András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

NORP The applicant , PERSON , is an NORP national , who was born in DATE and lives in PERSON . She was represented before the Court by PERSON , a lawyer practising in GPE .

On DATE the competent authority rejected the applicant ’s request to be granted a disability pension ( Invalidenrente ) .

On DATE the applicant lodged a complaint in which she requested that the decision of DATE be quashed and that she be granted a disability pension . On CARDINAL DATE ORG of the GPE of Bern rejected her complaint .

On DATE the applicant ’s counsel informed the applicant that she would not lodge an appeal with ORG . She referred to a conversation with the applicant ’s daughter in this respect .

On DATE the applicant , who had been unable to find new counsel before the expiry of the time - limit for a complaint to ORG on DATE , personally lodged her complaint with ORG . In her complaint she requested ORG to quash the judgment given by ORG on DATE . She submitted that the relevant amount in dispute had been attained as the case concerned social benefits ( ORG ) to be granted retroactively as from DATE . She further submitted that ORG had failed correctly to assess the available evidence .

On DATE ORG refused to accept the applicant ’s complaint for adjudication as being inadmissible . ORG observed that under LAW on ORG ( see paragraph CARDINAL , below ) the legal petition had to contain the request for relief . Relying on its own case - law , ORG further recalled that it was , as a rule , not sufficient to request the impugned decision to be quashed , but that the petition had to contain a request on the merits ( materieller Antrag ) . This request for relief could also be contained in the reasoning of the petition .

ORG considered that the applicant ’s request to quash ORG judgment was insufficient , as it did not contain a statement as to how the court should decide on the merits . ORG further considered that the reasoning submitted by the applicant did not contain a sufficient request on the merits . The applicant had completely failed to submit which sort of benefits she claimed ( e.g. medical or professional rehabilitation measures , disability pension , respectively the starting point and the amount of pension rights claimed ) . There was no room for setting an appropriate time - limit , as this was only permitted under the circumstances enumerated in LAW and CARDINAL of LAW on ORG , which did not apply to the instant case of clearly insufficient reasoning of the petition .

Article CARDINAL of LAW on ORG ( Bundesgesetz über das Bundesgericht ) , in so far as relevant , reads as follows :

“ ( CARDINAL ) Legal petitions have to be submitted in CARDINAL of the official languages and have to contain the request for relief , the reasons therefore , together with a list of evidence and the signature .

( CARDINAL ) The reasons have to contain succinct submissions as to why the impugned act is against the law ...

( CARDINAL ) In case of lack of the party ’s or its representative ’s signature , of the power of attorney or of the required enclosures or in case representation is not permitted , [ ORG ] sets an appropriate time - limit for amendment together with the warning that the petition will otherwise not be taken into account .

( CARDINAL ) Illegible , inappropriate , incomprehensible [ and ] excessively extensive petitions and [ petitions ] which are not submitted in an official language may be rejected for amendment in the same way .


Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 13

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants are :

( CARDINAL ) PERSON , born in DATE ;

( CARDINAL ) Mr PERSON , born in DATE ;

( CARDINAL ) Mr PERSON , born in DATE ; and

( CARDINAL ) PERSON , born in DATE .

On DATE the third applicant died . His son Mr PERSON , born in DATE , provided a letter of authority expressing his intention to continue the application in his name . For the sake of convenience , he will hereinafter be referred to as “ the fifth applicant ” .

The applicants live in PERSON , ORG district , GPE .

The first , third , fourth and fifth applicants belong to the same extended family . The third applicant was the father of PERSON ( also spelled ORG PERSON , born in DATE ; PERSON , born in DATE ; and ORG , born in DATE . His son , the fifth applicant , is the brother of PERSON , PERSON and PERSON . The first applicant is PERSON Israilov ’s wife . The fourth applicant is PERSON wife .

The second applicant is the father of Aslanbek ( also spelled PERSON ) PERSON , born in DATE .

In DATE military operations by the NORP military and security forces started in GPE . According to the applicants , the village of PERSON in the Urus - Martan district came under full control of the NORP military forces in DATE . A military unit was stationed at the outskirts of the village , the state authorities were functioning and there were no clashes in the area . For these reasons the residents had considered that their lives were no longer endangered by the hostilities .

In TIME DATE the village came under fire by automatic weapons from the position of the NORP forces QUANTITY away from the edge of the village . The residents were aware that a large group of NORP fighters had entered the village from the direction of ORG and many had taken shelter in the basements of their houses .

In TIME on DATE CARDINAL military helicopters fired missiles upon the village . The village then came under shelling by artillery and from planes .

The first , third and fourth applicants live at DATE FAC in GPE in a large residential compound comprised of several houses . CARDINAL house belonged to the third applicant and another one belonged to his elder son , the fifth applicant . A large number of neighbours and relatives took shelter in their compound . According to them , there were CARDINAL people in the basement of CARDINAL of the houses .

The second applicant lives at FAC . On DATE he , together with his son PERSON , was also taking shelter in the basement of the first applicant ’s house .

At TIME on DATE the shelling stopped . CARDINAL of the men looked into the courtyard and saw a group of military servicemen . The soldiers ordered everyone to come out and lined up the men , women and children in the courtyard .

After the residents came out , CARDINAL serviceman threw a hand - grenade into the basement of the third applicant ’s house . The explosion damaged the house .

The servicemen , who behaved in an aggressive manner , took aside CARDINAL young men : the third applicant ’s CARDINAL sons PERSON , PERSON and PERSON , and PERSON , the second applicant ’s son . The third applicant approached the group because he feared for his sons . The military servicemen told him that they would check whether the young men had participated in illegal armed groups .

The servicemen then ordered some of the residents to descend into the basement of a house situated further down in FAC . Others remained in the courtyard .

The fifth applicant also remained in the courtyard . He and other witnesses saw that the servicemen had checked the passports of the CARDINAL young men , examined their torsos in order to see if they had signs of wearing weapons and then allowed them to get dressed .

At that time , there was an exchange of gunfire from the neighbouring house at CARDINAL FAC . A tank and an armoured personnel carrier drove up to that house . The residents later learned that a fighter had taken shelter in the basement of that house and had shot at a NORP soldier and killed him . He was shot dead in response .

The military servicemen separated the men , including the fifth applicant , from the remaining group of residents and led them away towards FAC . The CARDINAL young men remained in the courtyard of the first applicant ’s house , under the guard of military servicemen . Before leaving , the fifth applicant saw his CARDINAL brothers and PERSON being escorted into the courtyard at CARDINAL FAC where the exchange of gunfire had taken place . In the meantime , the second and third applicants joined the group of women and children who remained in the third applicant ’s courtyard . The military assured them that their sons would be released after a check .

TIME the people in the courtyard , including the first , third and fourth applicants , heard shots fired in the courtyard of the house at CARDINAL FAC . TIME the military ordered the residents to go into the fifth applicant ’s house and wait there .

In the meantime , the group of men who had been taken to FAC had been examined , CARDINAL by CARDINAL , by the military servicemen . The servicemen had led away CARDINAL brothers from the PERSON family and another young man , who were later found shot .

The fifth applicant was released after the check and returned to his house . The military ordered him to join the other residents inside the house .

Sometime later the soldiers left the village . The second applicant went home but did not find his son , PERSON , there .

The fifth applicant went into the courtyard at CARDINAL FAC . There he saw the CARDINAL bodies of the young men who had been led away by the soldiers . Under the fence - roof ( a roof covering part of the courtyard ) there were the bodies of PERSON and PERSON , and further back in the courtyard , face down , PERSON and PERSON . The bodies had gunshot wounds . The bodies of PERSON and PERSON also had knife wounds to the back , in the heart area .

The fifth body found in the same courtyard was probably that of the fighter who had been killed there earlier .

The applicants submitted written statements about the events produced by the first , second , fourth and fifth applicants , as well as by CARDINAL neighbours , I. A. and PERSON . NORP

The Government did not challenge the facts as presented by the applicants .

Despite a specific request by ORG , the Government did not disclose any documents from criminal case no . DATE which had been opened in relation to the matter . The ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , because the file contained personal data concerning the participants in the criminal proceedings . They outlined a number of investigative measures taken so far . The parties’ submissions in this respect could be summarised as follows .

The applicants stated that on DATE a group of officials from the Urus - Martan district prosecutor ’s office ( “ the district prosecutor ’s office ” ) and district temporary ORG ( ORG ) arrived in PERSON . They questioned several witnesses , examined the site of the shooting and drew up a plan . It also appears that they photographed the bodies .

On DATE , DATE , the CARDINAL bodies were buried in the local cemetery .

