SAMMUT AND VISA INVESTMENTS LIMITED v. MALTA

The first applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE ( GPE ) . He is the director of the second applicant , ORG , a limited liability company located in GPE . The applicants were represented before the Court by Mr PERSON and PERSON , both lawyers practising in GPE ( GPE ) . The respondent Government were represented by their Agent , Mr PERSON , Attorney General .

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

The second applicant is the owner of a real estate in GPE . In his capacity as company director the first applicant was given authority to obtain from the administration , the authorisations needed for carrying out building work .

On DATE ORG ( the “ LAW ” ) issued a permit in which it authorised the first applicant “ to demolish the existing buildings and to re - erect ground floor and mezzanine shopping arcades with overlying flats and garages at basement level ... PERSON of building should not exceed CARDINAL floors plus underlying basement ” .

According to the applicants this permit and the plans attached approved CARDINAL basement car park , a ground floor and mezzanine shopping arcade , and CARDINAL levels of flats . According to the Government this permit and the plans attached approved “ CARDINAL basement car park , a ground floor and mezzanine shopping arcade , and CARDINAL levels of flats ” . The Government noted that in the approved plans the seventh level was deleted by shading it in yellow . The parties appear to have become aware of these diverging views only during the proceedings before this ORG .

This permit was valid for DATE , and the work as the first applicant believed it to have been authorised was carried out within that period .

On DATE a new permit was issued , since an application had been made for a further permit connected to the same development but from a different side of the site ( PERSON ) . In so far as relevant , the first applicant was authorised “ to demolish the existing building and to re - erect CARDINAL basement / garages for private cars , plus ground floor shopping arcades ( double height ) ... with overlying flats ( CARDINAL floors ) including washrooms ... ” .

The applicants and the ORG agreed that the CARDINAL permit applications in DATE and DATE were substantially identical , except for the development on PERSON , which was not at issue . Both applications were for a development of a ground floor of a height of CARDINAL normal floors and CARDINAL upper floors of normal height , therefore a total height of CARDINAL normal floors .

In respect of the permit issued on DATE , the Government confirmed the wording quoted above and added that in CARDINAL of the drawings constituting the plans , the seventh floor had been erroneously reinserted while the applicants submitted that the ambiguous deletion of part of the mezzanine floor had been eliminated , but that the sixth floor had been deleted .

The applicants alleged that they had developed the site according to the permits and according to the plans approved by the LAW . The Government contested this on the basis of their exposition of the facts .

DATE , on DATE , the LAW issued of its own motion another permit in the name of the first applicant to remedy the situation created by the permit of DATE . In so far as relevant , this permit of CARDINAL DATE authorised the first applicant to develop the site in question in a different manner in particular “ to demolish existing building and to re - erect basement garages for private cars , plus CARDINAL floors shopping arcade ( including a ground floor of double height ) ... with overlying flats ( CARDINAL floors ) and washrooms ” . It was also stated that the plans which had been issued with the permit of DATE were being replaced .

According to the Government , the issue of the permit of CARDINAL DATE was meant to correct an oversight which had occurred during the drafting of the permit of DATE . On that occasion the LAW had deleted CARDINAL of the floors , marked as a mezzanine floor , from the plans submitted by the applicants . However , because of a clerical error , this deletion was not reflected in the permit of DATE . The applicants submitted that it was not possible for them to know whether the authorisation to build a mezzanine floor was due , as the ORG stated , to an “ oversight ” . They later stated that according to them the authorisation to construct apartments on the sixth floor and to build a mezzanine floor had been revoked .

The change in the building specifications was not notified to the applicants , who were not informed that the LAW was reconsidering the permits already issued to them . However , the permit of DATE was sent to the ORG architect , who on DATE requested the Chairman of the LAW to reconsider the permit in issue .

On DATE ORG ( the “ MEPA ” ) replied that ORG ( the “ ORG ” ) had decided that the permit of DATE should stand as issued .

The applicants submitted that it was unclear to them and to their architect that the request of CARDINAL DATE was being considered by the ORG , which never invited them to present oral or written submissions .

On DATE , when over DATE had passed since the ORG ’s decision of DATE holding that the permit of CARDINAL DATE should stand as issued , the ORG issued an enforcement notice ( no . CARDINAL/CARDINAL ) . It observed that the “ seventh ” floor and the washrooms on the top floor were not covered by a development permit . The applicants were ordered to demolish those parts of the development already completed which were not authorised by the permit of DATE .

In DATE the first applicant appealed against this notice before ORG , which rejected his claim in a decision of DATE . ORG held that the only valid building permit was that issued on DATE and that the plans submitted by the applicants and the permits previously granted on the basis of these plans were not in conformity with the law .

The first applicant referred his case to ORG . He argued that the original permit had never been validly revoked . However , on DATE this appeal was adjourned sine die at the first applicant ’s request by reason of the fact that a constitutional claim , having a bearing on the proceedings before ORG , had been filed before ORG ( FAC ) . According to the information provided by the Government in DATE , at that date the proceedings before ORG had not been reactivated .

In the meantime , on DATE , the ORG had issued against the applicants another enforcement notice ( no . CARDINAL/CARDINAL ) , in relation to an illegal development of the facade of the building , which the applicants did not appeal .

The applicants asserted that on the basis of the permits of DATE and of CARDINAL DATE they had undertaken several obligations vis - à - vis third parties , including leases and sales , and had provided funding for the planned construction work . Due to the partial revocation of these permits , the applicants were unable to honour their obligations , thus suffering a significant financial loss .

