicant and his wife ] have made to their children in the past have proved quite unsettling for the children and their foster parents . In view of the fact that we see these children remaining in long term care emphasis should be placed on helping the children feel secure and happy in their foster homes . I therefore have to inform you that in the interests of the children there should be no contact with their natural parents .

I do appreciate that this decision will be a matter of deep disappointment to the [ applicant and his wife ] . My social worker ... will be in touch with them in the near future and will be pleased to discuss with [ them ] in more detail the reasons behind this decision . "

The applicant asserts that he was not invited to attend the case conference referred to in this letter or consulted beforehand about the decision to terminate access .

ORG On DATE , the parents , in an attempt to raise the question of their access to the children , issued an originating summons as a result of which the latter became wards of court ( see paragraphs DATE and CARDINAL below ) . On DATE , the ORG applied to ORG for the wardship to be lifted ( see paragraph CARDINAL below ) ; the parents contended in reply that while the ORG should continue to have care of the children , they should have access to them .

ORG At a hearing held on DATE , ORG examined the questions whether it had jurisdiction to consider the GPE application for access in the context of wardship proceedings and whether the wardship should continue . The judge stated :

" ... this ORG does not sit as a ORG in relation to decisions of ORG , and can only interfere with a decision of ORG on the basis of the principles governing the interference with statutory discretions given to statutory bodies ; that is , this ORG can only interfere if it is satisfied that ORG has taken into account matters which it should not have taken into account , or has not taken into account matters which it should have taken into account , or it can interfere if it comes to the conclusion that ORG has come to a decision which no reasonable ORG could have come to . It can also interfere , of course , if it were satisfied that ORG had been acting in bad faith . "

Given this limited jurisdiction , he held that the ORG ’s decision to refuse further access was not impeachable on any of the above grounds and therefore must stand . He accordingly terminated the wardship order .

The applicant was advised that although an appeal from this decision would have been possible , it would have had no prospects of success in the light of the relevant case - law ( see paragraphs CARDINAL below ) .

ORG On DATE , an adoption order was made in respect of D and E , the judge having dispensed with the consent of the applicant and his wife ( see paragraph CARDINAL below ) . The DATE care orders in respect of these CARDINAL children thereupon terminated .

The applicant left GPE in DATE . It appears that he was not then regularly visiting A and ORG embargo on access never having been lifted ) and that they did not wish him to do so . It also appears that he was not then regularly visiting B , although he had re - established contact with him at the latter ’s request . B and C are still subject to the DATE care orders ; that in respect of A terminated in DATE , on her attaining DATE .

ORG In the law of GPE and GPE , there are a number of different and partially co - ordinated procedures for dealing with the welfare of children . Whilst the oldest of these is the wardship jurisdiction of ORG , it has for DATE co - existed with , but not been ousted by , various statutory provisions whereby a child who is at risk may be put into the care of a local authority .

Although the terms are not wholly accurate , the legislation is commonly divided into CARDINAL categories : the first provides for " compulsory care " , by establishing machinery whereby a local authority can obtain a court order committing a child to its care ; the second concerns " voluntary care " , the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts . At any given time , there are CARDINAL children in public care in GPE and GPE , of whom CARDINAL are not living with their parents or a relative .

The statutory provisions have been amended on several occasions and many of them were repealed and replaced by LAW ( " LAW " ) , a consolidating measure the greater part of which came into force on DATE . In the following summary of the law in force at the time of the present case , the original enactments are cited first and any corresponding provision of the DATE Act in force at the relevant time is indicated in square brackets .

By way of general background information , the summary covers all CARDINAL of the procedures referred to above ( namely those relating to compulsory care , voluntary care and wardship ) , but in the present case it was the machinery for compulsory care and the wardship jurisdiction of ORG which were directly relevant .

ORG The principal statute concerning compulsory care is ORG " LAW " ) , as amended by LAW DATE and then partly replaced by LAW ; it enables a local authority to obtain , as a temporary measure , a " place of safety order " and , as longer - term measures , a variety of other orders .

ORG Under section CARDINAL ) of the CARDINAL Act , any person , including a local authority , may apply to a justice of the peace for authority to detain a child and take him to a place of safety ; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe , inter alia , that the child ’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill - treated , or that he is exposed to moral danger .

A " place of safety order " so granted lasts for a maximum of DATE and can not be extended . The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it .

If the local authority wishes to retain the child in protective surroundings after the DATE period , it has either to make the child a ward of court ( see paragraphs DATE below ) , or to institute care proceedings under LAW ( see paragraphs CARDINAL below ) , or to apply to a justice or a GPE court for an interim order under section PERSON ) ( see paragraph CARDINAL below ) ; if an application of the last kind is refused , the child ’s immediate release " may be ordered " .

ORG Under sections CARDINAL and CARDINAL ) of the DATE Act , a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is , subject to certain exceptions , under a duty to institute care proceedings by bringing the child before a juvenile court .

ORG In care proceedings instituted by a local authority , the parties are the local authority and the child , but not the latter ’s parents . The child is entitled , subject to his means , to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer . If the child is of sufficient competence , he may decide that he wishes to be separately represented .

A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority . As a matter of practice , the court will also allow such parent to cross - examine witnesses on behalf of the local authority and to have separate legal representation .

ORG If the court before which the child is brought is satisfied that one of the grounds specified in LAW exists and that the child is in need of care or control which he is unlikely to receive unless an order is made , it may make , inter alia , a supervision order , a care order or an interim order . The specified grounds include those on which a place of safety order may be made ( see paragraph CARDINAL above ) .

ORG A supervision order is an order placing the child under the structured supervision of the local authority ; subject thereto , he may continue to live with his parents .

ORG A care order is an order committing the child to the care of the local authority . The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order ( section CARDINAL of the DATE Act [ ORG ) of the DATE Act ] ) , except that it can not cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it can not agree to the child ’s adoption .

ORG An interim order is a care order limited to a specified period not exceeding DATE ; it may be renewed on application ( section QUANTITY of the DATE Act ) . It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made ( section CARDINAL(CARDINAL ) ) or , alternatively , during the currency of a place of safety order ( see paragraph CARDINAL above ) . The powers and duties of the local authority under an interim order are the same as under a full care order ( see paragraph CARDINAL above ) .

ORG A full care order normally terminates when the child in question attains the age of DATE ( section CARDINAL(CARDINAL)(b ) of the DATE Act ) .

In addition , under sections CARDINAL ) and CARDINAL ) , the juvenile court may , on application by the child or his parent on the child ’s ( but not his own ) behalf and if it considers it appropriate , discharge the care order and may , on discharging it , make a supervision order in respect of the child . Such applications may be made DATE or , with the juvenile court ’s permission , more frequently ( section ORG ) ) . The paramount consideration in deciding whether to discharge the order is the interests of the child .

ORG Under sections CARDINAL(CARDINAL ) and ORG of the DATE Act , the child in respect of whom the care order was made , or his parent on the child ’s ( but not his own ) behalf , may appeal to ORG against the making of a care order , against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge . ORG will review the decision by way of re - hearing the case . From ORG a further appeal may , with leave , be made to ORG by way of case stated ; thereafter an appeal lies to ORG and , in rare cases , to ORG .

The local authority has no general right to appeal against a juvenile court ’s refusal to make a care order , except on a point of law to ORG .

ORG The principal statute concerning voluntary care is LAW DATE ( " LAW " ) , as amended by LAW DATE and then replaced by LAW . This legislation in effect enables a parent to place his child into the care of a local authority ; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently .

ORG LAW the DATE LAW ] imposes on the local authority a duty to receive into its care a child under DATE where it appears , inter alia , that his parents or guardian are for the time being or permanently prevented by illness , incapacity or other circumstances from providing for his proper accommodation , maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child ’s welfare . Whilst the authority must , save as otherwise provided in the LAW , keep the child in its care so long as his welfare requires it and he has not attained the age of DATE , it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child ’s welfare .

ORG LAW the DATE LAW ] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care . However , if the child has been in care throughout DATE , no person may take him away unless he has given CARDINAL days’ notice of his intention to do so or has the authority ’s consent ( section CARDINAL(CARDINALA ) [ CARDINAL ) ] ) .