DATE an investigator from the district prosecutor ’s office informed the applicants during a meeting in PERSON that a criminal investigation had been opened by that office under LAW ( murder ) . Despite this information , it appears that the criminal investigation was opened only in DATE ( see below ) .

On DATE the Urus - Martan district civil registration office issued death certificates for the CARDINAL men . The date of death was recorded as DATE for all , but the cause of death was noted only for PERSON - numerous gunshot wounds to the head .

On DATE an investigator of ORG opened a criminal investigation under LAW into the deaths of the CARDINAL PERSON brothers , PERSON and the unidentified member of the illegal armed group ( “ the ORG ” ) . According to the Government , this action was prompted by a letter of the deputy Minister of ORG , and prior to that date the applicants had not submitted any complaints to the authorities .

On DATE the file was forwarded for investigation to the district prosecutor ’s office and assigned number CARDINAL . The decision contained the following passage :

“ On DATE in PERSON ... servicemen of the federal forces carried out a special operation with the aim of identifying members of illegal armed groups . At that time [ the following ] residents of the village , brothers PERSON , GPE and PERSON , PERSON , and an unidentified member of the ORG stayed in a dugout shelter in the PERSON house . In the course of the special operation the member of the ORG committed the murder of a military serviceman , after which the above - mentioned member of the ORG , ORG , PERSON and PERSON and PERSON were killed ” .

The Government submitted that on an unidentified date the investigation had established the number of the military unit which had taken part in the operation in PERSON and had obtained information CARDINAL servicemen of that unit who had been killed on DATE .

On DATE the second applicant was granted victim status in the criminal investigation concerning the murder of his son . On DATE the fifth applicant was granted victim status . According to the Government , both men had been questioned on DATE . They had confirmed the circumstances of their relatives’ deaths , as summarised above .

The Government further submitted that on DATE the investigator had examined the residential compound of the PERSON family and GPE ’s neighbouring compound where the bodies had been found . Nothing of relevance to the investigation had been found .

The Government submitted that on DATE another ORG brother and PERSON mother had been questioned and had given similar testimonies . The investigator had also collected the clothes which the murdered men had been wearing on DATE from the family . It appears from the submitted documents that the jackets were returned to the applicants DATE but it is unclear if any reports or other steps were taken at that time .

On DATE the investigation was adjourned due to its failure to identify the culprits . The applicants submit that they had only been informed of this decision in DATE when they applied to the district prosecutor ’s office for information while collecting documents required in order to obtain compensation for the deaths of their relatives .

On DATE the second applicant asked the district prosecutor ’s office to inform him as to whether a criminal investigation into the murder of his son and the CARDINAL PERSON brothers by the servicemen had been pending and , if so , who had been in charge of the investigation .

On DATE the second applicant lodged a request with the district prosecutor ’s office that he be granted the status of a civil claimant in the criminal proceedings related to the killing of his son by the military servicemen . It does not appear that any answer has been given to the CARDINAL aforementioned letters .

On DATE , having learnt of the decision to suspend the investigation , the second applicant wrote to the district prosecutor ’s office . He described in detail the events of DATE and asked that the investigation be resumed . In particular , he requested that the serviceman who had been killed on DATE be identified and the number of the military unit which had been involved in the operation be disclosed , in order to identify and question the servicemen who had killed the CARDINAL men and to question the other witnesses of the crime . He also asked the district prosecutor ’s office to transfer the investigation to the military prosecutor ’s office .

Per the ORG ’s observations , the investigation had been resumed at some point after that . On DATE the investigator had again questioned the fifth applicant . On DATE the investigator had collected a statement from the head of the village administration , who had confirmed that the CARDINAL men had been killed on DATE during a security operation .

According to the ORG , DATE and DATE the investigator had questioned CARDINAL relatives of the dead men , including the second and fourth applicant . Their submissions had corroborated the statements previously obtained .

On DATE the first and fourth applicants wrote to the district prosecutor ’s office and asked to be granted victim status in the proceedings concerning the murder of their husbands .

On DATE the first and fourth applicants were granted the status of victims . The Government also submitted that on DATE the first applicant had been questioned . It appears that on DATE the investigation was adjourned .

Per the ORG ’s observations , the next round of investigation had started in DATE . On DATE the investigator had requested that the commander of the military unit submit a copy of the internal inquiry into the deaths of their CARDINAL servicemen in PERSON on DATE , as well as copies of forensic reports . According to the Government , this request had been complied with . However , they did not disclose the content or the conclusions of the relevant documents .

DATE . On DATE the investigation questioned a further CARDINAL witnesses among local residents , including the second and fifth applicants .

On DATE the investigator again collected the jackets of the murdered men from the fifth applicant . On DATE these items were inspected and attached as pieces of evidence to the criminal investigation file . On DATE the investigation was again adjourned .

A new round of investigation was opened on DATE . Per the ORG ’s submissions , between DATE and DATE the investigation had collected statements from CARDINAL relatives and neighbours of the dead men , including the applicants . The first applicant had given her consent to the exhumation of her husband ’s body .

On DATE the investigator refused to allow the second and fourth applicants to make copies of all the witness statements collected by the investigation . They were allowed to make copies of the decisions to adjourn proceedings .

On DATE the first and fourth applicants again requested that the district prosecutor ’s office identify and question the servicemen and commanders of the military units which had taken part in the special operation .

According to the ORG , the graves of the PERSON brothers and of PERSON had been inspected on DATE .

The Government further submitted that the progress of the investigation had been supervised by ORG . According to the Government , the applicants had been duly informed of all decisions taken during the investigation .

On DATE the first and the fourth applicants complained to the district prosecutor ’s office of its failure to effectively investigate the murder of their husbands . They also asked to be granted access to the case file .

On DATE the first and fourth applicants applied to ORG ( “ the district court ” ) , complaining that the district prosecutor ’s office had failed to investigate the murder of PERSON , PERSON and PERSON and PERSON effectively and had failed to provide a response to their previous complaints . They again asked to be granted access to the case file .

On DATE the district court partially allowed the complaint against the district prosecutor ’s office based on the latter ’s failure to take effective steps to investigate the applicants’ relatives’ murder . The district court ordered the district prosecutor ’s office to resume the investigation . The district court noted that the investigators had failed to identify the military and security units responsible for the operation , had failed to question the commanders of and participants in the operation and to study the documents related to its execution and results , and had failed to question the commanders of the district military and security authorities about the operation . The court granted the applicants access to the case file , stating that the documents in the file were accessible unless they contained secret information and noted that access to the file was essential in order to realise the applicant ’s right to appeal . As to copying of documents from the case file , the court noted that this right was accorded to victims only upon completion of the investigation , and not when the proceedings were adjourned . On DATE ORG upheld the district court ’s decision .

On DATE the first and fourth applicants seized the district court with a similar complaint . They noted that the investigation was again adjourned without the necessary steps having been taken . On DATE the deputy district prosecutor announced in court that the investigation had been reopened by the district prosecutor ’s office on DATE in order that it be completed . In such circumstances , the district court found that the ORG complaint had been resolved and dismissed it .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .


The applicant , PERSON , is a GPE national , who was born on DATE and lives in PERSON , GPE .

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

The applicant applied to ORG for a retirement pension , but was informed , by a letter dated DATE , that the ORG would not consider his claim until DATE before his CARDINAL birthday . At present , women in GPE become eligible for a State pension at DATE , whereas men are not eligible until CARDINAL .

In their ORG , the ORG submitted that the applicant received a total of GBP CARDINAL per week in ORG benefits , including income support , disability living allowance and invalid care allowance . They claimed that the applicant would be in an identical financial position if he were a woman , the only difference being that part of the money paid to him by the ORG would be paid in the form of retirement pension rather than income support .

The applicant has not denied the ORG ’s account of his income . He claims , however , that if he were in receipt of ORG pension he would in addition be entitled to other financial benefits , such as a bus pass and discounts in shops , restaurants and hairdressers .


Exception préliminaire rejetée (non-épuisement des voies de recours internes);Violation de l'art. 5;Violation de l'art. 3;Préjudice moral - réparation

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Paul Martens;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively .

The first applicant arrived in GPE at FAC on flight SN CARDINAL from GPE ( Sierra Leone ) on DATE , carrying a NORP travel document stating that he was a NORP refugee . He was refused entry to GPE as he did not have the necessary visas . The carrier which had provided the flight was informed that , pursuant to section CARDINAL(CARDINAL ) of the Aliens ( Entry , Residence , Settlement and LAW of DATE , it was responsible for paying the costs of his return to his country of origin .