On DATE the first applicant lodged a constitutional complaint with ORG ( FAC ) . He alleged that the revocation of the permit of DATE by means of the issuing of the new permit of CARDINAL DATE had violated his right to peaceful enjoyment of possessions , guaranteed by LAW No . CARDINAL . He also requested that the permit of DATE be declared null and void . He further alleged that he had been denied a fair hearing since the LAW had failed to notify him of the changes in the permit and he had had no opportunity to make any submissions before the ORG ’s decision .

In a judgment of CARDINAL DATE ORG rejected the complaint on procedural grounds . It observed that the first applicant had brought his claim against the ORG ; however , this body was not a successor of the ORG which had issued the permit of DATE .

The first applicant appealed to ORG .

NORP In a judgment of DATE ORG observed that the aim of constitutional proceedings was to afford the highest judicial protection against a violation of fundamental rights , with the least formality and the maximum efficiency . ORG were not obliged to indicate with certainty those responsible for the violation . Therefore , nothing prevented ORG from precisely identifying those who were responsible for the violation alleged and from authorising the first applicant to bring an action against them . ORG therefore sent the file back to ORG , ordering that the case be continued according to law .

In a judgment of DATE ORG refused to exercise its constitutional jurisdiction on the ground that the first applicant had used and was using ordinary remedies in order to protect his fundamental rights . ORG observed that the first applicant had requested the ORG to reconsider his case . There was still a possibility that this request would be accepted and an appeal was available to the first applicant in case of refusal . Moreover , the first applicant had appealed to ORG and ORG .

On DATE the first applicant appealed to ORG .

In a judgment of CARDINAL DATE ORG rejected the first applicant ’s appeal and confirmed ORG judgment . It observed that in the interests of the administration of justice , the constitutional courts should not be burdened with cases which might be dealt with by other courts or for which there were other remedies available under the domestic legislation . The first applicant ’s claim was that by reason of the issuing of the permit of DATE he was obliged to change what he had already developed or had planned to develop according to the previous permits . Therefore , a request for reconsideration of the case and the possibility of being granted a new permit were effective remedies available to the first applicant at the time of the introduction of his constitutional claim before ORG . In respect of his complaint regarding a fair hearing , it held that his complaint was against the ORG and not the LAW ; thus , the remedy he was seeking before ORG was different from that sought before ORG , and therefore the applicant was still making use of ordinary remedies and the ORG could not exercise its constitutional jurisdiction .

Meanwhile , on DATE , the first applicant had submitted a “ full development application ” to the ORG , requesting the retention of the mezzanine floor and to be authorised to change the top floor from washrooms to penthouses . This request was refused on DATE .

In a letter of CARDINAL DATE the first applicant asked for a reconsideration of his request . His claim was upheld and on DATE a new building permit was issued .

Until DATE building development permits were regulated by Part I of the Code of Police Laws . Section CARDINAL(CARDINAL ) of that Code provided :

“ The Minister responsible for public works may , prior to the preparation , publication or approval of a scheme , order by notice in ORG the whole or any part of GPE to be a planning area ; and from the date of any such order no person shall lay out , construct or close any street , or erect any building or increase the height of or otherwise modify any existing building , or change the use of any land or building in any part of such area ( whether or not an approved scheme exists in respect thereof ) without a permit from the Minister responsible for public works who may , in his discretion , refuse the grant of a permit or , in granting it , impose such conditions as in his discretion he may deem proper . ”

NORP The Minister responsible for public works could delegate all or any of his powers to a body known as ORG ( the “ LAW ” ) . However , this body was abolished by the DATE LAW ( which entered into force on DATE ) , and a new autonomous public authority with the power to issue building permits , ORG ( the “ ORG ” ) , was set up . According to ORG ( see judgment of DATE in the case of PERSON v. ORG ) the ORG “ enjoyed original powers even in relation to a development which occurred before the coming into force of Act I of DATE , and not continuing powers as a successor of the LAW ” .

Section QUANTITY CARDINAL ) and ( CARDINAL ) of LAW provide :

“ ( CARDINAL ) If an applicant considers that conditions imposed upon a development permission , or a refusal of such a permission , is unreasonable he may , without prejudice to his right of appeal , either request the ORG or the ORG , as the case may be , to reconsider its decision or he may lodge an appeal with ORG ... A request for reconsideration shall not be made currently with an appeal . A request for reconsideration and an appeal under this sub - section , as the case may be , shall be made within DATE of receipt of the decision of the ORG or of the ORG , as the case may be . Where a request for reconsideration has been made , an appeal may be made to ORG within DATE of receipt of the decision taken in the reconsideration .

( CARDINAL ) During the reconsideration stage , the ORG or the ORG , as the case may be , may request the applicant to file fresh plans , in which case the ORG or the ORG , as the case may be , shall give reasons for such a request provided that the substance of the development shall not change and any person who has made written objections to the development in terms of LAW ) shall be informed that such fresh plans have been so filed and shall also be invited to be present at the ORG ’s or the ORG ’s sitting , as the case may be , when such application shall be discussed . Both the applicant and the objectors , if any , shall be informed of the date and time of the meeting and , if present , may address the ORG or the ORG , as the case may be , with regard to the planning matters concerning the said application . ”

The relevant sections of ORG read as follows :

Section CARDINAL

“ Any person who makes use , within the proper limits , of a right competent to him , shall not be liable for any damage which may result therefrom .

Section CARDINAL

Every person , however , shall be liable for the damage which occurs through his fault .

Section CARDINAL

( CARDINAL ) A person shall be deemed to be in fault if , in his own acts , he does not use the prudence , diligence , and attention of a bonus paterfamilias .

( CARDINAL ) No person shall , in the absence of an express provision of the law , be liable for any damage caused by want of prudence , diligence , or attention in a higher degree .