Moreover , if a parent requests the return of the child , the authority is not compelled to comply regardless of his welfare ( ORG v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . If it then considers the transfer of care to the parent to be inconsistent with that welfare , it may either pass a parental rights resolution ( see paragraph CARDINAL below ) or apply to make the child a ward of court ( see paragraphs QUANTITY below ) .

ORG If it appears to a local authority in relation to any child who is in its care under LAW [ CARDINAL of the DATE Act ] that , inter alia , a parent of his is unfit to have the care of the child on account , notably , of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent , the local authority may resolve that there vest in it the parental rights and duties with respect to that child ( section CARDINAL(CARDINAL ) [ CARDINAL ) ] ) . The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property , including " a right of access " but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders ( section CARDINAL(CARDINAL ) of the DATE Act [ CARDINAL(CARDINAL ) of LAW ] and section CARDINAL(CARDINAL ) of LAW DATE ) .

Before passing a parental rights resolution , the local authority must consider a report from its ORG on the desirability of assuming parental rights , which report should contain all the material necessary for the proper exercise of the authority ’s discretion . In deciding the matter , the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account .

ORG If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known , he must be served with notice of it , indicating his right to object by counter - notice within DATE ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ] ) . If such objection is made , the resolution lapses on the expiry of DATE from service of the counter - notice ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) . However , within that period , the local authority may " complain " to a juvenile court , in which event the resolution will not lapse until the complaint is determined ; on hearing the complaint , the court may order that the resolution is not to lapse , provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child ’s interest ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) ] ) .

ORG A parental rights resolution continues in force until the child attains the age of DATE , unless it is previously rescinded by the local authority or terminated by a juvenile court ( section CARDINAL of LAW [ CARDINAL of the DATE Act ] ) .

The parent concerned , even if he did not originally object to the parental rights resolution , may apply to a juvenile court for its discharge . The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child ’s interests ( section CARDINAL(CARDINAL)(b ) [ CARDINAL(CARDINAL)(b ) ] ) . An application based on the original foundation for the resolution can , however , be entertained only if lodged within DATE of its adoption ( section CARDINAL of the Magistrates’ Court Act DATE ) .

ORG Under section CARDINAL of the CARDINAL Act [ CARDINAL of the DATE Act ] , an appeal ( by the parent or the local authority ) lies to ORG of ORG from the making by a juvenile court of an order confirming ( under section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) or discharging ( under section CARDINAL(CARDINAL)(b ) [ CARDINAL ) ] ) a parental rights resolution , or from a juvenile court ’s refusal to make such an order . A further appeal lies to ORG and , with leave , to ORG .

ORG of ORG has an inherent jurisdiction , independent of statutory provisions and deriving from the prerogative power of the ORG acting in its capacity as parens patriae , to make a child a ward of court .

ORG The effect of wardship is that custody , in a broad sense , of the child is vested in the court itself ; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever , notably as regards the care and control of and access to the child and his education , religion or property . In making such orders , the court is required to treat the child ’s welfare as the " first and paramount consideration " ( Guardianship of Minors Act DATE , section CARDINAL ) . Unless terminated earlier by order of the court , the wardship continues until the child attains his majority .

Where there are exceptional circumstances making it impracticable or undesirable for the ward to be , or continue to be , under the care of his parents , the court may make an order committing him to the care of the local authority ( LAW DATE , section CARDINAL(CARDINAL ) ) , subject to the power of the court to give directions ( Matrimonial Causes Act DATE , section CARDINAL(CARDINAL)(a ) ) . In such circumstances , custody of the child remains with the court and it is for the court , and not the local authority , to take major decisions regarding the ward ’s future ; it retains , inter alia , jurisdiction to make orders for access to the child .

PERSON proceedings may be instituted by anyone who can show an appropriate interest in the child ’s welfare . An application for a wardship order has to be made by originating summons . The child becomes a ward immediately the summons is issued but the wardship automatically lapses after DATE unless within that time an appointment is made for the hearing of the summons . This appointment is normally held before a registrar who , subject to an appeal to a judge , may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings .

A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child . From the judge ’s order , an appeal lies to ORG and thence , with leave , to ORG .

The child may be represented in wardship proceedings by a guardian ad litem appointed by the court ; this is usually the Official Solicitor , who is a full - time public employee entirely independent of the executive .

Under the Rules of ORG , it is possible to seek an order expediting the proceedings , notably if a party thereto is dilatory .

ORG The functions of a local authority in child - care matters are exercised and decisions are taken either by its ORG or by a sub - committee or an officer to whom powers have been delegated . At the time relevant to the present case , the practice varied from authority to authority , there being no precise requirements or guidance even of a non - statutory kind , and much depended on the nature or gravity of the decision to be taken . Whether the child is in its care by virtue of the DATE [ DATE ] or LAW , the local authority must give first consideration to the need to safeguard and promote the child ’s welfare throughout his childhood , and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them , having regard to his age and understanding ( section CARDINAL of LAW DATE [ CARDINAL ) of the DATE Act ] ) .

Authorities’ decisions in this area are , in fact , often based on the outcome of case reviews or case conferences . The authority is under a statutory duty to review the case of each child in its care at DATE intervals ( section CARDINAL(CARDINAL ) of the DATE Act ) and , as a matter of practice , the child ’s position will in addition be regularly examined at case conferences . Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority ’s ORG , as well as by such other persons as health visitors , doctors and police officers .

ORG A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof , although he has no legal right to do so . His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority .

In the absence of legal proceedings , the parent can not compel the local authority to produce or permit inspection of TIME of its relevant meetings or reports produced thereat , although the authority has a discretion to allow such inspection . In proceedings for judicial review ( but not in juvenile court proceedings ) , the court may order the pre - trial disclosure of such documents , but only after leave to institute the proceedings has been obtained ( see paragraph CARDINAL below ) ; however , this would be a rare occurrence , the general rule being that the documents are privileged and not open to inspection .

ORG A parent whose child is in the care of a local authority is not automatically deprived of access to him . The continuation of access is , however , a matter within the discretionary power of the authority ( per Lord PERSON in ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . Thus , under LANGUAGE law , the question whether and to what extent a parent is to have access to his child who is in public care was , at the relevant time , within the competence of the local authority to decide , without any application to a court .

Both the DATE [ CARDINAL ] Act and the DATE Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable : the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time .

ORG The statutory remedies described in paragraphs CARDINAL and CARDINAL above , whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution , are directed to the order or resolution as such , there being , at the relevant time , no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child .

A decision of a local authority concerning access can , however , be challenged by way of an application for judicial review . Anyone who wishes to make such an application must first seek , normally within DATE of the decision , the leave of the court . The circumstances where judicial review will lie may be briefly summarised as follows :

( a ) the authority acted illegally , ultra vires or in bad faith ;

( b ) the authority failed to take into account relevant considerations , took account of irrelevant considerations or came to a decision to which no reasonable authority could have come ( Associated Provincial Picture Houses , Ltd. v. ORG [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) ;

( c ) the authority failed to observe statutory procedural rules or to act fairly ( see notably R v. ORG , ex parte C and R v. GPE , ex parte B , ORG , DATE ) .

The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision - making process itself , and the court will not act as a " court of appeal " from the body involved . Thus , where on a successful application for judicial review the court quashes an authority ’s decision , it will normally remit the matter to the authority for reconsideration ; it may , however , also direct the authority to reach a conclusion in accordance with the court ’s findings ( Rules of ORG , Order CARDINAL , rule ORG ) ) .

ORG In certain circumstances , the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former ’s care . The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation . In the leading case of ORG , ORG examined the relationship between the wardship jurisdiction and the authorities’ statutory powers . Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions , notably on such matters as access to the child : the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise ( except on judicial review principles ; see paragraph CARDINAL above ) the exercise of discretion within the field committed to them by statute . Sometimes , however , the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court .

The foregoing limits on ORG powers apply only where the wardship proceedings concern a child who is already in public care . If he is not , ORG can examine fully such questions as access and make such order as it considers to be in his best interests .

ORG The inability of parents to approach the courts , save as explained above , where decisions are made by a local authority affecting access to their children led ORG , in ORG Social Security Adjudications Act CARDINAL , to modify the law on this point .