On DATE first applicant requested recognition of his refugee status , maintaining that his life was in danger in GPE , and was issued with a document certifying that he had applied for asylum .

Also on DATE , DATE , a decision to keep the first applicant in a designated place at the border was taken on the basis of section CARDINAL/CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE . Pursuant to that decision , the first applicant was taken to ORG no . CARDINAL on the LOC of FAC .

A decision refusing asylum was taken on DATE by ORG and served on the first applicant on DATE . The first applicant lodged an appeal with ORG .

On DATE the Commissioner ORG upheld the decision refusing asylum ; it pointed out the inconsistencies between the various accounts given by the applicant in question and concluded that on the evidence he had no reason to fear that he was in personal danger in GPE .

An application for judicial review of the decision of DATE of the Commissioner ORG and an application to stay its execution were lodged with the ORG d'Etat on DATE . At the hearing before the ORG , the parties explained that those applications were declared inadmissible in DATE on the ground that the first applicant was no longer on NORP territory and the continued examination of his case was thus devoid of purpose .

This applicant arrived in GPE at FAC on a flight from GPE on DATE at TIME As he did not have a transit visa allowing him to travel TIME to GPE , steps were taken to refuse him entry to NORP territory and the carrier which had provided the flight was requested to take him , or have him taken , back to the country of origin or to another State where he could be allowed entry . The second applicant was rerouted to GPE , via GPE .

When he underwent a check in the transit zone on DATE applicant stated that he did not wish to go to GPE and requested recognition of his refugee status , maintaining that his life was in danger in GPE . He was issued with a document certifying that he had applied for asylum .

Also on DATE , DATE , a decision to keep the second applicant in a designated place at the border was taken on the basis of section CARDINAL/CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE . Pursuant to that decision , the second applicant was taken to ORG no . CARDINAL .

A decision refusing the application for asylum was taken by ORG on DATE . That decision was served on DATE on the second applicant , who lodged an appeal with ORG .

On DATE the Commissioner ORG upheld the decision refusing asylum , as it was not familiar with the NORP organisation to which the second applicant claimed to belong . An application for judicial review and an application for a stay of execution were also lodged with the PERSON d'Etat on DATE . Like the applications lodged by the first applicant , these applications were dismissed in DATE as they had become devoid of purpose .

The first applicant remained in FAC no . CARDINAL from DATE pursuant to the decision to keep him in a designated place at the border ( see above ) . The second applicant remained there , on the same basis , from DATE .

Following an attempted collective break - out from ORG no . CARDINAL during TIME DATE to DATE , the CARDINAL applicants and CARDINAL of their compatriots were transferred on DATE to ORG in PERSON ( the Government explained that this institution was , by a legal fiction , treated as a centre at the border ) .

NORP In DATE their lawyer lodged an application for release on behalf of each of them before the chambre du conseil of ORG , by registered letter posted on DATE . The chambre du conseil allowed that application by an order of DATE , being of the view that the grounds put forward by the administrative authorities to justify the deprivation of liberty were not sufficient .

On DATE on which that order was made , ORG notified ORG , by means of a form , that it had decided to lodge an appeal , which it did on DATE . On account of that appeal , the applicants remained in the closed centre , and any procedures for their repatriation were suspended pending the judgment of ORG .

On DATE the authorities arranged for both applicants to be booked on a flight to GPE on DATE .

By a judgment of DATE ORG upheld the order made on DATE for the first applicant 's release , being of the view that the detention order did not contain “ sufficient reasons in concreto ” .

Following that judgment , ORG at ORG ordered the first applicant 's immediate release . As a result of that decision , ORG had him transferred to the transit zone at FAC ( see below ) .

On DATE a similar judgment was delivered in respect of the second applicant . On DATE ORG and ORG took decisions identical to those taken in respect of the first applicant , whom the first applicant rejoined in the transit zone at FAC on DATE .

On DATE the first applicant , as explained below ( see paragraph CARDINAL ) , was placed in the transit zone in FAC . He was taken there at TIME , together with ORG . , another NORP national who had arrived in GPE on DATE in the same circumstances as the first applicant .

They were informed that they were being released , their luggage was returned to them and they were each given an envelope containing their personal possessions , with the exception of their passports , which remained in the possession of the federal police at the airport , and were allowed to make a telephone call to a person of their choice . They stated that they wished to telephone their lawyer .

On DATE at TIME they went to the federal police border inspection post and declared that they had no money or food . They were told that they could go on a voluntary basis to the “ FAC ” at the airport and remain there pending their removal . They were taken to that centre , where the first applicant signed a statement , after the content thereof had been translated for him , agreeing to remain voluntarily at the centre and to observe its rules . According to a document from the centre , the first applicant arrived there on DATE and left on DATE ; in fact , an unsuccessful attempt to remove the applicant to PERSON was made on DATE , but he refused to board the aeroplane . Following his refusal to board , he was taken back to the transit zone .

Also on DATE , the lawyer acting for the first applicant and ORG . wrote to the Minister for the ORG , claiming that her clients had suffered degrading treatment by having to spend DATE in the transit zone without food or drink . She explained that TIME after arriving in the “ FAC ” they had simply been returned to the transit zone and told to fend for themselves in order to obtain food , drink and a return ticket .

On DATE , DATE , at TIME the first applicant and ORG . were joined in the transit zone by the second applicant ( see paragraph CARDINAL above ) . Upon being transferred there he was given the same explanations as the CARDINAL others and stated that he was “ no longer happy with that decision ” and wished to contact his lawyer . He also stated that he had no money and had only a telephone card . He again asked where the “ other men ” were .

On DATE the applicants ' counsel applied under the extremely urgent procedure to the President of ORG , who dismissed the application on DATE on the ground that the applicants did not have a personal right of access to the territory , as such a right was not conferred either by the submission of an application for asylum or by the orders for their release .

In the meantime a fresh attempt to remove the CARDINAL persons to GPE had been made on DATE . A further attempt to remove CARDINAL of them was made on DATE . The first applicant refused to board the plane but ORG . did board it .

On DATE the applicants ' counsel lodged an application to shorten the period of notice of a hearing , arguing that keeping her clients in the transit zone constituted an illegal act that infringed their right to liberty , a right confirmed by the decisions delivered in respect of their detention in the transit centre . She further maintained that keeping them in the transit zone constituted a violation of Articles CARDINAL and CARDINAL of the Convention . By an order of DATE the President of ORG granted leave to summon ORG to appear at a hearing on DATE .

On DATE the applicants summoned ORG , represented by the Minister for the ORG , to appear before the President of ORG , sitting as the urgent applications judge , for the purpose of securing an order for the ORG to allow them to enter NORP territory , together with a penalty of MONEY ( ORG ) per TIME from notification of the order in the event of failure to comply . The applicants submitted that by keeping them in a closed space , despite the fact that the chambre du conseil of ORG had ordered their release , the ORG was in breach of the domestic and international provisions guaranteeing the right of personal liberty . In addition , they were completely destitute , without lodging or resources and left to their own devices in the transit zone , where they had no proper facilities and for DATE had had neither food nor drink , which constituted inhuman and degrading treatment . They further submitted that some members of the federal police had violently struck and beaten them inside the NORP place of worship in the transit zone .

On DATE the authorities arranged for the applicants to be booked on a flight to GPE on DATE .

In submissions filed with the President of ORG , counsel for the ORG objected , in particular , that the applicants had not applied for judicial review of the decisions of the Commissioner ORG or for a stay of their execution .

By an order of CARDINAL DATE the President of ORG Instance ordered the ORG to allow the applicants to leave the transit zone freely and without restriction , with a penalty of ORG TIME with effect from notification of the order in the event of failure to comply .

The decision delivered in the context of application no . CARDINAL reads as follows :

“ It is common ground that the applicant is at present subject to a decision of DATE to remove him from national territory , upheld on DATE .

The time - limit for bringing an action for a stay of execution and for judicial review does not have suspensive effect ; nor does the application for regularisation under section CARDINAL(CARDINAL ) of the LAW of DATE which the applicant submitted on DATE .

As the applicant 's administrative status is binding on the court , it must take note of the fact that the applicant is therefore not entitled to remain on NORP territory .

Nonetheless , the decision of ORG is also binding on the court and in the present case , that division ordered the applicant 's immediate release .

It is also common ground that ORG was aware of the applicant 's administrative status and in particular of the decision of the CGRA and therefore ordered his release with full knowledge of the facts .

It is not for this court to adjudicate on that status but , rather , on the way in which that decision to release the applicant is implemented by ORG , all other things being equal .