Section CARDINAL

Any person who , with or without intent to injure , voluntarily or through negligence , imprudence , or want of attention , is guilty of any act or omission constituting a breach of the duty imposed by law , shall be liable for any damage resulting therefrom . ”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in NORP , GPE ( GPE ) . ORG ( “ the Government ” ) were represented by PERSON , the former Representative of GPE at ORG .

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

The applicant is a former officer of the interior . He was discharged in DATE and was entitled to special retirement conditions .

In DATE he brought civil proceedings against ORG of the LOC claiming the pension arrears and non - pecuniary damages .

On DATE ORG awarded the applicant NORP in arrears and rejected the non - pecuniary claims . The judgment was not appealed against and entered into force on DATE .

On DATE the applicant submitted the writ of execution to the local branch of ORG .

On DATE the amount awarded by the judgment was transferred to the applicant 's bank account .

Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .


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

The applicant was born in DATE and lives in GPE .

The applicant was a student in ORG at the time of the events giving rise to the present application .

On DATE the applicant was notified by an arrest warrant , which he signed , about the basis and the reasons for his arrest . On DATE he was taken into custody by the police officers from the Anti - Terror Branch of ORG ( Terörle Mücadele Şubesi ) on suspicion of his involvement in the ORG .

On DATE the police officers drafted a report of the reconstruction of events , which was signed by the applicant .

On DATE the applicant gave a statement to the police , where he confessed that he had been involved in certain activities for the ORG .

On DATE he was brought before the judge who ordered his detention on remand .

On DATE the chief public prosecutor at ORG filed a bill of indictment with the latter charging the applicant under LAW of LAW with carrying out activities for the purpose of bringing about the secession of part of the national territory .

On DATE ORG composed of CARDINAL civilian judges and a military judge , convicted the applicant of the charges against him and sentenced him to death under LAW . Taking into account the applicant 's behaviour during the trial , the death penalty was commuted to a life sentence . It is to be noted that ORG held CARDINAL hearings and heard CARDINAL witnesses .

On DATE ORG upheld the judgment of ORG .

On DATE the decision of ORG was pronounced in the presence of the applicant 's lawyer .

On DATE , ORG dismissed the applicant 's request for rectification of decision .

A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and Gençel v. GPE ( no . MONEY , § § DATE , DATE ) .


The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently serving a sentence of imprisonment in FAC , GPE . He is represented before the ORG by PERSON PERSON and PERSON , lawyers practising in GPE .

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

On DATE , the applicant was served by the Inland Revenue with a Notice pursuant to section CARDINAL ) of LAW DATE , which , inter alia , required the applicant to provide a certified statement of his assets and liabilities as at DATE .

On DATE , when the applicant had failed to comply , he was summonsed to appear before ORG . The summons warned him that failure to comply with the notice rendered him liable to a penalty not exceeding QUANTITY ( ORG ) pursuant to section CARDINAL(CARDINAL ) of LAW . ( The penalty had in fact been increased to GBP CARDINAL ) .

On DATE , the applicant still having failed to comply was presented with a “ Hansard Warning . ” This involved the reading out to him of the reply of the Chancellor of the ORG to a Parliamentary question on DATE . This outlined the practice of ORG in cases of fraud indicating that it might accept a money settlement instead of instituting criminal proceedings and that its decision as to whether to accept a settlement or institute criminal proceedings would take into account whether the taxpayer had inter alia given full facilities for investigation into his affairs .

On or about CARDINAL DATE , the applicant delivered to ORG a schedule of his assets as at DATE as required by the notice .

The applicant was later charged with CARDINAL counts of cheating the public revenue of income tax and corporation tax . Count CARDINAL specified :

“ STATEMENT OF OFFENCE

Cheating Her Majesty the Queen and the Commissioners of Inland Revenue , contrary to common law .

PARTICULARS OF OFFENCE

[ The applicant ] on or about CARDINAL DATE with intent to defraud ... cheated Her Majesty the Queen and ORG of public revenue , namely , income tax , by delivering ... to an Inspector of Taxes a schedule of assets as at DATE in respect of his assets and the assets of his minor children which was false , misleading and deceptive in that it omitted to disclose divers assets which were owned by him . Particulars of the omitted assets are – his beneficial interest in shares issued by off - shore companies , his beneficial interest in properties held in the names of off - shore companies and his beneficial interest in bank accounts held in GPE and in GPE in the names of off - shore companies . ”

The applicant was convicted of all counts on DATE . On DATE , he was sentenced to CARDINAL concurrent terms of CARDINAL years’ imprisonment and a confiscation order made in the sum of MONEY ( GBP ) . This sum was calculated as being the lesser of the CARDINAL sums , namely the amount of benefit from the offences ( GBP CARDINAL ) and the applicant ’s total realisable assets ( GBP CARDINAL ) .

On DATE , ORG dismissed his appeal against conviction and on DATE , dismissed his appeal against sentence . In relation to the applicant ’s argument that he remained liable to pay the outstanding unpaid tax , it noted the undertaking given by ORG on DATE that it would not pursue the applicant for pre - existing tax liabilities out of any income which he might acquire in future .

On DATE , ORG , reversing an earlier refusal , allowed his petition for leave to appeal from ORG on a number of points and also permitted him to raise a new point relating to LAW as concerned his conviction on count CARDINAL .

On DATE , ORG dismissed his appeal . Lord PERSON giving judgment noted the applicant ’s arguments under the LAW in which he relied in particular upon the cases of ORG v. GPE and PERSON v. the GPE , that the prosecution case against him breached his right to a fair trial as he had been compelled under threat of penalty to incriminate himself by providing the schedule of assets and found as follows :

“ ... the present case is one which relates to the obligation of a citizen to pay taxes and to his duty not to cheat the Revenue . It is self evident that payment of taxes fixed by the legislature is essential for the functioning of any democratic state . It is also self - evident that to ensure the due payment of taxes the ORG must have power to require its citizens to inform it of the amount of their DATE income and to have sanctions available to enforce the provision of that information ... ”

He proceeded to review the tax legislation which required taxpayers to make tax returns .