Under the new provisions - which came into force on DATE , that is after the events giving rise to the present case - , a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent . The latter then has a right to apply to a juvenile court for an access order , requiring the local authority to allow access subject to such conditions as the court may specify . Where an access order has been made , there is a right to apply for variation . An appeal against the juvenile court ’s decision lies to ORG . Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration .

This new remedy applies only to decisions refusing or terminating access ; in all other cases , the nature and extent of access remain within the local authority ’s discretion .

ORG In DATE , the Government published a Code of Practice on Access to Children in Care . This document stresses the importance of involving the child ’s natural parents in the local authority ’s decision - making process in this area and of informing them fully and promptly as to the substance of decisions concerning access .

ORG A court can not make an adoption order in respect of a child unless , inter alia , it is satisfied that each parent freely and unconditionally agrees ( LAW DATE , section CARDINAL ) . However , such agreement may be dispensed with upon a number of grounds specified in that section , notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties . In reaching any decision relating to the adoption of a child , a court must have regard to all the circumstances , first consideration being given to the need to safeguard and promote his welfare throughout his childhood ( Children Act DATE , section CARDINAL ) .

Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of ORG . On an application for leave , the court ’s function is to consider whether the proposed adoption application is one that might reasonably succeed , the merits of the matter being examined subsequently , once leave has been granted and after compliance with the requirements concerning notices and reports .


CASE OF MARIA ATANASIU AND OTHERS v. ROMANIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The first CARDINAL applicants , PERSON and PERSON , were born in DATE and DATE respectively and live in GPE . The third applicant , PERSON , was born in DATE and lives in GPE .

Following the establishment of the communist regime in GPE in DATE , the ORG proceeded to nationalise buildings and agricultural land on a large scale .

One of the nationalisation decrees applicable in relation to immovable property was Decree no . ORG , under which buildings belonging to former industrialists , owners of large estates , bankers and owners of large trading enterprises were nationalised . Although this decree did not cover workers , civil servants , academics or retired persons , numerous properties belonging to those social categories were also nationalised . DATE virtually all agricultural land passed into the ownership of the agricultural cooperatives .

After DATE of the communist regime the ORG enacted a series of laws aimed at affording redress for breaches of property rights by the former regime .

Laws nos . NORP and CARDINAL/CARDINAL established the principle of restitution of nationalised immovable property and compensation in cases where restitution was no longer possible . Law no . NORP introduced a cap on compensation , but this was subsequently abolished by Law no . CARDINAL .

With regard to agricultural land , Laws nos . CARDINAL/CARDINAL , DATE and CARDINAL increased successively the surface area of land that could be returned to its owners . The last of these laws established a right to compensation in respect of land which could no longer be returned .

Law no . DATE harmonised the administrative procedures for restitution of properties covered by the above - mentioned laws .

According to a partial calculation made by the ORG , CARDINAL claims under the reparation laws have been registered ; the amount needed to pay the corresponding compensation is estimated at MONEY ( ORG ) .

In DATE , under Decree no . CARDINAL , the ORG nationalised several buildings belonging to Mr Atanasiu , the first applicant 's husband and the second applicant 's father . CARDINAL of the buildings was located at CARDINAL FAC in GPE .

On DATE , relying on the provisions of Law no . CARDINAL , Mr PERSON applied to the local board established to deal with applications lodged under that PERSON , seeking the return of the building . He received no response . On DATE Mr Atanasiu died and the applicants were recognised as his sole successors in title .

Under the terms of contracts entered into in accordance with PERSON no . MONEY , the company managing the building sold the QUANTITY flats located therein to the tenants .

On DATE the applicants lodged a claim with the domestic courts for restitution of the building . They relied on the provisions of ordinary law concerning respect for the right of property and alleged that the nationalisation of the property had infringed Mr PERSON 's legal rights . Subsequently , on the basis of a letter from GPE city council stating that CARDINAL of the flats had not been sold , the applicants restricted their claim to that part of the building .

In a judgment of CARDINAL DATE ORG allowed the claim and ordered that the above - mentioned part of the building be returned to the applicants . The court held that the building had been nationalised unlawfully since Mr PERSON had not belonged to any of the social categories covered by the nationalisation decree and the ORG could not therefore claim a valid title to the property . Following an appeal and a further appeal ( recurs ) by the city council , the judgment was upheld and became final .

The applicants lodged claims in separate proceedings seeking the restitution of the other flats . In total , they obtained CARDINAL final rulings in the form of judgments of ORG dated DATE , CARDINAL DATE , DATE , CARDINAL DATE and DATE directing the purchasers and the local authorities to return CARDINAL flats to them . In the case of CARDINAL other flat they obtained a decision of ORG dated DATE , still open to appeal , ordering the local authorities to pay them compensation . The last remaining flat in the building is the subject of the present application . Each of the abovementioned decisions was based on the finding that the building had been nationalised unlawfully .

On DATE the applicants brought an action in the ORG seeking to recover possession of flat no . CARDINAL . The action was directed against GPE , the company which managed the building and the purchasers of the flat , PERSON and PERSON The applicants also sought to have the contract of sale of DATE rescinded .

In a judgment of DATE ORG granted the action , declared the sale null and void and ordered the defendants to return the flat to the applicants . The court ruled that the nationalisation of the building had been unlawful and that the contract of sale was not valid .

In a judgment of DATE ORG allowed the appeals lodged by GPE and PERSON and PERSON It thus dismissed the applicants ' action , holding that the nationalisation had been lawful and that the contract of sale was valid since it complied with the conditions laid down by PERSON no . DATE . The applicants lodged a further appeal .

In a final judgment of CARDINAL DATE ORG and Justice ( “ the ORG ” ) admitted the appeal for adjudication but dismissed the applicants ' arguments and declared their action inadmissible . It considered that the applicants had lodged their action after the date of entry into force of Law no . CARDINAL/CARDINAL ( see paragraphs CARDINAL below ) and that after that date they could claim restitution of the flat only in the circumstances and in accordance with the procedure laid down by PERSON no . CARDINAL/CARDINAL .

As to the application to have the contract of sale rescinded , the ORG upheld the reasons given by ORG but ruled that , since the applicants ' main complaint concerning the restitution of the flat had been dismissed , the application for rescission was likewise inadmissible .

On DATE , relying on the provisions of Law no . CARDINAL/CARDINAL , the applicants lodged a claim with GPE city council for restitution of the whole of the building located on FAC .

Having received no reply within the statutory DATE timelimit , they brought an action against the city council on DATE . In a judgment of CARDINAL DATE ORG allowed the action and ordered the city council to give a decision on the applicants ' claim . Following a further appeal by the city council the ORG dismissed the latter 's argument to the effect that the delay had been caused by the applicants ' failure to submit a complete file . In a final judgment of DATE it upheld the order against the city council and ruled that no fault capable of causing the delay could be attributed to the applicants .

On DATE the city council wrote to ORG informing him that consideration of the claim had been suspended pending receipt of the missing documents .

In DATE a plot of land in GPE belonging to the applicant 's parents was nationalised . Part of the land was subsequently turned into a botanic garden and allocated to ORG , a public highereducation establishment .

On DATE , relying on Law no . CARDINAL , the applicant requested ORG to pay her compensation in respect of the nationalised land . She pointed out that the ORG 's botanic garden occupied QUANTITY . m out of a total area of QUANTITY m.

By decision no . CARDINAL of DATE ORG rejected the applicant 's request on the ground that there were no funds in its budget which could be used for compensation of that kind . ORG forwarded her request to the Dolj prefect 's office .

On DATE the applicant brought legal proceedings against ORG , seeking compensation in respect of the CARDINAL sq . m of land , the value of which she estimated at MONEY ( ORG ) per square metre .

At the request of ORG , ORG , in an interlocutory judgment of DATE , ordered that the ORG , represented by ORG , be joined to the proceedings as a defendant .

In a judgment of CARDINAL DATE ORG dismissed the applicant 's claims as premature , finding that she should have awaited a decision from the prefect 's office on her request for compensation . However , the court took the view that the applicant had demonstrated her parents ' title to the property and the fact that the land had been wrongfully nationalised .

The applicant appealed against that judgment .