The defendant maintains that , in view of the fact that the applicant has not been authorised to enter national territory as such , it was correct to take the view that the applicant 's release should be effected in the transit zone , since that zone is not an area where the law does not apply but is in fact part of the GPE for persons in transit in GPE and those who have not yet been authorised to enter the national territory as such .

ORG has held that ' as regards the access , residence , establishment and removal of aliens , it does not follow from the legal distinction between the port area and the rest of the territory of the GPE that the transit zone is not part of the GPE and that the law referred to does not apply there ' ( Court of Cassation , DATE , Pas . DATE , CARDINAL ) .

The closed centres are in reality nothing more than extensions of the transit zones , antechambers to the territory of the GPE , the only difference being that , unlike the transit zone , they are designed to be capable of accommodating persons for a more or less long period in what are assumed to be decent conditions .

While the defendant 's reasoning can therefore be followed in so far as it considers that by being present in the transit zone the applicant was in fact on NORP territory , that reasoning can not be followed where it considers that such presence amounts to ' release ' .

It can not be accepted that the legislature , by creating centres at the borders , specially equipped to accommodate persons who are being held pending leave to enter the GPE or pending deportation , and by providing that persons held in those centres have a right of appeal to the chambre du conseil , took the view that if their release was ordered by the chambre du conseil and then by ORG , those persons could be sent to the transit zone , which is wholly unequipped to receive them , since this would place them in an even more precarious and adverse situation .

If release limited to the transit centre were to be accepted , that would amount to allowing the NORP State unilaterally to block a court decision ordering release on the basis of a person 's administrative status , when that administrative status had been taken into consideration by that court and must have constituted a ground of its decision ordering release .

Since DATE the parties have both known that the removal order is enforceable , since the applicant 's appeal to the CGRA was rejected and no urgent application for a stay of its execution was made .

Since then the applicant has shown no intention of complying voluntarily with the removal order .

Nor has ORG forcibly removed him since then .

Since the ORG is now required to comply with the decision ordering the applicant 's release , there are CARDINAL possibilities : either the defendant prefers to wait until the applicant decides to leave voluntarily , but in that case , while awaiting his departure , the ORG must allow him to move freely within the territory ( in observance of res judicata ) , or the defendant assumes its responsibilities and provides itself with the means to enforce the order for the applicant 's return in order to ensure compliance with its own administrative decisions .

In that regard , the PERSON allows ORG to order the alien in question to reside in a specified place pending implementation of the order for his removal ( section QUANTITY of DATE ) .

What is unacceptable and contrary to the rule of law in the present case is that the NORP State should place the applicant in another closed place ( the transit zone ) in which the living conditions are inhuman and degrading , in the hope that the applicant will then decide to implement the removal order ' voluntarily ' .

In transferring the applicant from the closed centre at NORP to the transit zone , ORG committed an illegal act .

On the basis of the file as it currently stands , the release ordered by ORG necessarily means that , until such time as he is removed , the applicant is free to leave the transit zone , without prejudice to the ORG 's right to order the applicant to reside in a specific place ( section CARDINAL ) .

That solution to a wholly contradictory situation is the CARDINAL possible if the procedure under section CARDINAL of the Act of DATE is not to be reduced to a farce .

In the light of the foregoing , the application must be allowed in accordance with the operative part of the present order . ”

The decision delivered in connection with application no . CARDINAL is based on the same reasoning .

The applicants ' lawyer sent that decision by fax on DATE to ORG , which cancelled the booking made for the flight on DATE . On DATE the ORG was instructed to allow the applicants to leave the transit zone , without restriction .

The orders of CARDINAL DATE were served on ORG , by bailiff , first on DATE to the office of the Minister of ORG ; the order made in favour of the first applicant was served for a second time , on DATE , on the federal police border inspection post at FAC .

Both applicants left the transit zone on DATE , in the late morning ; the precise time was not stated .

The parties differed as to the situation which the CARDINAL applicants encountered in the transit zone .

The applicants stated that the transit zone had no bedrooms and , a fortiori , no beds , and that they were housed in the mosque located there . They were taken in by the NORP counsellor , who took them in again after the various attempts to remove them . They remained for DATE without food or drink , receiving food only irregularly from the cleaning staff , the company running the airport , the NORP counsellor or the lay counsellor at the airport . The CARDINAL counsellors explained in their testimony that the applicants ' situation was unbearable , mentioning that they had been abandoned or “ deserted ” by the authorities . The applicants were unable to wash themselves or to launder their clothes . They were often checked by the airport police ; on several occasions they were placed in a cell and left there for TIME without food or drink , in an attempt to force them to agree to leave the country voluntarily , then taken back to the transit zone . They were also violently struck and beaten inside the mosque by certain members of the federal police .

The Government submitted that , following the criticisms in a report by ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( “ the ORG ” ) in DATE , the situation in the transit zone at FAC had been remedied by , inter alia , setting up the “ FAC ” on the airport LOC . The centre was able to take in , on a voluntary basis , persons staying in the transit zone and provide them with bed and board . In its DATE report on its visit to GPE , the ORG observed that the material conditions and the activities offered in the “ FAC ” could generally be described as satisfactory for a stay of not DATE , with just CARDINAL exception ( the lack of provision for those staying in the centre to enjoy fresh air ) . In addition , persons in the transit zone awaiting a reservation on a flight for the purpose of their removal were able to receive meals via the control services . A federal police circular of CARDINAL DATE confirmed that practice and reminded the various services of their obligations in that regard . It was apparent from that circular that the team dealing with the case of a particular alien was responsible for distributing meals to him or her and that upon arriving in the transit zone aliens were informed that they could go to the “ arrivals ” level CARDINAL times a day to be given a meal . The team responsible ordered CARDINAL meals per person per day at the “ FAC . Although that procedure had been properly confirmed only by the circular of DATE , the fact nonetheless remained that the first applicant had been informed on DATE that he could be housed and fed on a voluntary basis in the “ FAC .

On DATE at TIME the applicants , after leaving the transit zone , were subjected to an identity check by officials of the federal police responsible for border control . After finding that the applicants were not in possession of a valid residence permit , the police drew up an administrative report for each of them . The reports stated that the applicants were travelling together and that they spoke LANGUAGE in addition to their mother tongue . The police contacted ORG at TIME and were instructed to detain the applicants so that they could be served with an order to leave the territory together with a decision ordering their removal and a decision ordering their detention for that purpose . A decision to that effect was served on them on DATE , at an unspecified time , by an officer from ORG . Both applicants refused to sign .

The first applicant was informed of those measures and was told that , with a view to their implementation , he was being taken to the PERSON centre for illegal aliens . He stated that he objected , on the advice of his counsel . During the journey to PERSON this applicant complained that the handcuffs placed on him were too tight around his wrists . The journey was interrupted at TIME so that the handcuffs could be loosened .

The second applicant was informed of those measures and told that he would be taken to the centre for illegal aliens and he too stated that he objected , on the advice of his counsel , and resisted the police who were putting him in the van being used to transfer the CARDINAL applicants . TIME after the van was closed , it was noted that , although he was handcuffed , the second applicant had intentionally injured himself by banging his head against the van window , which was protected by a grille . It was then decided to take him to PERSON in a police vehicle and ORG bands were placed round his arms and legs to prevent any mutilation . According to the report drawn up on that occasion , the applicant told the members of the escort that he would use his self - inflicted injuries as evidence to support a complaint against the police . Upon arriving at PERSON he was examined by the doctor at the centre , who noted the presence of external injuries , namely a bruise and a small wound ( “ klein wondje ” ) on his forehead .

On DATE the lawyer representing the CARDINAL applicants wrote to the Minister for the ORG to complain about his clients being placed in a closed centre in spite of the orders made on DATE . On DATE he had lodged an application with the PERSON d'Etat for judicial review of the decision of DATE of the Commissioner ORG and an application for a stay of its execution ( see above ) .

On DATE , measures were taken to remove the first applicant to GPE , but the order for his repatriation was subsequently set aside . On DATE ORG instructed ORG to make arrangements for his removal as soon as possible . His repatriation was rearranged for DATE .

DATE . On DATE the first applicant left PERSON and his personal effects , his luggage and the sums of LAW , MONEY ( ORG ) and QUANTITY which he had been carrying on his arrival were returned to him . He had previously been informed of the repatriation procedure that would be followed and of the measures of physical restraint that might be taken . Following a discussion , he stated that he no longer objected to being repatriated , but expressed the wish that certain conditions should be observed . He asked , in particular , that he should not be handcuffed and that he should carry his passport . He was told that those conditions could not be met , in view of the circumstances .