“ It is clearly permissible for a ORG to enact such provisions and there could be no substance in an argument that there is a violation of LAW if the revenue prosecuted a citizen for cheating the revenue by furnishing a standard tax return containing false information . Similarly , in the present case , viewed against that background that the ORG , for the purpose of collecting tax , is entitled to require a citizen to inform it of his income and to enforce penalties for failure to do so , the section CARDINAL(CARDINAL ) notice requiring information can not constitute a violation of the right against self - incrimination . The present case is therefore clearly distinguishable from ORG on that ground ... ”


András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque

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

The applicant describes herself as a human rights activist and a worker in GPE .

According to her submissions , on DATE she was kidnapped by CARDINAL people while she was on her way to attend a seminar . She claims that these people harassed her , threatened her with death to induce her to act as a spy for them and to give away the names of her international collaborators , and stubbed out cigarettes on her arms when she refused to do so . She then lost consciousness on receiving a blow to the head .

DATE , DATE , the applicant requested that criminal proceedings be opened against her alleged kidnappers ; she claimed that they were police officers . She also requested to be examined at ORG .

On DATE the applicant applied to ORG , where she was examined by several doctors . The report drawn up afterwards indicates that the blisters caused by cigarette burns and soft - tissue lesions on her body coincided with her description of the events .

On DATE the ORG public prosecutor took the applicant ’s statement .

After a period during which her requests for information were all refused by the public prosecutor , on DATE the applicant issued another request for information about the progress of the investigation . On DATE the ORG public prosecutor responded to her request , indicating that the investigation was still pending and the perpetrators of the offence were being sought . The applicant was also informed that she would be notified of further developments as they occurred .


Josep Casadevall;Nicolas Bratza;Simon Brown

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr PERSON , a solicitor practising in GPE .

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

The applicant , his wife and CARDINAL children , are gypsies . He bought land known as ORG and moved onto it with CARDINAL caravans on DATE . Prior to that date , they had lived in caravans at ORG , an established gypsy caravan site located some FAC . kilometres to the south of his land .

On DATE , ORG ( “ the ORG ” ) served an enforcement notice requiring him to remove the caravans and cease using the land , which had been used for agricultural purposes , as a caravan site .

The applicant appealed .

By decision dated DATE , following a hearing and inspection of the site , the ORG appointed by the Secretary of ORG dismissed the applicant ’s appeal . He found that the development was prominent and harmed the rural character of the surroundings . He noted that there was a general shortfall of sites for gypsies in the county but that there were CARDINAL other privately owned sites in the vicinity , CARDINAL owned by the applicant ’s father ( ORG ) and the other by his brother , where stationing of caravans had been allowed and he considered that the possibilities of reorganising or extending the residential parts of these sites had not been fully explored . In particular , permission had been granted for a replacement dwelling on ORG and when his parents moved into that house more space would become available . In the circumstances therefore the applicant ’s need for an additional site at ORG had not been made out . The Inspector did not find the enforcement disproportionate as regarded Article CARDINAL but gave DATE to comply with the condition of ceasing occupation and removal of the caravans to allow the applicant to explore other options .

The applicant did not appeal against this decision to ORG .

On DATE , the ORG laid an information against the applicant which alleged that he had failed to comply with an enforcement notice .

On DATE , the applicant was tried by the ORG . They dismissed the information finding the applicant not guilty as he “ had done all that he could reasonably be expected to do to find suitable accommodation ” for the purposes of the statutory defence under section CARDINAL ) of ORG DATE .

The ORG appealed against that decision by way of case stated having requested that the magistrates pose the following question for the opinion of the High Court :

“ whether in light of the evidence the steps that the Justices found the < applicant > had taken to comply with the enforcement notice constituted , in law , a valid statutory defence under section CARDINAL ) of ORG DATE . ”

The case stated recorded the following findings of fact by the magistrates :

f ) The [ applicant ] continued to reside at ORG .

g ) The [ applicant ] previously resided at a site belonging to his father . Due to family difficulties he and his family had to leave that site . He was unable to return .

h ) The [ applicant ’s ] children attend school locally . It is in their best interests to remain at their respective schools .

i ) The [ applicant ] made approaches to local farmers to buy land , confirmed in letters of DATE and DATE , and was unsuccessful . The [ applicant ] made enquiries of , and has registered with , local property consultants . These enquiries as to available local land also proved unsuccessful .

j ) There is a shortfall of gypsy accommodation in the GPE area and consequently other alternative local sites were not available . The [ applicant ] did not look for any gypsy accommodation outside the GPE area .

k ) The [ applicant ] approached the [ ORG ’s ] housing department for alternative accommodation before purchasing ORG . As he is the owner of a mobile home he was not deemed to be homeless and therefore none was available .

l ) The [ applicant ] was willing to change his culture and consider living in a house with his family .

m ) The sale of the [ applicant ’s ] mobile home would have rendered him intentionally homeless and local authority accommodation would not have been available . He was advised by the [ Council ] to go to letting agents .

n ) The sale of the [ applicant ’s ] mobile home would have realised him sufficient funds to enable him to rent accommodation but only for a short period and therefore he did not go to any letting agents or attempt to obtain rental accommodation . Once the funds realised were used the [ applicant ] the applicant would not be able to maintain rental payments .

o ) The sale of the mobile home would have realised in the region of £ MONEY .

p ) The [ applicant ] was in work .