On DATE ORG allowed the applicant 's appeal , quashed the first - instance judgment and set aside decision no . CARDINAL/A/CARDINAL . It based its ruling on a letter from ORG to the Dolj prefect 's office dated DATE , in which the former had agreed to the award of compensation to the applicant . In the operative part of its decision ORG assessed the compensation due to the applicant at USD MONEY per square metre , in line with the agreement reached between the parties during the proceedings . The court also stated in its reasoning that the compensation should be paid to the applicant once a special law had been enacted on the terms and procedure governing compensation and the amount of compensation awards .

The applicant , ORG and ORG all lodged further appeals against the decision , on the ground that no agreement had been reached between the parties . The applicant also alleged that the impugned decision did not state which of the CARDINAL defendants – the ORG or the NORP State – was liable for payment .

In a final judgment of DATE the ORG dismissed the appeals and upheld the decision of ORG of DATE . It took the view that , under section CARDINAL of Law no . CARDINAL , ORG , which had been using the land claimed by the applicant , was obliged , if restitution was not possible , to make an offer of compensation corresponding to the value of the property and to forward its decision to the Dolj prefect 's office .

The ORG went on to observe that , during the proceedings , ORG had submitted the letter of CARDINAL DATE in which it informed the PERSON prefect 's office of its consent to the award of compensation to the applicant in the amount claimed by her . The ORG took the view that the content of that letter constituted an offer made in accordance with sections CARDINAL and CARDINAL of Law no . CARDINAL/CARDINAL and accepted by the applicant . According to the ORG , the offer from the ORG amounted to acceptance on its part of the applicant 's claims . Accordingly , ORG had simply noted the fact that the ORG had taken steps in the course of the proceedings to comply with its statutory obligations .

The ORG further stated that no specific obligation had been established on the part of ORG , which had been a party to the proceedings , as the actual award of compensation in the amount established was to be made in accordance with the special procedure laid down by PERSON no . DATE .

NORP In a decision of DATE ORG made a proposal to the Dolj prefect 's office for the applicant to be awarded compensation in respect of the QUANTITY . m plot of land in accordance with ORG decision of CARDINAL DATE . ORG based its decision on Law no . CARDINAL/CARDINAL .

In reply to a letter dated DATE from ORG ( “ the NAPR ” ) requesting it to take a decision on the basis of Law no . DATE , ORG proposed to the Dolj prefect 's office on DATE that the applicant be awarded the compensation in question . The University stated that the file would be sent to ORG ( LOC centrală pentru Stabilirea Despăgubirilor – “ the Central Board ” ) .

ORG did not inform the applicant of any action taken in response to that decision . To date , no compensation has been paid to her .

At the hearing of DATE the ORG stated that the applicant 's claim would receive priority treatment .

The main legislative provisions in force are described in GPE v. GPE [ ORG ] , no . CARDINAL , LAW DATE , ORG CARDINALVII ; PERSON and Others v. GPE , no . CARDINAL , § DATE , ORG CARDINALVII ; ORG v. GPE , no . CARDINAL , § § DATE , ORG CARDINALXII ( extracts ) ; PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ; PERSON v. GPE , no . GPE , § § DATE , DATE ; PERSON , no . CARDINAL , § DATE , DATE ; PERSON v. GPE , no . CARDINAL , § DATE , DATE ; and GPE v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE . They can be summarised as follows .

LAW ( Law no . CARDINAL of DATE ) conferred on former owners and their successors in title the right to partial restitution of agricultural land . The most important amendment to that LAW was made by LAW no . CARDINAL of DATE , which raised the ceiling for entitlement to QUANTITY per person in the case of arable land and QUANTITY per person for pasture land . If restitution was not possible , the beneficiaries were entitled to compensation .

In the absence of special legislation laying down rules governing nationalised immovable property , the courts initially considered that they had jurisdiction to examine the issue of the lawfulness of nationalisation decisions and to order that properties be returned to their owners if they were found to have been nationalised unlawfully .

The entry into force of Law no . CARDINAL of DATE on the legal status of certain residential property authorised the sale of such properties to the tenants . Properties could be returned to the former owners or their successors in title only if the persons concerned were living in the properties as tenants or the properties were unoccupied . If restitution was not possible the former owners could claim compensation , which was capped .

As to buildings and land which had belonged to national minority organisations and religious institutions , Government Emergency Ordinances no . CARDINAL of DATE and no . CARDINAL of DATE provided for them to be returned to their owners or , failing that , for compensation to be awarded .

Law no . CARDINAL of DATE on the rules governing immovable property wrongfully acquired by the ORG established the principle of restitution of the properties concerned . In cases where restitution was no longer possible the former owners or their successors in title could claim compensation , which was not capped .

Law no . CARDINAL of DATE provides that immovable property sold under PERSON no . DATE may no longer be returned to the former owners and that only alternative measures of redress are possible . The choice between an action for recovery of possession and the special restitution procedure under PERSON no . CARDINAL/CARDINAL has been abolished in favour of the latter .

In addition to the properties covered by the above - mentioned legislative provisions , the ORG undertakes to compensate former owners or their successors in title who lost buildings , land or crops abandoned on certain territories following border changes before and during the Second World War . The administrative procedure for obtaining compensation in respect of such property , provided for by LAW . CARDINAL/CARDINAL , ORG and ORG and coordinated by the LOC , differs from that for nationalised immovable property , and the necessary funds come out of the ORG budget .

Law no . DATE on judicial and property reform , which is still in force , made substantial amendments to the existing compensation laws , in particular by introducing a harmonised administrative procedure for claims concerning properties covered by LAW . CARDINAL/CARDINAL and CARDINAL and by Government Emergency Ordinances nos . CARDINAL and CARDINAL/CARDINAL .

The law in question provides that , where restitution is not possible , the beneficiaries of reparation measures can opt either for compensation in the form of goods and services or for payment of an amount calculated in accordance with “ domestic and international practice and standards on compensation for buildings and houses wrongfully acquired by the ORG ” .

The leading role in implementing this law was entrusted to CARDINAL newly created structures : ORG ( LOC centrală pentru Stabilirea Despăgubirilor – “ the Central Board ” ) and ORG ( Autoritatea Naţională pentru PERSON – “ the LAW ” ) .

New time - limits were set for lodging claims for restitution or compensation : DATE for agricultural land and DATE for immovable property that had belonged to religious institutions and national minority organisations .

The lawfulness of local authority decisions awarding compensation or proposing an award must be reviewed by the prefect , who must then forward the decisions to ORG .

The provisions governing such review are set out in Government Decree no . CARDINAL of DATE , according to which , if the prefect considers the decision of the mayor or other local administrative authorities to be unlawful , he may appeal against it in administrative contentious proceedings within DATE of the decision .

On receipt of the file ORG must verify the lawfulness of the decision refusing restitution and subsequently forward the file to “ approved assessors ” for the purpose of fixing the amount of compensation . On the basis of their report ORG either issues a “ compensation certificate ” or returns the file to the local authorities for fresh examination .

Law no . DATE does not lay down time - limits for the processing of files by ORG or specify the order in which they should be dealt with . On DATE ORG decided that files would be processed in random order . On DATE it reversed that decision and decided to deal with them in the order in which they were registered .

NORP In order to deal with the payment of compensation awarded by ORG , an undertaking for collective investment in transferable securities was set up , known as ORG . Its capital is made up largely of ORG holdings in various companies .

Law no . DATE provided that ORG was to take the necessary steps , within DATE from its establishment , with a view to having its shares listed on the stock exchange so that the beneficiaries of compensation decisions taken under the restitution laws could sell their shares and receive the proceeds at any time .

Since DATE , Law no . DATE has been amended several times as regards both the operation and financing of ORG and the method of calculating compensation and the procedure for making awards .

On DATE the Government enacted Emergency Ordinance no . CARDINAL/CARDINAL amending the organisation and operation of ORG . Among other measures , the ordinance , which has since been confirmed by PERSON no . CARDINAL of DATE , made it possible for beneficiaries from the ORG to receive part of the amount due in cash .