The applicant was repatriated on a flight to GPE , via GPE , escorted by CARDINAL police officers . The first applicant was placed in fabric handcuffs before being taken on board . The handcuffs were removed after take - off . During the flights and while waiting in the transit zone at FAC he was given food and drink . The members of the escort reported no incident .

On DATE , measures were taken to remove the second applicant to GPE , but the order for his repatriation was subsequently set aside .

The second applicant was repatriated on DATE . Upon his departure from PERSON , his personal effects , his luggage and a sum of LAW were returned to him . According to the report drawn up in connection with his removal , he arrived at the airport at TIME He was searched and placed in a cell . At TIME the officials in charge of his repatriation questioned him in order to determine the extent of his cooperation with the removal order . During that interview , he indicated that he had realised that he had to return to GPE . He allegedly added that he had not been happy with his situation for DATE and that he had the impression that he had been a pawn in a game between his lawyer and the ORG officials . He was allowed to telephone his family and contacted his sister , who was informed of the precise details of the flight and of the scheduled time of arrival . In order to prevent any attempt at resistance , the members of the escort decided , in view of the information in their possession and the circumstances of the transfer on DATE , to use measures of physical restraint . The applicant was wearing fabric handcuffs and had ORG around his ankles when he boarded the flight to GPE via GPE . The boarding of the plane , the flight and the transit passed without incident . The applicant was released from his restraints as soon as the plane reached cruising altitude and he was given food , drink and cigarettes during the journey . Upon his arrival in GPE his passport was returned to him . Members of his family were waiting for him there . The NORP consul in GPE was also present at the airport .


Remainder inadmissible;Violations of Art. 5-4;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

The applicant ’s GPE relationship ended in DATE . The applicant ’s mother was granted parental authority .

In DATE ORG ( PERSON ) investigated the applicant ’s situation because he had been displaying severe behavioural difficulties , had dropped out of school , had committed a number of offences and appeared disinclined to respect authority in any shape or form .

By a decision of DATE , the Juvenile Judge of ORG ( kinderrechter bij de rechtbank ) placed the applicant under the supervision ( ondertoezichtstelling ) of ORG ( PERSON – “ the ORG ” ) for DATE and also issued an authorisation to the ORG for the applicant ’s custodial placement in a confined institution for treatment ( gesloten uithuisplaatsing ) for DATE . On DATE the applicant was admitted to “ Het Poortje ” Juvenile Institution , a confined institution for treatment , in order to be observed and psychologically examined .

On DATE , DATE and DATE the Juvenile Judge extended the authorisation for the applicant ’s custodial placement in a confined institution . The last such extension was set to expire on DATE after the first decision .

On DATE the Juvenile Judge of ORG received the ORG ’s request ( dated DATE ) for a prolongation of the authorisation for the applicant ’s custodial placement for the duration of the supervision order . Reference was made to a report containing the results of an examination of the applicant ’s personality by a remedial educationalist / psychologist that had been issued on DATE .

On DATE a hearing was held before the Juvenile Judge . The applicant stated that he did not want to be placed in a confined institution for treatment and that his behaviour had improved . On behalf of the ORG it was submitted that the applicant had recently been placed at ORG , a confined orthopsychiatric institution for persons with severe behavioural difficulties , that the intended treatment would take CARDINAL to one and a half years , and that it was out of the question that the applicant would be able to live with his father or his grandmother as he had indicated he wished to do . The Juvenile Judge stated that the report on the applicant ’s personality was clear and that a relapse , which was considered to be a real possibility , had to be prevented at all costs . Treatment was necessary , also in view of his age , and he had already been admitted to PERSON .

On DATE the Juvenile Judge decided to extend the period of supervision for DATE , with effect from DATE , and to prolong the authorisation issued to the ORG for the applicant ’s custodial placement in a confined institution for treatment for the duration of the supervision order .

On DATE the applicant lodged an appeal with ORG against the decision of CARDINAL DATE , in so far as it concerned the custodial placement .

A hearing was held on DATE . At the hearing the applicant ’s counsel , emphasising that the case was not a particularly complicated CARDINAL , requested the applicant ’s immediate release as the case at issue had not been dealt with speedily within the meaning of LAW . After having deliberated on this matter , ORG considered that there appeared to be insufficient grounds to release the applicant immediately ; nevertheless , a decision would be rendered as soon as possible and at the latest on DATE .

On DATE ORG quashed the decision of CARDINAL DATE and extended until DATE , that is to say for DATE rather than DATE , the authorisation issued to the ORG for the applicant ’s custodial placement in a confined institution for treatment . In this connection the court ruled as follows :

“ CARDINAL . Having regard to the far - reaching character of [ the ] measure – involving as it does a deprivation of liberty DATE , it should not last longer than strictly necessary . On DATE [ the applicant ] was placed in a confined institution for observation and diagnosis and on DATE he was placed there for treatment . Having regard , inter alia , to the ... positive development in [ the applicant ’s ] behaviour and to the individual treatment meeting which will take place in DATE , the court perceives cause to extend the authorisation for [ the applicant ’s ] custodial placement in a confined setting for treatment until DATE . ”

As regards LAW of ORG held as follows :

“ CARDINAL . In answering the question whether the case was decided sufficiently speedily , the court is of the opinion that the nature of the custodial measure at issue , the duration of that measure and the relationship between the duration of the measure and the ( total ) time that has elapsed between the moment the appeal was lodged and the date on which the appeal was decided upon should also be taken into consideration .

In the present case a measure involving deprivation of liberty was imposed in the framework of a child protection measure .

The imposed ... measure consists of extending the authorisation for [ the applicant ’s ] custodial placement in a confined setting for a duration of DATE , with effect from DATE .

[ The applicant ] lodged an appeal against that decision on DATE .

In a letter of DATE , the court invited the ORG and [ the applicant ’s ] father and mother to file their submissions by DATE at the latest . It is to be noted , also in view of the custodial character of the measure , that these interested parties have been granted a shorter period of time within which to lodge observations than is customary in family - law cases . After all , pursuant to section CARDINAL of LAW for petition - based proceedings in family - law cases ( Uniform Reglement voor rekestprocedures in familiezaken ) the usual period within which observations are to be lodged is DATE .

Subsequently , by letters of CARDINAL DATE , the parties were summoned to appear at the court ’s hearing of DATE and the decision has been scheduled for DATE .

In view of the above - mentioned elements and the way they are related to each other , the court concludes that in the present case the decision can still be said to have been taken speedily within the meaning of LAW , and that this provision has therefore not been breached . ”

On DATE the applicant lodged an appeal on points of law ( beroep in cassatie ) with ORG ( PERSON ) . He complained explicitly of a breach of LAW in that ORG had been wrong to have had regard only to the period DATE , the date on which the appeal had been lodged , and DATE , the date of the decision . He argued that the court should have included the period from DATE to CARDINAL DATE during which time he had also been deprived of his liberty , as well as the fact that ( at that time ) he had been a minor below the age of DATE . He further claimed that the considerations of the Court of Appeal relating to the shorter time than usual for the submission of observations could not warrant the conclusion that the decision had been taken speedily , nor were they relevant in that context . The statement of points of appeal was lodged by a member of ORG bar , a lawyer practising in GPE .

On DATE an Advocate - General ( advocaat - generaal ) to ORG , acting as deputy to the Procurator General ( procureurgeneraal ) , submitted an advisory opinion . She considered that as the period for which the authorisation had been granted had in the meantime lapsed , the applicant no longer had an interest in the appeal and it therefore ought to be declared inadmissible in accordance with the established case - law of ORG . Nevertheless , with a view to developing the law , ORG addressed the merits of the appeal . Reference was made to the ORG ’s judgments and decision in the following cases : PERSON v. GPE ( DATE , Series A no . CARDINAL ) ; PERSON GPE ( DATE , Series A no . CARDINALA ) ; PERSON the GPE ( ( dec . ) , no . CARDINAL/CARDINAL , ORG CARDINALXV ) ; PERSON v. GPE ( DATE , Series A no . CARDINALB ) ; and LAW ( DATE , Series A no . CARDINAL ) . ORG noted that the period DATE , the date on which the appeal to ORG had been lodged , and the hearing before that court on DATE had already lasted DATE , and that a further DATE had elapsed until the decision of DATE . However , the entire procedure – from the first request for extension of the authorisation until the decision taken on appeal DATE had lasted from DATE to DATE , that is a period of DATE . As to other circumstances that had to be taken into consideration , such as the complexity of the case and the applicant ’s behaviour , the Advocate - General pointed out that the extension at issue was based on reports that had been issued before the start of the proceedings in question and that the only delay that could be attributed to the applicant concerned the time that had elapsed between the decision of the Juvenile Judge of DATE and the lodging of the appeal on DATE . ORG concluded that , in her opinion , the decision of ORG had not been taken speedily within the meaning of LAW .