On DATE Mr Justice PERSON allowed the ORG ’s appeal and remitted the case to the magistrates with a direction that they convict the applicant of the offence . He noted the findings of fact by the magistrates but found that the GPE application of the defence under section CARDINAL ) was flawed :

“ A defence under section CARDINAL(CARDINAL ) is not established by demonstrating that the reason for non - compliance with an enforcement notice is that no alternative site had become available , where the activity in question could be continued . On that basis , a whole range of activities , which take place contrary to planning control , and are commonly enforced against , could continue simply because nowhere else was available for them to be carried on . For example , the use of land for the whole range of industrial and commercial activities to which land can be put , could be continued , despite the service of an enforcement notice , so long as the owner or user demonstrated that an alternative site , where the activity could continue , had not become available . The enforcement procedures , essential to proper planning control , would be wholly undermined .

It can also be seen that the magistrates placed some weight upon an approach to the [ ORG ’s ] housing authority before he purchased ORG . It is not clear why the position prior to ownership of ORG was relevant but it seems likely the magistrates concluded that the [ applicant ’s ] ownership of a mobile home meant that he would not be regarded as " homeless " . The service of an enforcement notice requiring the [ applicant ] and his family to leave the site where they were living obviously gave rise to facts enabling the eligibility of the family ( including the [ applicant ] ) for the provision of housing accommodation provided by the local authority to be considered by the housing department of the [ Council ] . There had been no application to the housing authority by the [ applicant ] and his family after the service of the enforcement notice . Had the magistrates realised the true position I doubt that they would have come to the conclusion that the [ applicant ] had done everything reasonably possible to find alternative accommodation . In the course of argument on the appeal and in response to the court , counsel for the [ Council ] accepted that the position of the [ applicant ] and his family arising from their need to comply with the enforcement notice , meant that the issue was fit to be taken up by the housing department ... as soon as any application was made to it . ”

He referred also to previous cases on the section CARDINAL ) , noting that it had been held in ORG ( ORG v. Brockham DATE PLR ) :

“ that personal circumstances were admissible to establish incapacity , not that personal circumstances were admissible to establish an excuse or explanation for non - compliance or that compliance would give rise to particular hardship . It is clear the court was holding that for a defence to be made out , it must be established that , despite doing everything that could be reasonably expected , the defendant was nevertheless incapable of complying with the notice . PERSON ... foresaw the risk that arguments on the basis of impecuniosity could lead to magistrates upholding defences , which were outside the contemplation and true meaning of the statutory defence ... In my judgment PERSON provides no support for the factual conclusion reached by the magistrates in this case being treated as a defence . The < applicant > was not incapable of leaving the site . Whether or not he had an alternative site to go to , he was physically able to leave the site with his family . Further , as to his financial circumstances , although in selling the mobile home , he might only be able to provide himself with a home for a limited period of time , estimated at DATE , the hardship that that created for himself and his family did not establish that he was incapacitated by any “ impecuniosity ” . His “ impecuniosity ” did not prevent him from leaving the site , but plainly the requirement for them to go was capable of creating a measure of hardship . It has to be said , in light of their homelessness and the statutory duty upon housing authorities , it is likely to be substantially less than the magistrates had in mind ...

For these reasons ... I am satisfied that the magistrates erred and that this appeal must be allowed . ”

Mr Justice PERSON refused to certify the case as involving a point of law of general public importance for the purpose of further appeal to ORG .

In DATE the applicant was convicted by the magistrates and fined GBP CARDINAL and ordered to pay costs .

Meanwhile , on DATE , the applicant was granted by an inspector on appeal planning permission subject to conditions to change the use of the site to a gypsy caravan site for CARDINAL family occupying CARDINAL caravans . The applicant and his family remain on the site on the authority of that permission .

Section CARDINAL(CARDINAL ) of ORG DATE provides :

“ In proceedings against any person for an offence under section ( CARDINAL ) < failure to comply with an enforcement notice > , it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice . ”

Previous cases concerning the application of his defence include the following .

In ORG v. PERSON [ DATE ] CARDINAL PLR CARDINAL , ORG ( ORG ) refused the prosecuting authority ’s appeal by way of case stated from a magistrates court ’s decision to acquit the defendant on the basis of the defence . PERSON held that the magistrates were correct in taking the individual ’s personal circumstances into account and that where the individual was genuinely incapacitated , he did not have to show that he done something to try to comply with the enforcement notice . In that case the fact that the applicant was incapacitated physically by reason of a heart attack and was aged CARDINAL living alone , could not do the work himself or pay for it , was sufficient to make out the defence . It was emphasised that magistrates should be fairly rigorous an proof of incapacity .

In NORP v. PERSON [ DATE ] CARDINALPLR CARDINAL , ORG dismissed the applicant gypsy ’s appeal against conviction for breach of an enforcement notice in failing to quit the land which he occupied in his caravans . In dismissing the contention that the applicant had done everything he could be expected to comply by searching for alternative accommodation without success , the court found that the alleged facts relied on did not relate to any lack of capacity or inability to comply with the enforcement notice . Lord Justice PERSON noted that the system of planning controls , which existed in the interests of the community as a whole , was entrusted to democratically elected local authorities with rights of appeal to ministers accountable to ORG and aggrieved applicants had rights of recourse to the courts under statute or by way of judicial review , with scope on appeals from planning decisions for public hearings at which parties and interested members of the public were entitled to present their views and evidence . It was at that stage that the fact that the applicant was a gypsy and that there might be special needs of the applicant or other gypsies for camp sites might justify the grant of a planning permission which would be refused in the absence of those special considerations . Against that background , he stated that the meaning of section CARDINAL ) was

“ ... clear and unambiguous . Where it is within the power of the owner of the land to comply with the notice without the assistance of others , no question of a defence ... arises . Before a defence can arise ... the owner must show that compliance with the notice is not within his own unaided powers , otherwise no question of his having to secure compliance with the notice can arise . Thus , if there are other persons in occupation of the land , it is enough if he has done all that he could reasonably be expected to do to secure that they comply with the notice . If compliance would require , for example , some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it , he will have a defence ... ..