Under the terms of Government Decree no . CARDINAL of DATE concerning the implementation of Ordinance no . CARDINAL/CARDINAL , following the issuing of the “ compensation certificate ” ( titlu de despagubire ) by ORG , the person concerned has a choice between receiving part of the amount in cash ( up to a limit of CARDINAL NORP lei ( PERSON ) ) and the remainder in shares , or receiving the entire amount in shares . The preferred option must be notified to the ORG , which replaces the “ compensation certificate ” with a “ payment certificate ” ( titlu de plata ) corresponding to the amount to be paid in cash and a “ conversion certificate ” ( titlu de conversie ) corresponding to the remainder , to be converted into NORP shares .

The persons concerned have to make their choice within DATE from the issuing of the “ compensation certificate ” by ORG . The corresponding requests are to be examined in chronological order , but no express timelimit is laid down .

Cash sums up to and including ORG CARDINAL,CARDINAL must be paid within DATE from the date on which the payment certificate is issued ; for sums between ORG CARDINAL,CARDINAL and RON CARDINAL,CARDINAL the time - limit is DATE .

Under Government Emergency Ordinance no . CARDINAL of DATE the payment of cash sums was suspended for a DATE period in order to balance the budget . During that period “ compensation certificates ” may only be converted into NORP shares .

DATE . At the request of some members of ORG reviewed the constitutionality of LAW . LANGUAGE , CARDINAL , CARDINAL and DATE prior to their entry into force . In decisions given on DATE , DATE , DATE and DATE , it held that the laws in question were compatible with the LAW , with the exception of the provisions of LAW no . DATE which reaffirmed the ORG 's ownership of immovable property which it had acquired without title ; these provisions also made the adoption of reparation measures conditional on proof that the claimant had his or her permanent residence in GPE .

In the context of the review of the constitutionality of the legislation after its entry into force , ORG was called upon to rule again on whether some of the provisions were compatible with LAW . It dismissed most of the objections as to constitutionality raised in the domestic courts and reaffirmed that the laws in question were compatible with LAW .

NORP In decision no . CARDINAL of DATE ORG held that any person who had lodged a claim under PERSON no . CARDINAL/CARDINAL within the statutory time - limit was entitled to reparation measures and in particular to restitution of the property concerned if it had been nationalised unlawfully .

After the entry into force of Law no . DATE , the practice of the domestic courts was undermined by the absence of a stable legislative framework . The courts gave several different interpretations of concepts such as ORG “ title ” , the purchaser 's “ good faith ” and “ appearances in law ” , and also of the relationship between actions for recovery of possession and the restitution procedures provided for by the special legislation ( see ORG , cited above , § CARDINAL ) .

As to the position of the ORG concerning the jurisdiction of the domestic courts to determine claims for restitution of nationalised properties in cases where the administrative authorities had failed to respond to the notifications issued under PERSON no . CARDINAL/CARDINAL , the full court , in judgment no . DATE published in ORG on DATE , held following an appeal in the interests of the law that the domestic courts had jurisdiction to determine the merits of claims and , where appropriate , to order the restitution of the property in question or award statutory compensation .

In judgments ORG . CARDINAL and CARDINAL of DATE and DATE , published in ORG on CARDINAL DATE and DATE , the ORG , sitting as a full court and again ruling on CARDINAL appeals in the interests of the law , held that following the entry into force of PERSON no . CARDINAL actions for recovery of possession of properties expropriated or nationalised before DATE which had been lodged in parallel with the restitution procedure laid down by PERSON no . CARDINAL/CARDINAL were inadmissible . However , as an exception to that rule the ORG held that persons who had a “ possession ” within the meaning of LAW No . CARDINAL to the Convention could bring an action for recovery of possession provided it did not infringe ownership rights acquired by third parties in good faith .

In judgment no . CARDINAL of DATE , published in ORG on DATE , the ORG , sitting as a full court and ruling once more on an appeal in the interests of the law , held that the administrative procedure provided for by PERSON no . CARDINAL/CARDINAL did not apply to claims for restitution or compensation already determined by the local administrative authorities under PERSON no . CARDINAL/CARDINAL .

With regard to local administrative authority decisions granting claims for restitution or compensation under PERSON no . CARDINAL/CARDINAL , the ORG held that they gave rise to property rights for the persons concerned and that , accordingly , they could no longer be revoked or set aside by the local administrative authorities or ORG ( judgments nos . DATE of DATE and DATE of DATE of ORG of the ORG ) .

DATE . As to claims submitted to ORG under PERSON no . CARDINAL on which no decision had been given , the ORG ruled that the courts could not take the place of ORG in calculating the compensation ( judgments nos . DATE of DATE and CARDINAL DATE of ORG of the ORG ) . However , the ORG ruled that although ORG was not bound by any statutory time - limit in giving its decision it was required to determine claims for restitution or compensation within a “ reasonable time ” as construed by the case - law of ORG ( judgments nos . CARDINAL and CARDINAL of DATE of ORG of the ORG ) .

The statistics issued by the ORG in DATE and provided by the Government are as follows :

– CARDINAL claims had been registered with the local authorities under PERSON no . CARDINAL/CARDINAL . CARDINAL files had been examined and an award of compensation had been proposed in CARDINAL cases ;

– CARDINAL,CARDINAL files compiled under PERSON no . CARDINAL and CARDINAL under Government Emergency Ordinances nos . CARDINAL and CARDINAL/CARDINAL had been forwarded to ORG , which had issued CARDINAL “ compensation certificates ” . The remaining files were under consideration ;

– with regard to LAW . CARDINAL/CARDINAL and CARDINAL concerning agricultural land , according to a partial calculation relating to CARDINAL out of CARDINAL counties , CARDINAL claims for restitution or compensation had been lodged with the local authorities . A total of CARDINAL files compiled under the laws in question had been forwarded to ORG , which had granted CARDINAL of the claims and had issued CARDINAL “ compensation certificates ” . The remaining files were under consideration ;

– with regard to claims for restitution of land or compensation under PERSON no . DATE , CARDINAL claims had been registered with the local authorities . CARDINAL of these had been granted and compensation had been proposed ;

– of the persons who had received “ compensation certificates ” , CARDINAL had opted to receive part of the sum in cash , amounting to a total of MONEY ( MONEY ) . CARDINAL people had received payments totalling about RON CARDINAL ( approximately EUR CARDINAL ) .

Shares in ORG , in existence since DATE , are still not listed on the stock exchange . However , since DATE the ORG has been paying dividends to its shareholders and since DATE its shares may be sold by means of direct transactions under the supervision of the stock exchange regulatory authority . By way of example , CARDINAL sales of shares were registered in DATE .

According to the information published on DATE by ORG , ORG is the majority shareholder , with PERCENT of the ORG 's shares . A further PERCENT are held by CARDINAL legal entities , while PERCENT are owned by CARDINAL individual shareholders .

According to ORG estimates a total of ORG CARDINAL will be needed to pay the compensation provided for by the compensation laws .

In Resolution Res(CARDINAL)CARDINAL on judgments revealing an underlying systemic problem , adopted on CARDINAL DATE , ORG stated as follows :

“ The Committee of Ministers , in accordance with LAW ,

Invites the Court :

I. as far as possible , to identify , in its judgments finding a violation of the LAW , what it considers to be an underlying systemic problem and the source of this problem , in particular when it is likely to give rise to numerous applications , so as to assist states in finding the appropriate solution and ORG in supervising the execution of judgments ;

II . to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to ORG , but also to ORG , to the Secretary General of ORG and to ORG for Human Rights , and to highlight such judgments in an appropriate manner in the database of the ORG . ”

ORG Recommendation Rec(CARDINAL)CARDINAL on the improvement of domestic remedies , adopted on DATE , provides :

“ ORG , in accordance with LAW ,

Recommends that member states , taking into account the examples of good practice appearing in the appendix :

I. ascertain , through constant review , in the light of case - law of the ORG , that domestic remedies exist for anyone with an arguable complaint of a violation of the LAW , and that these remedies are effective , in that they can result in a decision on the merits of the complaint and adequate redress for any violation found ;

II . review , following ORG judgments which point to structural or general deficiencies in national law or practice , the effectiveness of the existing domestic remedies and , where necessary , set up effective remedies , in order to avoid repetitive cases being brought before the ORG ;

III . pay particular attention , in respect of aforementioned items I and II , to the existence of effective remedies in cases of an arguable complaint concerning the excessive length of judicial proceedings ;

The relevant part of the Appendix to Committee of Ministers Recommendation Rec(CARDINAL)CARDINAL reads as follows :

When a judgment which points to structural or general deficiencies in national law or practice ( ' pilot case ' ) has been delivered and a large number of applications to the ORG concerning the same problem ( ' repetitive cases ' ) are pending or likely to be lodged , the respondent state should ensure that potential applicants have , where appropriate , an effective remedy allowing them to apply to a competent national authority , which may also apply to current applicants . Such a rapid and effective remedy would enable them to obtain redress at national level , in line with the principle of subsidiarity of the Convention system .