The applicant , through counsel , submitted a written response to ORG advisory opinion on DATE . He argued that the lawfulness of the detention orders following on from the original order depended on the lawfulness of the original order . Furthermore , domestic law provided for an appeal to ORG in cases such as the present ; such an appeal could only be effective if ORG declared the applicant ’s appeal admissible and ruled on its merits .

By a final decision of CARDINAL DATE , ORG declared the applicant ’s appeal inadmissible for lack of interest , since the authorisation at issue had already lapsed in the meantime .

On DATE , shortly before DATE on which ORG order of DATE was due to expire ( CARDINAL DATE ) , the Juvenile Judge of ORG extended its validity for DATE . It was extended for a further DATE on DATE . The intention was to transfer the applicant to an open setting during this time .

On DATE the applicant was transferred to an open ( non - custodial ) unit within the PERSON institution . It appears that the applicant absconded from this unit CARDINAL times DATE .

On DATE the Juvenile Judge of ORG made a new supervision order and authorised the applicant to be placed in a custodial institution for a period of DATE , backdated to CARDINAL September CARDINAL . The applicant and his mother appealed on DATE and CARDINAL DATE respectively .

On DATE ORG , ruling on both appeals , shortened the placement order to DATE instead of CARDINAL on formal grounds . It dismissed an argument based on LAW , holding that the proceedings had been sufficiently speedy , and that in any event a finding of a violation of the requirement of “ speediness ” would not ipso jure have entitled the applicant to immediate release since that might well have gone against his own best interests .

It appears that the applicant remained in a secure institution until the time he reached his majority , which was in DATE .

Under LAW ( Burgerlijk Wetboek ) , the Juvenile Judge may , on the application of , inter alia , ORG , order a minor child ’s placement under the supervision of a family supervision agency ( gezinsvoogdij - instelling ) within the meaning of section CARDINAL of ORG ( Wet op de Jeugdhulpverlening ) , if the child is growing up under such conditions that he or she is threatened with moral or physical ruin ( zedelijke of lichamelijke ondergang ) . Such an order may be given for a maximum period of DATE , but can be extended by a maximum of DATE at a time ( Article CARDINAL of LAW ) .

If it is deemed necessary in the interest of the child ’s care and upbringing or for the purposes of an examination of the child ’s mental or physical health , the Juvenile Judge may further authorise a custodial placement of the child ( LAW ) . Authorisation for custodial placement in a confined institution can be extended only if this is required on account of severe behavioural difficulties of the minor concerned ( LAW ) . Such authorisation may only be given for a maximum period of DATE , with the possibility of subsequent extension for a maximum of DATE at a time ( Article CARDINAL:CARDINAL § CARDINAL ) .

An appeal against decisions taken in petition - based proceedings , including those of the Juvenile Judge , lies to ORG ( Article CARDINAL § CARDINAL of the Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ) ) . The time - limit for bringing such an appeal is DATE from the date of the decision ( LAW ) .

Pursuant to LAW , those who have participated in the proceedings at first instance or at the appellate stage may lodge an appeal on points of law with ORG within DATE from the date of the decision . Such an appeal is introduced by way of a petition signed by a member of ORG bar ( Article CARDINALa ) . ORG takes its decision after the Procurator General has submitted a written advisory opinion , within a time - limit set by ORG itself ( LAW ) .

At the relevant time , ORG bar was composed of all legal practitioners who were members of the bar of GPE , excluding any others ( section CARDINAL(CARDINAL ) of LAW ( GPE ) ) .

It is constant case - law of ORG to declare appeals on points of law contesting the lawfulness of detention inadmissible if the detention has ended , for whatever reason , by the time the court comes to consider the question . This is what it decided , for example , in its judgment of DATE ( see PERSON ( ORG , “ GPE ” ) DATE , no . CARDINAL ) .

ORG confirmed this position in a judgment of CARDINAL DATE ( GPE DATE , no . CARDINAL ) , in which it declared inadmissible an appeal on points of law lodged by a person committed to detention for DATE for failing to give evidence as a witness in court but who had been released DATE . Even so , ORG saw fit to address the merits of the case obiter , considering that had the appeal been admissible , it would have failed nonetheless .


Violation of Art. 10;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

At the material time the applicant was a member of ORG .

On DATE , in the course of a session of ORG , the applicant gave a speech in his capacity as a member of the ORG . The purpose of the debate was to take a vote on whether ORG ( PERSON ) had made appropriate use of the DATE municipal budget . In this context the applicant made the following statements :

“ What the members of ORG received is all lumped together ; it is unclear what costs how much ...

According to ORG resolution of DATE , spending on investments was to be increased . The money was to be spent on modernising and renovating the purification plant and building access to it . ”

The applicant had doubts as to whether that investment had in fact been made . He also referred to another investment project , the sanitary sewage system , saying :

“ It is unclear how many metres have been built . It is important , because this is public money . Everyone knows how to spend his own money , but where public money is concerned , it is being spent as much as possible . ”

The applicant further compared the GPE municipality with the neighbouring ORG municipality , which had had a small budget but had managed to construct an interceptor sewer at much less expense , which was an example of rational public spending ( gospodarność ) , and said :

“ And this is shocking ; with contractors earning MONEY , is this not money laundering in our municipality ? ”

The applicant asked the members of the ORG many other questions relating to the DATE budget .

During a break in the session the applicant gave an interview to a journalist from the local newspaper , ORG ( LOC ) .

On DATE the “ ORG ” published an article entitled “ Where is the CARDINAL ? ” with the subtitle “ GPE municipal councillor accuses ORG of money laundering ” . The article read that “ according to the councillor ’s statement made at the session of ORG , MONEY from the municipal budget allocated for the autonomous activity of the municipality has disappeared ” . The article went on to cite the following statement made by the applicant :

“ ... I made these calculations because there was something not right here , a CARDINAL is missing and I am sure of that . Maybe ORG is money laundering ? I will inform the institutions which deal with controlling the municipalities of the matter ”

On DATE CARDINAL members of ORG lodged a claim with ORG ( PERSON ) for the protection of their personal rights . Among other things , they sought an order requiring the applicant to publish an official apology in the local newspaper .

On DATE the ORG gave judgment finding that the statements made by the applicant at the ORG meeting on DATE and given to the press had been untrue and had infringed the plaintiffs’ personal rights ( by tarnishing their good name and reputation ) . The court further found that the plaintiffs were public officials and their good name , reputation and reliability were of great importance . It ordered the applicant to publish an official apology in ORG and to make a statement of apology at the next ORG session for his statements made at the CARDINAL DATE session and subsequently reproduced in ORG of DATE .

On an unspecified date the applicant appealed against that judgment .

On DATE the ORG ( Sąd Apelacyjny ) partly amended the first - instance judgment . It found that most of the applicant ’s statements made at the session on DATE had fallen within the limits of permissible criticism and that the applicant , as a representative of the local community acting in their interest , had had the right to ask critical questions relating to the way public money was spent by ORG . The court found , however , that the applicant ’s allusion to money laundering made during the session of ORG had gone beyond the limits of permissible criticism and that by that statement , referring to a type of crime traditionally associated with organised criminal groups , the applicant had infringed the plaintiffs’ personal rights . The court ordered the applicant to publish an official apology for his allusion to money laundering in ORG and to make the same apology at the next session of ORG .

On an unspecified date the applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) .

On DATE ORG refused to entertain that appeal .

The applicant appealed against that decision but , on DATE , ORG dismissed his appeal as inadmissible in law .

On DATE ORG instituted criminal proceedings against the applicant for making false accusations about another person before a prosecuting body . Notification of the possible commitment of a crime was lodged by the Mayor of GPE .

The criminal proceedings against the applicant are pending .

Article CARDINAL of the Civil Code contains a non - exhaustive list of rights known as “ personal rights ” ( dobra osobiste ) . This provision states :

“ The personal rights of an individual , such as health , liberty , reputation ( cześć ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements , shall be protected under civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL of the Civil Code provides for ways of redressing infringements of personal rights . Under that provision , a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity , unless it is not unlawful . Where an infringement has taken place , the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or demand satisfaction from him or her . If an infringement of a personal right causes financial loss , the person concerned may seek damages .

Under LAW of LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :

“ The court may grant a suitable sum as pecuniary compensation for non - pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed . Alternatively , without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement , the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest . ... ”


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant is a gypsy . In DATE she moved to the Cae Garw caravan site in FAC , GPE , with her CARDINAL children . The site was owned by ORG .