“ ORG - section ( CARDINAL ) is not concerned with a balance of social factors . It is not concerned with policy issues as arise in relation to the circumstances in which gypsies live . It does not enjoin the court to accept a defence on the footing only that it concludes that it would be a good thing if the defendant were not required to comply . Indeed it is not at all concerned with the defendant ’s wishes ; only with his capacity . It is there to protect an individual who shows that in reality and common sense he is unable to comply with the obligations imposed on him by an enforcement notice as owner . ...

The legislative scheme allows for the legitimate rights and expectations of gypsies to be taken into account at the appropriate stages of the procedure , including the stage of whether or not an enforcement notice should be upheld . Once an appropriate decision has been made in accordance with the law to uphold the enforcement notice , its enforcement involves no conflict with LAW . The subject matter of LAW is failure to comply with a lawful enforcement notice ... There is nothing in the present case which requires the appellant to desist from following a nomadic life or abandoning a communal existence with other gypsies . ”

In NORP v. DATE ] JPL CARDINAL , ORG allowed the appeal of a gypsy against conviction for breach of an enforcement notice requiring him to remove his caravan from his land . It held that the judge had been wrong to rule that there was no defence on the facts to be left to the jury , stating that it was for the jury to decide whether the defendant had done all that he reasonably could to secure compliance with the notice and that while there was little or no merit in the grounds advanced by the applicant ( e.g. whether he would be able to convince his family to move even if he left himself ) , the issue should be determined at a retrial .

In NORP v. PERSON [ DATE ] JPL CARDINAL , ORG rejected the appeal against conviction of a gypsy who had failed to remove his caravans , finding that the considerations in PERSON still applied as they had been endorsed in ORG which had been decided after LAW DATE had come into force . Mr Justice PERSON rejected the contention that the tribunal of fact was entitled to consider before convicting , in addition to whether or not he had done everything reasonable to comply in his personal and financial circumstances , whether the alleged interference with the defendant ’s right to respect for his traditional way of life was justified under LAW .

“ The question of the rights of the applicant , in relation to home and family life , was fully considered at the earlier stage of the planning process , by the decisions of the planning authorities and the CARDINAL appeals therefrom , when the inspectors decided against the applicants ... ”


The applicant is a NORP citizen , born in DATE in GPE . At the time of the facts , the applicant was an officer with the rank of captain .

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

In DATE investigations were initiated against a number of persons including the applicant , who was the ORG Commander of Çorlu , concerning various smuggling incidents in this region .

In an indictment dated DATE , ORG charged only the applicant , under LAW , with abuse of office by assisting and protecting smugglers .

On DATE ORG convicted the applicant for abuse of office and sentenced him to DATE and DATE imprisonment and to a heavy fine .

The applicant appealed . On DATE ORG quashed the judgement delivered by ORG , indicating that the classification of the offence was incorrect and that the investigation was incomplete . According to ORG , the applicant ought to have been tried for collective smuggling .

ORG joined the applicant ’s case with another case of collective smuggling initiated against CARDINAL co - accused . ORG , inter alia , took oral evidence from various witnesses , consulted experts and examined extracts from customs registries and customs service reports .

On DATE the ORG convicted the applicant and the other co - accused for collective smuggling and sentenced the applicant to DATE and DATE imprisonment . The ORG found that the applicant and the other accused had arranged the entry into GPE of a truck loaded with smuggled goods .

On DATE ORG upheld the decision of ORG . It noted that ORG had examined the charges as well as the defence , evaluated all the evidence submitted to it and delivered an impartial judgment .

On DATE ORG at ORG rejected the applicant 's petition for rectification of ORG judgment dated DATE .

On DATE the ORG admitted the applicant 's request for the reopening of the trial . Accordingly , the court initiated new proceedings . On DATE ORG convicted the applicant confirming its former decision dated DATE . ORG considered that the new elements submitted by the applicant could not have any effect on the reasoning of the judgment of CARDINAL DATE . The applicant appealed . On DATE ORG upheld the decision of ORG dated DATE .

On DATE ORG at ORG rejected the applicant 's petition for rectification of ORG decision .

On DATE ORG rejected the applicant 's second petition for the reopening of his trial .


Violation of Art. 14+8;Just satisfaction reserved

PERSON is a NORP national resident in GPE . She is the recognised illegitimate daughter of PERSON , who died unmarried in DATE . He was the son of the late Camiel GPE and his late wife PERSON née PERSON , who also had CARDINAL other children , PERSON and PERSON . They died in DATE and DATE respectively , PERSON unmarried and without issue , PERSON survived by CARDINAL children of his marriage , PERSON and PERSON .

The applicant ’s grandparents , who had brought her up after her father ’s death , both died intestate , PERSON née PERSON on DATE and PERSON on DATE . As the grandmother ’s heirs had remained co - owners in undivided shares up to the grandfather ’s death , the CARDINAL estates were realised and distributed to the legitimate grandchildren PERSON and PERSON in a single procedure . PERSON was excluded under the old LAW ( see paragraph CARDINAL below ) .

On DATE she brought an action to claim a share in the estates before ORG . In a judgment of DATE that court allowed her the same rights as a legitimate descendant in the estates in question .

It based its decision in particular on paragraph CARDINAL of the judgment given by ORG in the ORG case on DATE ( Series A no . CARDINAL , p. CARDINAL ) , and took the view that " the prohibition on discrimination between legitimate and illegitimate children as regards inheritance rights [ was ] formulated in the judgment sufficiently clearly and precisely to allow a domestic court to apply it directly in the cases brought before it " .