The introduction of such a domestic remedy could also significantly reduce the ORG 's workload . While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter , there may exist a category of people who have already been affected by this problem prior to its resolution . The existence of a remedy aimed at providing redress at national level for this category of people might allow the ORG to invite them to have recourse to the new remedy and , if appropriate , declare their applications inadmissible .

Several options with this objective are possible , depending , among other things , on the nature of the structural problem in question and on whether the person affected by this problem has applied to the ORG or not .

In particular , further to a pilot judgment in which a specific structural problem has been found , CARDINAL alternative might be to adopt an ad hoc approach , whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation .

Within the framework of this case - by - case examination , states might envisage , if this is deemed advisable , the possibility of reopening proceedings similar to those of a pilot case which has established a violation of the Convention , with a view to saving the ORG from dealing with these cases and where appropriate to providing speedier redress for the person concerned . The criteria laid out in Recommendation Rec(CARDINAL)CARDINAL of ORG might serve as a source of inspiration in this regard .

When specific remedies are set up following a pilot case , governments should speedily inform the ORG so that it can take them into account in its treatment of subsequent repetitive cases .

However , it would not be necessary or appropriate to create new remedies , or give existing remedies a certain retroactive effect , following every case in which a ORG judgment has identified a structural problem . In certain circumstances , it may be preferable to leave the cases to the examination of the ORG , particularly to avoid compelling the applicant to bear the further burden of having once again to exhaust domestic remedies , which , moreover , would not be in place until the adoption of legislative changes .

On DATE , at their CARDINALth meeting , ORG responsible for supervising execution of the ORG 's judgments observed , with reference to the PERSON and PERSON cases and CARDINAL other NORP cases of the same type , that the issues raised therein reflected a major systemic problem linked in particular to the absence of restitution or compensation in respect of properties which had been nationalised and were subsequently sold by the ORG to third parties . They took note of the action plan presented by the NORP authorities on CARDINAL DATE and invited them to submit a tentative timetable for adoption of the measures envisaged .

In DATE following the Second World War the communist regimes in numerous central and eastern NORP countries conducted massive programmes of nationalisation and expropriation of immovable property , industrial , banking and commercial structures and , with the exception of GPE , agricultural structures .

In DATE restitution measures were adopted in many of these countries , whose political and legal situations differed . The detailed arrangements and scope of the measures varied and there were wide differences in the forms of compensation adopted by States .

GPE , GPE and GPE and GPE ) have not enacted any legislation concerning restitution or compensation in respect of properties that were nationalised or confiscated .

The legislation in GPE does not establish a general right to restitution or compensation in respect of properties that were confiscated or nationalised . The sole exception concerns the LOC region and is confined to a right to compensation . In practice , the persons entitled can opt either to have the index - linked value of the abandoned properties deducted from the price of a ORG - owned property acquired by means of a competitive bidding procedure , or to receive money from the compensation fund . The amount of compensation which claimants may receive is subject to a statutory ceiling of PERCENT of the current value of the property lost in LOC .

NORP The NORP legislation on partial compensation for damage caused to citizens ' property by the ORG provides for compensation to be paid in monetary form or in the form of coupons . There is also a statutory cap on compensation .

NORP The majority of the countries concerned restrict the right to restitution or compensation to certain categories of properties or claimants . In some countries the legislation lays down time - limits , sometimes very short , for lodging claims .

NORP Some countries provide for various forms of restitution and/or compensation by means of so - called “ restitution ” laws : this is the case in GPE , GPE , GPE and “ the former GPE ” . Others have dealt with the issue of restitution under rehabilitation laws ( GPE , GPE , GPE , GPE , GPE and GPE ) . Finally , the issue is also dealt with under property legislation ( GPE , GPE , GPE , GPE and GPE ) .

NORP In all cases , restitution is not an absolute right and may be subject to numerous conditions and restrictions . The same is true of the right to compensation .

Either the former owners or their successors in title ( lawful heirs in GPE ) may be eligible for restitution or compensation in respect of confiscated or nationalised property . In some countries including GPE , GPE , GPE , GPE , GPE and GPE , the legislation requires the claimant to be a citizen either when the property was confiscated or when the claim for restitution is made , or in some cases even both . In addition , the law in GPE and GPE requires claimants to be permanent residents both when the law entered into force and when the claim for restitution or compensation is made . In those systems where there is a rehabilitation procedure , only persons rehabilitated in accordance with the law may claim restitution of their property . This is the case in GPE , GPE , GPE , GPE , GPE and GPE . In these countries entitlement to restitution or compensation is wholly or partially linked to the rehabilitation of victims of political repression .

The legislation in some countries excludes several categories of properties from restitution or compensation .

In some cases the legislation excludes land and buildings the character of which has been altered ( GPE ) ; other countries exclude property which has lost its original character ( GPE ) or property which has disappeared or been destroyed , as well as properties which have passed into private ownership ( GPE , GPE and GPE ) .

In addition , under NORP law , military property , cultural and social assets and property under ORG protection , as well as buildings used by the ORG or local administrative authorities , are excluded from restitution . Under the legislation in GPE plots of land , forests , perennial plantations and property confiscated on grounds unrelated to political repression are also ineligible for restitution .

In GPE and GPE properties which were nationalised in accordance with the legislation in force at the time do not qualify for restitution or compensation .

In GPE restitution is possible only in the case of residential property . The NORP legislation provides only for partial restitution of agricultural land . Finally , in GPE and GPE the restitution laws specify the properties which are covered .

Some legislation imposes temporal restrictions on the lodging of claims for restitution or compensation . This is the case in GPE and GPE , where former owners were given DATE in which to lodge a claim , and in GPE , GPE and “ the former GPE ” ( DATE from the date of entry into force of the law on rehabilitation ) .

Elsewhere , the legislation restricts restitution or compensation to properties nationalised or confiscated during a certain period . By way of example , the NORP compensation scheme is limited to properties nationalised after DATE but compensation is awarded for properties nationalised DATE in the NORP - occupied zone .

A number of countries have opted to provide compensation in the form of another property equivalent to that which was nationalised or confiscated ( GPE , GPE , GPE , GPE and “ the former GPE ” ) .

Where no exchange is possible the legislation allows the person concerned to be provided with a property of a different kind , a sum of money , compensation vouchers ( GPE and GPE ) , ORG securities or bonds ( GPE and “ the former GPE ” ) or shares in a public company ( GPE and GPE ) .

The amount of compensation is calculated mainly by reference to the market value of the property at the time of the restitution or compensation decision ( GPE , GPE , GPE , GPE , GPE and GPE ) or at the time the property was confiscated ( “ the former GPE ” ) , or as otherwise provided by law .

ORG . NORP Some countries take account of other considerations in addition to the market price . In GPE , when compensation is provided in the form of shares the amount is equal to the value of the property at the time of the decision or the value of the privatised public property .

Other factors may also be taken into consideration in determining the amount of compensation . In GPE , for instance , account is taken of the value of the property before expropriation , which is then multiplied by a coefficient laid down by law .

In some countries the legislation sets a cap on compensation ( GPE , GPE and GPE ) , or provides for payment in instalments ( GPE ) .

The authorities responsible for determining restitution or compensation claims may be judicial or administrative . The most common arrangements include special restitution and compensation boards ( GPE , GPE , GPE and GPE ) , administrative bodies ( GPE ) , ORG or ORG , or even the courts ( GPE ) . In all the countries surveyed an appeal lies to the administrative or civil courts against the decisions of the administrative bodies .


Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in LOC .

It appears that from DATE the volume of cross - town traffic in LOC increased , since a toll had been introduced on the neighbouring , privately owned motorway MCARDINAL . In order to avoid the rather high toll charge , many trucks chose alternative routes including the street ( a section of national road no . CARDINAL ) in which the applicant 's house is situated .