On DATE ORG entered into a licence agreement with ORG which provided that the latter would manage the site .

On DATE the applicant entered into a licence agreement with ORG to occupy pitch CARDINAL on the site . It was a condition of the licence that :

“ The Licensee or his / her resident family ... must not create a nuisance on the sites or to neighbouring properties . The Licensee shall be held responsible if any ... person living with ... her contravenes any of LAW . ”

On DATE ORG issued a notice of termination of licence to the applicant which expired on DATE . The notice referred to a clause of her licence agreement which provided :

“ ORG or the Licensee may terminate this licence by giving the other not DATE written notice to expire on a DATE in DATE . ”

No further reasons justifying the termination were given .

Notices to quit were also given to her parents , who occupied a different pitch on the site .

On DATE amendments to section CARDINAL of LAW DATE ( “ the DATE LAW ) entered into force which introduced the possibility for possession orders to be suspended by a court on the application of the occupier for up to DATE at a time ( see paragraph CARDINAL below ) .

On DATE ORG issued a claim for possession against the applicant and CARDINAL members of her extended family , including her parents , in ORG . In its particulars of claim , ORG alleged that all CARDINAL defendants were guilty of causing very substantial nuisance to the site to the detriment of other occupiers .

The applicant ’s parents did not apply for suspension or postponement of the orders . On DATE , possession orders were made against them by consent .

An oral hearing took place DATE in ORG and DATE in ORG in respect of the claim for possession against the applicant . In a witness statement lodged prior to the hearing , the applicant indicated that she intended to leave the site when her parents left .

On DATE Judge Bidder PERSON gave a judgment on the preliminary issue of whether the applicant could challenge the making of a possession order in her case . He considered himself bound by the decision of ORG in PERSON and PERSON ( see paragraph DATE below ) , which had examined the effect of this ORG ’s judgment in ORG v. GPE , no . CARDINAL/CARDINAL , DATE . Thus , he concluded , the only options open to the applicant were to challenge the domestic law itself or to commence judicial review proceedings based on conventional grounds . He concluded :

“ DATE . ... I do not consider it to be arguable that the decision of the claimants to seek possession against her was unreasonable or that their decision to invoke their domestic law rights could be castigated as unreasonable ...

Moreover , the fact that parliament has amended the applicable domestic legislation to afford the gypsy occupier the opportunity to contend that any possession order should be suspended for DATE at a time distinguishes that case from ORG , and given that that amendment was considered in PERSON and PERSON I find it impossible to say ... that there is a seriously arguable point raised that the law which enables the court to make the possession order is incompatible with article CARDINAL ... ”

He invited submissions from the applicant as to the possible temporary suspension of any possession order . He added :

“ DATE . I should say that on the issue of suspension of the ... order against the [ applicant ] of possession I would invite the parties to consider the date of CARDINALth DATE being the date on which the [ applicant ’s ] parents are required to leave and on which she indicates that she would leave anyway ... ”

On DATE , following the applicant ’s submissions that any possession order against her should be suspended , the judge handed down his judgment on the remaining issues . Having reviewed the allegations made against the applicant by the claimant , the judge concluded :

“ CARDINAL . ... I am not satisfied that PERSON has herself been guilty of any offensive behaviour on site , or of any breach of licence , apart from the relatively minor failure to pay the water charges . ”

He was , however , satisfied that her son , who resided part of the time with her , had been involved in an incident on site in which he threatened someone with a gun , although it was not clear whether the gun had been real or merely an imitation ; and had dumped garden refuse on the site .

Turning to consider whether the applicant ’s personal circumstances , and those of her son , justified a suspension of the possession order which he would be making in her case the judge noted :

“ CARDINAL . In relation to PERSON , while I am obliged to make a possession order , I find her only breach of site conditions has been recent and is a very modest failure to pay water charges . She has indicated in a recent statement that she intends to move from the site when [ her parents ] leave , that is on or before TIME on DATE . I do consider it appropriate to suspend enforcement of the possession order against her until the same time and date . However , I am clear that the behaviour of [ her son ] on this site and his attitude towards the ORG [ the family of the site manager ] is such that I have to impose conditions on her continued possession , as sought in the draft order – [ her son ] lives half his time with his father , and I have no doubt that if he can not live with his mother , he will be able to live with his father ... ”

He made an order for possession against the applicant , which he suspended until DATE upon the condition that her son leave the site and that she discharge the GBP CARDINAL arrears of water charges at the rate of GBP DATE .

On DATE the applicant , who was still resident at the site , was granted permission to appeal the possession order to ORG . A stay of execution of the order of DATE was also ordered .

In DATE a bill which would amend LAW DATE ( “ the DATE LAW ) was introduced to ORG . The effect of the proposed amendment was to allow a defendant in possession proceedings such as the applicant to challenge before ORG the reasonableness of making a possession order .

On DATE the applicant ’s appeal was dismissed . Considering the impact of the amendment to the DATE Act to allow suspension of a possession order on whether the applicant could succeed in a conventional public law challenge to the decision to seek a possession order , Lord Justice PERSON noted :

“ DATE . The significance of the amendment is that a claimant ’s decision to seek possession does not involve summary eviction without judicial scrutiny of the justification of the claim to possession . By issuing proceedings , the claimant submits to the jurisdiction of the court , , including the claimant ’s complaints about the defendant ’s behaviour . ”

He continued :

“ CARDINAL . ... It may be that , for the reasons given by Lord PERSON [ in PERSON ] , a public law defence could have been raised successfully in ORG . I would suggest that this is not so much because the family had been in occupation for a great length of time , but rather because it was unreasonable and grossly unfair for the local authority to seek a possession order and obtain the eviction of the occupier merely on the basis of a termination of the licence ‘ without the need to make good any underlying reason for taking such precipitate ORG . The real difference between the present case and ORG is not that the appellant had been in occupation for a shorter period than was the family in Connors ... On any view , the site was her home and had been for a substantial period of time . The fact that she had not been in occupation for as long as the family in ORG is not , in my judgment , of much significance . The real difference between the CARDINAL cases is that in ORG , once the licence had been terminated , the authority was entitled to an order for possession whose enforcement could not be suspended by the court . ”

He concluded that since the amendment to LAW , it was difficult to conceive of a case in which a public law defence would succeed . Referring also to the fact that Judge Bidder had made a finding of misconduct on the site by the applicant ’s son , for whose behaviour she was responsible under the terms of the licence , ORG considered that the judge was right to hold that the public law defence was not seriously arguable .

ORG further noted that the factual situation of ORG was not materially different from the present case in that in both cases the defendant had occupied a site as a home for DATE . Further , in both cases the claimant had validly and properly terminated the defendant ’s licence to occupy so that the defendant had become a trespasser ; the claimant was entitled to an order for possession as the owner of the land ; and no further justification was required to seek an order for possession . However , it was agreed by the parties that it was not necessary to decide whether the present case could be distinguished from ORG as the distinction was only relevant for any appeal before ORG .

Finally , in respect of the applicant ’s argument that the amendment to section CARDINAL of LAW did not remedy the incompatibility with LAW , ORG emphasised that , in principle , a wide margin of appreciation was left to the national authorities in such matters . However , he accepted that the vulnerable position of gypsies as a minority meant that “ some special consideration should be given to their needs and different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ” ( citing ORG , § DATE ) . He found that the main reason for the narrowing of the margin of appreciation in ORG itself was that the complete absence of any procedural safeguards was a serious interference with the applicant ’s LAW rights in that case , which called for particularly weighty reasons of public interest in justification . However , the precise scope of these safeguards was in his view , a matter for the national authorities to determine . He considered that provided that a reasonable degree of protection was afforded by the domestic law , ORG would not interfere , even if a greater degree of protection could have been afforded . He accordingly rejected the applicant ’s submissions , noting :

“ CARDINAL . The objectionable feature of the legal regime in place before the amendment was that the court was bound not merely to make an order for possession , but to order the eviction of an occupant such as the appellant provided that the CARDINAL GPE notice was given . Absent a public law challenge , the occupant had no opportunity to challenge the reasons given by the local authority for seeking possession and the court had no jurisdiction to take the reasons into account in deciding whether to order the occupant ’s eviction . The local authority ’s reasons were irrelevant as were the occupant ’s personal circumstances . Nor did the court have power to suspend an order for possession even in circumstances of extreme hardship which indicated that eviction would not be justified under article CARDINAL(CARDINAL ) . In short , there was no opportunity for the court to make any assessment of the justification for eviction in order to determine whether the interference with an occupier ’s rights under article CARDINAL(CARDINAL ) was justified on an application of article CARDINAL(CARDINAL ) . Provided that the relevant formal requirements had been satisfied , the role of the court was purely mechanistic .