The legitimate grandchildren appealed and on DATE ORG set aside the judgment . It held in particular that :

" in so far as LAW article CARDINAL) entails negative obligations prohibiting arbitrary interference by the ORG in the private or family life of persons residing within its territory , it lays down a rule which is sufficiently precise and comprehensive and is directly applicable , but this is not the case in so far as DATE ( article CARDINAL) imposes a positive obligation on ORG to create a legal status in conformity with the principles stated in the said provision of the LAW ; ( ... ) given that on this point ORG has various means to choose from for fulfilling this obligation , the provision is no longer sufficiently precise and comprehensive and must be interpreted as an obligation to act , responsibility for which is on the legislature , not the judiciary . "

ORG thus refused to give direct effect to the passages in the ORG judgment relating to an illegitimate child ’s inheritance rights on intestacy with respect to relatives of the parent by whom he or she has been recognised .

ORG concurred substantially with the reasons for this decision , which was moreover consistent with its own case - law , and dismissed the applicant ’s appeal on CARDINAL DATE .

The former Articles CARDINAL and CARDINAL of the Civil Code provided as follows :

" Illegitimate children shall not be heirs ; the law does not allow them any rights in the estates of their deceased father and mother unless they have been legally recognised . It does not allow them any rights in the estates of the relatives of their father or mother . "

" Illegitimate children may receive by disposition inter vivos or by will no more than their entitlement under the title ‘ Inheritance on Intestacy’ . "

These provisions were repealed by a PERSON of DATE , which came into force on DATE . That PERSON also inserted into LAW a new LAW , according to which :

" Whatever the method used to establish affiliation , children and their descendants shall have the same rights and obligations in respect of their father and mother and their relatives by blood and by marriage , and the father and mother and their relatives by blood and by marriage shall have the same rights and obligations in respect of the children and the children ’s descendants . "

LAW laid down the following transitional provisions :

" The provisions of this PERSON shall apply to children born before the date of its coming into force and still alive at that date , but shall not give rise to any rights in respect of successions taking place before that date .

However , the validity of acts and distributions done before the coming into force of this PERSON , under which a child born out of wedlock has been accorded rights greater than those allowed him by the provisions repealed by this PERSON , shall not be subject to challenge . "

Regard should also be had to Articles CARDINAL , CARDINAL and CARDINAL of the Civil Code :

" Succession shall take place on death . "

( wording in force at the time of the grandmother ’s death )

" The legitimate heirs shall acquire as of right the possessions , rights and legal actions of the deceased , subject to the obligation to pay all the debts of the estate . Illegitimate children , the surviving spouse and the ORG must obtain a court order for possession in accordance with the procedures to be specified . "

( wording in force at the time of the grandfather ’s death )

" The legitimate heirs shall acquire as of right the possessions , rights and legal actions of the deceased , subject to the obligation to pay all the debts of the estate . Illegitimate children and the ORG must obtain a court order for possession in accordance with the procedures to be specified . "

( wording following the PERSON of DATE )

" The heirs shall acquire as of right the possessions , rights and legal actions of the deceased , subject to the obligation to pay all the debts of the estate . The ORG must obtain a court order for possession in accordance with the procedures specified below . "

" Each co - heir shall be deemed to have succeeded solely and immediately to all the property included in his share or which has come to him on a sale of undivided joint property , and never to have had ownership of the other property in the estate . "


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained in GPE . He was represented before the ORG by Mr U. ORG , a lawyer practising in GPE .

On DATE ORG opened preliminary investigations against the applicant suspected of intentional homicide ( Totschlag ) and murder ( PERSON ) . At that time the applicant had already been held in pre - trial detention in GPE on other grounds .

On DATE the GPE ORG issued a search warrant in respect of the applicant ’s person , vehicle and LOC . The GPE ORG dismissed the applicant ’s appeal against that warrant .

In the course of the investigation rogatory letters ( PERSON ) and a request for the applicant ’s questioning were lodged . The ORG decided that the detained applicant could be handed over for questioning by the investigating authorities .

On DATE Mr. B. , the applicant ’s lawyer , appointed himself counsel chosen by the applicant ( Wahlverteidiger ) and requested that the proceedings be discontinued . Mr. B. lodged an appeal against the ORG decision and consulted the case files . He then informed ORG that the applicant would refuse to give evidence and ORG abstained from questioning .

On DATE Mr. B. lodged a request to be appointed as the applicant ’s official defence counsel ( Pflichtverteidiger ) . He relied on section CARDINAL § ( CARDINAL ) no . CARDINAL and § ( CARDINAL ) of LAW and held that there was a legal obligation to appoint an official defence counsel in the applicant ’s case and that ORG was obliged to make the corresponding request with the competent court .

On DATE ORG informed the applicant ’s representative that it did not intend to request that he be appointed official defence counsel during the preliminary investigation proceedings . It underlined that he had already been appointed by the applicant as his defence counsel . There were no grounds at this stage requiring him to be appointed officially .

On DATE the Cologne ORG dismissed the applicant ’s representative ’s complaint against this decision , holding that the fact that legal representation was compulsory during later trial proceedings did not entail an obligation to appoint an official defence counsel for the whole preliminary investigation nor for certain investigation measures . Moreover , LAW benefitted from a certain margin of appreciation when appointing defence counsel . The appointment of defence counsel during preliminary investigations was necessary only if there were concrete grounds requiring legal assistance at an early stage , which was not the case at present .