To counter this situation , from DATE onwards three bypass roads were built ; and several measures , including QUANTITY , were implemented in order to discourage traffic in the neighbourhood . CARDINAL nearby intersections were provided with traffic lights . In DATE road signs prohibiting the access of vehicles of QUANTITY and re - orientating traffic were put up along an LOC thoroughfare , an arrangement which also affected the applicant 's street . The Government submitted that compliance with these measures had been enforced by the increased presence of the police in general in LOC and in particular in the applicant 's street ; in the applicant 's view , however , no effective enforcement was in place .

NORP In or about CARDINAL the applicant observed damage to the walls of his house . He obtained the opinion of a private expert , who stated that the damage was due to vibrations caused by the heavy traffic . The applicant also alleges that , because of the increased noise and pollution due to exhaust fumes , his home has become almost uninhabitable .

On DATE the applicant brought an action in compensation against ORG before ORG . He claimed that , due to increased freight traffic in his street , the walls of his house had cracked . The case was transmitted to ORG for reasons of competence on DATE . On DATE , DATE and DATE , the court held hearings . On DATE it dismissed the claims .

On appeal , ORG , acting as a second - instance court , held a hearing on DATE , quashed the first - instance judgment and remitted the case .

In the resumed proceedings , on DATE ORG appointed as expert ORG at ORG . The latter presented an opinion on DATE which was discussed at the hearing of DATE . The expert stated that the level of noise outside the applicant 's house had been measured as CARDINAL dB(A ) on DATE and CARDINAL dB(A ) on DATE , TIME on both occasions , as opposed to the applicable statutory limit of CARDINAL dB(A ) . On DATE the court held another hearing and ordered the supplementation of the opinion , which was done on DATE .

On DATE ORG dismissed the applicant 's claims . It relied on the opinion of the expert , documentary evidence and the testimony of the parties . It refused the applicant 's motion to obtain the opinion of another expert since it was of the view that the original opinion was thorough and precise .

The court noted the expert 's opinion that the vibration , as measured on the scene , was not strong enough to cause damage to the applicant 's house , nor could the traffic noise entail cracks in its walls although it was higher than the statutory level . The court therefore concluded that no causal link could be established between the measures adopted by the respondent authority and the damage to the house . The court observed that the respondent had spent CARDINAL MONEY on developing the road system in the area , constructed CARDINAL roundabouts and put up several road signs and traffic lights in order to divert traffic from LOC . In sum , it had carried out every measure with a view to sparing ORG from heavy traffic and limiting the speed of cross - town traffic that could reasonably be expected in the circumstances to protect the applicant 's interest . The respondent had to balance competing interests , since the barring of heavy vehicles from a public road might have been advantageous to the inhabitants of LOC but could have caused disproportionate prejudice to the other users or providers of public and private transportation .

On DATE ORG dismissed the applicant 's appeal .


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award

András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by the police on the public highway and taken in the course of the evening to Lommelet de Saint - André Psychiatric Hospital , where she was compulsorily admitted at the request of a third party .

The Government submitted that the applicant had been “ picked up ” on the public highway by a police officer who had asked for her to be admitted to hospital . They added that her admission had been ordered on the basis of CARDINAL medical certificates issued by different doctors to the effect that she required hospital treatment .

The applicant disputed that account and stated that she had been arrested while cycling to the shops and taken to the police station , where she had promptly been examined by a doctor who had been requisitioned to draw up a medical certificate for her admission to hospital .

She submitted that after her admission at the hospital she had immediately been undressed and made to lie down with all CARDINAL limbs attached to the bedposts in a seclusion cell , without being given any explanation . She had not undergone a medical examination on arrival but had been injected with unknown substances . She had remained in that position for DATE , and was released only briefly at mealtimes .

She remained in the hospital until DATE , without being allowed to receive visits or to make or receive telephone calls .

In the meantime , on DATE , the applicant 's mother applied by registered letter to the President of the GPE tribunal de grande instance for her daughter 's immediate discharge . The parties have been unable to establish the date on which the letter was received . However , in a letter of DATE , ORG replied that he was not empowered to deal with the subject matter of her correspondence and that her daughter was required to apply directly to him to be discharged .

On DATE Afcap in turn applied to the President of the GPE tribunal de grande instance for the applicant 's immediate discharge .

On DATE ORG decided to take no further action on that application as it was devoid of purpose .

Neither the President of the GPE tribunal de grande instance nor the judge responsible for matters relating to personal liberties and detention ( juge des libertés et de la détention – “ the liberties and detention judge ” ) ever gave a ruling on the applications .

The following provisions of LAW are relevant to the present case :

“ Persons who have been admitted to hospital without their consent or have been detained in any public or private institution for patients being treated for mental disorders , or their guardian if they are minors , their guardian or adviser if they are above the age of majority and a court order for such appointment has been made , their spouse or cohabitant , a parent or a person capable of acting in their interests or , where appropriate , a court - appointed adviser in relation to personal welfare may appeal at any time by means of an application to the President of the tribunal de grande instance for the judicial district in which the institution is situated , who , in his capacity as urgent - applications judge , shall , after hearing representations from each party and carrying out the necessary checks , order their immediate discharge where appropriate .

An appeal to the same effect may be lodged by a person who has requested the patient 's compulsory admission or by ORG , of his own motion .

The President of the tribunal de grande instance may also of his own motion make an order at any time for the discharge of a person who has been compulsorily admitted to hospital . To that end , any interested parties may bring to his attention any information they consider useful about the patient 's circumstances .

N.B. Section QUANTITY of DATE amends LAW of LAW as follows : in the first paragraph , ' President ' is replaced by ' liberties and detention judge ' ; at the start of the last paragraph , ' President of the tribunal de grande instance ' is replaced by ' liberties and detention judge ' . This amendment has not been inserted into the wording of the new Article L. CARDINAL of LAW ( former L. CARDINAL ) , as resulting from Ordinance no . DATE of DATE . ”

“ A person with a mental disorder can not be admitted to hospital without his consent at the request of another unless

( CARDINAL ) his disorder makes it impossible for him to consent ; and

( CARDINAL ) his condition requires immediate treatment and constant monitoring in a hospital environment .

An application for compulsory admission may be made either by a member of the patient 's family or by a person capable of acting in his interests , but not by any medical personnel serving in the institution in question .

The application must be handwritten and signed by the person making it . If the person is unable to write , the application shall be received by the mayor , the police superintendent or the director of the institution , who shall take formal note of it . It shall contain the surname , forenames , profession , age and home address both of the person making the application and the person whose admission is being requested , together with an indication of the nature of the relationship between them and , where relevant , their degree of kinship .

The application for admission shall be accompanied by CARDINAL detailed medical certificates issued DATE previously , attesting that the conditions laid down in the second and third paragraphs above are satisfied .

The first medical certificate may be issued only by a doctor not practising in the institution to which the patient is to be admitted ; he shall observe the person 's mental state , indicate the particular features of his disorder and explain the need for his compulsory admission . It must be confirmed by a certificate issued by a second doctor who may practise in the institution to which the patient is to be admitted . The CARDINAL doctors shall not be related by blood or marriage , up to the fourth degree inclusive , either to each other or to the directors of the institutions referred to in LAW , or to the person making the application or to the person whose admission is being sought . ”

“ A person admitted at the request of another to an institution referred to in LAW CARDINAL - CARDINAL shall likewise cease to be detained there as soon as his discharge is requested by :

( CARDINAL ) if the person is unmarried , the ascendants ;


MARTINOVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant , PERSON , is a citizen of the former GPE who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On an unspecified date in DATE the applicant , together with CARDINAL other individuals , instituted civil proceedings against her employer , a company called PERSON ( “ the employer ” ) for payment of salary and other related allowances for the period of DATE to DATE .

On DATE ORG granted her claim ( and of the other claimants ) together with interest . On DATE ORG upheld the lower court ’s judgment . As stated by the applicant , the judgment was served on DATE , on an unspecified date .

On an unspecified date , the applicant requested ORG I to enforce the judgment ( предлог за извршување ) . On DATE it granted her request and ordered ORG ( “ the Bureau ” ) ( PERSON за платен промет ) to transfer from the employer ’s account the amount due to her . On DATE the applicant completed her application as requested by the court . However , the order was not enforced as there were no funds in the account .