The amendment has introduced procedural protections which ensure that the role of the court is no longer a mechanistic one even when a local authority seeks to evict a licensee from a caravan site . Summary eviction has been replaced by judicial examination . Section CARDINAL(CARDINAL ) now provides that the enforcement of a possession order may be suspended for such period DATE ‘ as the court thinks ORG . The court has a wide discretion under subsection ( CARDINAL ) to impose conditions when making an order for suspension . By subsection ( CARDINAL ) , the court may extend the suspension of the possession order for DATE at a time . Subsection ( CARDINAL ) requires the court to have regard to ‘ all the LOC in deciding whether to exercise its power to suspend . The court is , therefore , ... ”

He concluded :

“ DATE . In my judgment , the decision to provide the procedural safeguards introduced by the amendment of section CARDINAL of LAW was within the margin of appreciation available to GPE . More generous safeguards could have been introduced ( and they will be when LAW is amended ) . But the amendment goes far enough to meet the real thrust of the criticisms made in ORG . ”

As to the applicant ’s argument that the legislation discriminated against gypsies , ORG found that although the discrimination point was CARDINAL of the features of the ORG ’s reasoning in ORG , it was not the main reason for the decision . Even if that was wrong , ORG considered that by addressing the lack of procedural safeguards for gypsies of local authority sites , the amendment had also gone a long way to meeting the discrimination point . While discrimination would not be cured completely until LAW was amended , it had been much mitigated . Thus to the extent that the discrimination persisted , the decision not to eliminate it altogether fell within the margin of appreciation accorded to the contracting GPE .

On DATE ORG refused the applicant ’s request for permission to appeal .

In DATE the applicant left PERSON caravan site for alternative accommodation on land owned by her brother . She claims that her departure was the result of the refusal of leave to appeal and in the face of further threats of eviction The land owned by her brother has no planning permission for residential use and its occupants , which include the applicant ’s brother , his CARDINAL children and the applicants’ parents , share minimal facilities , namely CARDINAL toilet and CARDINAL sink with cold running water in a shed with no lighting .

Part I of LAW DATE ( “ the DATE LAW ) provides limited security of tenure to certain occupiers of caravans and caravan sites . LAW provides that CARDINAL GPE notice of termination of a licence to occupy a caravan site must be given .

Section CARDINAL(CARDINAL ) provides that when a court makes an order for the removal or exclusion of an occupier from a caravan site , it may suspend the enforcement of that order for DATE at a time .

Section CARDINAL(CARDINAL ) provides that in considering whether or how to exercise its powers under this section , the court shall have regard to all the circumstances , and in particular to the questions :

“ ( a ) whether the occupier of the caravan has failed , whether before or after the expiration or determination of the relevant residential contract , to observe any terms or conditions of that contract , any conditions of the site licence , or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon ;

( b ) whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms ;

( c ) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan ( or , as the case may be , another suitable caravan and accommodation for it ) . ”

Section CARDINAL(CARDINAL ) of the DATE Act formerly excluded the court ’s power to suspend the enforcement of a possession order under section CARDINAL ) in the case of possession proceedings brought by local authorities . However , the exclusion of local authority caravan sites from the ambit of the power to suspend under section CARDINAL ) was removed by LAW , which entered into force on DATE , in respect of proceedings begun on or after that date .

LAW DATE ( “ the DATE LAW ) was enacted , inter alia , to restrict the eviction from caravan sites of occupiers of caravans . It applies to any agreement under which a person is entitled to station a mobile home on land forming part of a “ protected site ” and to occupy it as his only or main residence and implies into licence agreements falling within the ambit of its provisions various protective terms .

Section CARDINAL(CARDINAL ) and paragraph CARDINAL of Schedule CARDINAL to the DATE Act provide that the owner of a relevant site is entitled to terminate the licence only if ( i ) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach ; and ( ii ) the court considers it reasonable for the agreement to be terminated .

Section CARDINAL ) defines “ protected site ” by reference to its definition in LAW ( essentially applying to land authorised for long - term residence ) . However , the section expressly excludes from the definition any land occupied by a local authority as a caravan site providing accommodation for gypsies .

Pursuant to section CARDINAL and Schedule CARDINAL of ORG DATE , which was enacted on DATE , the exclusion of land used for accommodating gypsies from the definition of “ protected site ” in section CARDINAL ) of LAW is removed . The amendment has entered into force in GPE but has not yet entered into force in GPE .

For a general summary of domestic proceedings prior to DATE regarding the right of defendants to rely on LAW in the context of a defence to possession proceedings , see the ORG ’s judgment in PERSON and Others v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .

Notably , in PERSON and others v. GPE of GPE and others ; and ORG v. Price and others [ DATE ] ORG CARDINAL , Lord Hope of PERSON clarified that a challenge to possession proceedings could only be based either on an argument that the law itself was incompatible with Article CARDINAL ; or on conventional judicial review grounds .

The subsequent case of PERSON and others v. ORG [ DATE ] ORG CARDINAL , decided after the applicant ’s appeal was dismissed , concerned the eviction of gypsies from a local authority caravan site . Lord Hope concluded that it was open to the defendant to argue that the law itself was incompatible with the Convention because the relevant legal framework was indistinguishable from that which applied in ORG . He considered that in light of the clear terms of the legislation allowing the local authority possession , there was no scope for interpreting it in a manner which was Convention - compatible and continued :

“ CARDINAL . ... This raises the question whether your Lordships should make a declaration of incompatibility ... The incompatibility with the appellant ’s article CARDINAL rights that was to be found in section CARDINAL(CARDINAL)(a ) of the DATE Act has been removed by section CARDINAL(CARDINAL ) of LAW . As already noted , a clause was included in LAW to remove the exclusion of local authority sites which provide accommodation for gipsies from the protection of LAW . Nevertheless , prior to its receiving LAW ... , Lord PERSON favoured the making of a declaration of incompatibility in relation to section CARDINAL ) of LAW .

I was at first inclined to doubt whether a declaration was necessary . The power to make a declaration ... is , after all , a discretionary one . But on reflection I agreed that it would be appropriate to make such a declaration in this case . Indeed I considered that the decision of the GPE court in ORG left the ORG with no alternative but to do this . That was a judgment which was pronounced in a case against GPE . Its decision is as plain an indication as there could be that there was an incompatibility in our legislation that ought to be addressed by ORG ... In such circumstances the decision as to whether the incompatibility should remain was not for the court to take . It had to be left to the government and to ORG , and it could not be taken for granted that the amending legislation would be passed . In the events that have happened , however , the making of a declaration has become unnecessary ... ”

On DATE ORG handed down its judgment in ORG v. PERSON [ DATE ] ORG CARDINAL ( “ Pinnock ” ) , sitting as a panel of CARDINAL judges . The case concerned possession proceedings brought against a demoted tenant . Following a review of the case - law , ORG considered the following propositions to be well - established in the jurisprudence of this ORG :

“ ( a ) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure , and to have it determined by an independent tribunal in the light of DATE , even if his right of occupation under domestic law has come to an end ...

( b ) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review ( i e , one which does not permit the court to make its own assessment of the facts in an appropriate case ) is inadequate as it is not appropriate for resolving sensitive factual issues ...

( c ) Where the measure includes proceedings involving CARDINAL stage , it is the proceedings as a whole which must be considered in order to see if article CARDINAL has been complied with ...

( d ) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there , it would be unlawful to evict him so long as the conclusion obtains – for example , for a specified period , or until a specified event occurs , or a particular condition is satisfied . ”

ORG considered that in order for domestic law to be compatible with Article CARDINAL of the Convention , where a court was asked by a local authority to make an order for possession of a person ’s home , the court had to have the power to assess the proportionality of making the order , and , in making that assessment , to resolve any relevant dispute of fact . In terms of the practical implications of this principle , ORG noted that if domestic law justified an outright order for possession , the effect of Article CARDINAL could , albeit in exceptional cases , justify granting an extended period for possession , suspending the order for possession on the happening of an event , or even refusing an order altogether . Finally , the court observed that the need for a court to have the ability to assess LAW CARDINAL proportionality of making a possession order in respect of a person ’s home might require certain statutory and procedural provisions to be revisited .

On DATE ORG handed down its judgment in the joined cases of Mayor and PERSON of the London Borough of GPE v. PERSON ; ORG v. Hall ; ORG v. PERSON [ DATE ] ORG CARDINAL ( “ PERSON and others ” ) . In its judgment , the court extended its approach in PERSON to introductory tenancies and tenancies under the homelessness regime .