On DATE the applicant requested the ORG to enforce her claim proposing another means of enforcement : an inventory , valuation and public sale of an employer ’s property ( the same property which was the subject - matter of the second set of proceedings ) . She requested the court to complete the enforcement by the proposed means only if her claim could not have been discharged by transferring the amount due to her from the employer ’s account .

On DATE the Skopje ORG forwarded the case - file to ORG , as court competent ratione loci .

In DATE the court requested the applicant to submit a certificate of title concerning the employer ’s property . It appears that in DATE she obtained a certificate of title and submitted it to the court .

On an unspecified date in DATE the applicant brought against the employer a compensation claim for payment of salary and other related allowances for DATE , after she had successfully challenged the lawfulness of her dismissal .

On DATE the ORG of First Instance partially granted her claim . On DATE ORG dismissed the employer ’s appeal and upheld the lower court ’s judgment .

On DATE the applicant requested the ORG to enforce the judgment by transferring the amount due to her from the employer ’s account into her account . On DATE the applicant completed her application submitting a copy of the judgment , as requested by the court .

On DATE the ORG granted the applicant ’s request and ordered the ORG to transfer the amount due to her from the employer ’s account .

On DATE the applicant proposed another means of enforcement , namely an inventory , valuation and public sale of an employer ’s property . It was sent to ORG with a request for forwarding the file to ORG as court competent ratione loci . On DATE the applicant submitted an addendum to the request .

On DATE ORG of First Instance refused the applicant ’s request for a charging order over the employer ’s property , as it had been the subject of other enforcement proceedings and sold to a third person on DATE . On DATE the creditor in those proceedings had taken possession of the property ( this decision became final on DATE ) .

On DATE the applicant appealed against the judgment before ORG ) .

On DATE ORG dismissed the applicant ’s appeal and upheld the lower court ’s judgment .

The applicant did not request the court to enforce her claim against other assets nor did she propose other means of enforcement as specified by law .

The applicant ’s cases concerning both sets of proceedings were set to archive in DATE , DATE and DATE , respectively .

On DATE the applicant requested ORG to join the CARDINAL sets of enforcement proceedings and to proceed only in respect to the employer ’s property , as its account reportedly had no funds .

On DATE the applicant repeated her request for joining the CARDINAL sets of enforcement proceedings . She also requested to have her enforcement proceedings joined with the proceedings of another creditor , PERSON , instituted against the employer .

On DATE the applicant submitted a corrected version of her request . On DATE the applicant repeated her request .

On CARDINAL and DATE , respectively , the applicant and PERSON requested the president of ORG and ORG to join their proceedings .

On DATE the ORG of First Instance informed the applicant and PERSON that on DATE the presiding judge had decided not to join the proceedings .

Section CARDINAL of LAW ( “ the LAW ” ) ( ORG за извршната постпка ) provides that enforcement and security proceedings are launched on creditor ’s request .

Section CARDINAL of the LAW provides the following means for enforcing judgment debts : ( i ) sale of movable property , ( ii ) sale of immovable property , ( iii ) transfer of a pecuniary claim , ( iv ) encashment of other proprietary rights , and ( v ) transfer of funds from an account managed by ORG , in accordance with the regulations .

In accordance with LAW , the courts are required to enforce judgment debts by the means and against the assets specified in the request for execution .

Section CARDINAL provides that a request for execution should specify : the creditor and debtor ; the final order ; the debtor ’s duty ; the means and assets for enforcement and other information necessary for completion of the enforcement .

In accordance with section CARDINAL § CARDINAL , the enforcement order is served on the creditor and the debtor . The dismissal of the request for execution is served only on the creditor .

Section CARDINAL of the LAW provides that enforcement over immovable property is effected by recording the order in the register , obtaining a valuation of the property , selling it and settling the LOC claims from the proceeds of sale .

Section CARDINAL paragraph CARDINAL of the LAW provides , inter alia , that in support of a request for a charging order over immovable property , the creditor should submit an extract from the public records , as evidence that the property is owned by the debtor .

Section CARDINAL of the LAW states that the court will not stay enforcement proceedings if there are no funds in the debtor ’s account managed by ORG . Instead , ORG is required to keep a record of the order and to make the transfer when there are funds in the account .


The applicant is currently serving a sentence of life imprisonment in FAC .

On DATE , PERSON was murdered in the flat he had shared with the applicant for DATE . He had been clubbed over the head with what was probably a hammerhead in a sock and possibly another weapon . The applicant was arrested and charged with murder on DATE .

On DATE , the applicant was tried for the murder of PERSON , the issue for the jury being whether it was the applicant who was responsible for the murder . He was convicted on DATE and on CARDINAL DATE appealed against the conviction . On DATE , the conviction was quashed by ORG on the basis that the judge had misdirected the jury . A retrial was ordered which took place DATE and CARDINAL DATE , when the jury was unable to reach a verdict and was discharged .

The ORG elected to proceed with a second retrial which began on DATE . At the outset counsel had unsuccessfully submitted that it was oppressive and an abuse of process to try the applicant again , after CARDINAL unsuccessful trials . During the trial the applicant dispensed with the services of his counsel and solicitor and proceeded to defend himself , with assistance from a new solicitor . There came a point where he no longer felt able to do so and requested an adjournment . On DATE , the jury was duly discharged , and a further retrial began on DATE . The applicant did not give evidence at that trial . On DATE , he was convicted , by a majority of CARDINAL , and was sentenced to life imprisonment .

At each of the trials the ORG 's case was essentially the same , except that a witness called GPE , to whom the applicant allegedly made a confession whilst they shared a prison cell , was not relied upon after the first trial , the ORG being of the view that they were not able to present him as a witness of truth . In addition , from the CARDINAL prosecution witnesses called to give evidence at the first trial , CARDINAL were later called .

On DATE , the applicant appealed against the conviction . He argued inter alia that the second retrial ( in DATE ) was an abuse of process , in that it flouted the convention in LANGUAGE law that if the prosecution has failed to secure a conviction on two occasions it does not then seek a further trial . Although the circumstances were different from those usually relied upon ( namely the failure of the jury to reach a verdict on QUANTITY occasions ) , it was argued on the applicant 's behalf that the first conviction was found not to be safe and so could not be relied upon and on the second occasion the jury could not agree . The discharge of the jury in DATE should have been the end of the matter .

On DATE , ORG found that there was no reason to conclude that the practice was applicable in the particular circumstances of the applicant 's case . The court noted that there was a practice but not a rule of law for the prosecution not to offer evidence where CARDINAL juries have disagreed and found no general principle existed barring further retrial where the prosecution had failed twice to secure a conviction . It said :

“ CARDINAL . ... Where a serious crime has been committed and it is shown that there is a case to answer as far as a defendant is concerned , there is a clear public interest in having a jury decide positively CARDINAL way or another , whether that case is established .

Having said that , we recognise the possibility that in any given case a time may come when it would be an abuse of process for the prosecution to try again . Whether that situation arises must depend on the facts of the case which include , first , the overall period of delay and the reasons for the delay ; second , the results of previous trials ; thirdly , the seriousness of the offence or offences under consideration ; and fourthly , possibly , the extent to which the case now to be met has changed from that which was considered in previous trials .

Here the prosecution case did change in that reliance ceased to be placed on the evidence of a man called GPE , a prisoner who had given evidence in the first trial as to what had allegedly been said by the [ applicant ] . But the changes in the prosecution case can not , in our judgment , have rendered it impossible for the [ applicant ] to have a fair trial . The reality was he no longer had to face evidence which was adduced in the previous trial as to what he himself had said when attempting to deal with the evidence of GPE . ...

... For the reasons we have given we are satisfied that the abuse of process argument was rightly rejected here . ”

ORG refused leave to appeal to ORG , but certified CARDINAL questions of law of general public importance , namely ,

“ CARDINAL . Whether a defendant having been tried twice without a safe verdict being returned it is oppressive to try him a third time and hence an abuse of the court 's process .

Whether it is oppressive for the ORG to depart from its established practice of not trying a defendant for a third time , absent compelling fresh evidence or conduct by the defendant causing the retrials . ”

On DATE , ORG refused the petition for leave .