On DATE the ORG refused to admit his constitutional complaint for adjudication . It held that it was inadmissible with regard to the principle of subsidiarity . The alleged violation of constitutional law by ORG refusal to officially appoint defence counsel could still be challenged in the main proceedings , notably by virtue of an appeal on points of law , without the applicant incurring any major disadvantages .

The relevant provisions of LAW read as follows :

“ Section CARDINAL

( CARDINAL ) ...

( CARDINAL ) If the accused does not yet have defence counsel , he shall be assigned defence counsel for the duration of his pre - trial detention , if its execution has lasted for DATE and the public prosecutor ’s office or the accused or his statutory representative has requested it . The accused shall be informed about his right to submit a request . Sections CARDINAL , CARDINAL and CARDINAL shall apply mutatis mutandis .

( CARDINAL ) ... ”

“ Section CARDINAL

( CARDINAL ) The assistance of defence counsel shall be mandatory if :

the main hearing is held at first instance at FAC or at ORG ;

the accused is charged with a serious criminal offence ;

the accused has been detained for DATE on the basis of a judicial order or with the approval of a judge and will be detained until DATE prior to the commencement of the main hearing ;

( CARDINAL ) In other cases the presiding judge shall appoint defence counsel upon application or ex officio if the assistance of defence counsel appears necessary because of the seriousness of the offence or because of the difficult factual or legal situation ( ... ) . ”

“ Section CARDINAL

( CARDINAL ) In the cases of LAW ( CARDINAL ) and ( CARDINAL ) , as soon as an indicted accused without defence counsel has been requested according to LAW to reply to the bill of indictment , defence counsel shall be appointed .

( CARDINAL ) ...

( CARDINAL ) Defence counsel may be appointed during the preliminary proceedings . The public prosecutor ’s office shall request such an appointment if , in its opinion , the assistance of defence counsel pursuant to LAW ( CARDINAL ) or ( CARDINAL ) is necessary during the court proceedings . ( ... ) .

( CARDINAL ) The judge presiding over the court with jurisdiction in respect of the main proceedings or over the court to which the case has been assigned shall decide on the appointment . ”


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .

On CARDINAL DATE the applicant filed an action with the PERSON I ORG . He challenged the validity of several legal acts relating to the purchase and subsequent donation of a flat in which he had earlier lived with his former wife .

On DATE the judge invited the defendants to submit their comments on the action . The applicant was invited to pay the court fee . CARDINAL defendants submitted their comments in DATE and DATE respectively .

On DATE the judge asked the applicant to pay a supplement to the court fee . She also requested files from a different court . The applicant paid the sum due on DATE .

On DATE the third defendant submitted comments on the action .

A hearing was held on DATE . The case was adjourned .

On DATE the court heard the parties . The court admitted a further defendant to the proceedings . That defendant submitted observations on the applicant ’s action on DATE .

On DATE the case was adjourned as CARDINAL defendants had to be summoned . The same defendants failed to appear on DATE . The court imposed a disciplinary fine on CARDINAL of them as he had failed to excuse his absence .

On DATE the case was again adjourned due to the absence of the second defendant . It was not established that the summons had been duly served . On DATE that defendant informed the court of her new address in GPE .

On DATE the judge requested that the second defendant be heard by a NORP court . On DATE ORG of GPE informed ORG that the defendant resided at her address in PERSON ( GPE ) at that time .

On DATE ORG dismissed the applicant ’s action .

The applicant appealed on DATE .

On DATE ORG judge invited the applicant to pay the fee for the appellate proceedings . She also invited the defendants to comment on the appeal . The defendants replied DATE and DATE .

In the meantime , on DATE , the applicant asked for an exemption from the obligation to pay court fees . On DATE ORG granted the request .

The appeal was submitted to ORG on DATE .

ORG held hearings on DATE and DATE . On the latter date it quashed the first - instance judgment . The file was returned to ORG on DATE .

At the judge ’s request of DATE the applicant specified his claim on DATE .

On DATE ORG again dismissed the applicant ’s action .

The applicant appealed on CARDINAL DATE and the file was transferred to ORG on DATE .

On DATE ORG scheduled a hearing for DATE , which was later postponed until DATE .

On DATE ORG upheld ORG decision on the merits . It quashed the part of the decision as regards costs and remitted the case to ORG .

On DATE the file was transferred to ORG which issued its decision on costs on DATE .

CARDINAL of the defendants appealed and the case file was transferred to ORG on DATE .

On DATE ORG upheld ORG ruling on costs . The decision was served on the applicant ’s lawyer on DATE , and thus became final .

The applicant filed a complaint with ORG alleging a violation of LAW in that there had been unjustified delays in the proceedings before ORG .

On DATE ORG found that ORG had violated the applicant ’s right to a hearing without unjustified delay . ORG held that the case was not complex and that by his conduct the applicant had not contributed to the length of the proceedings . As to the conduct of ORG , ORG found that it had remained inactive without any justification from DATE to DATE , that is for DATE .

ORG noted that the applicant had claimed CARDINAL NORP in this respect .


CASE OF WILKINSON AND ALLEN v. THE UNITED KINGDOM

Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

At the time of the events in question , both applicants were serving in the army and were tried by district courts - martial convened pursuant to LAW DATE .

Mr PERSON pleaded guilty to the armed forces’ disciplinary offence of absence without leave ( contrary to section CARDINAL(a ) of the Army Act DATE ) . Although ORG upheld his petition against the custodial part of his sentence , the charge for which he was convicted carried a potential sentence of CARDINAL years’ imprisonment ( see paragraph CARDINAL below ) .

Mr PERSON pleaded guilty to CARDINAL charges of possession of controlled drugs contrary to ORG DATE , these being civilian criminal offences . ORG reduced the custodial element of his sentence to CARDINAL months’ imprisonment .

The relevant provisions of the Army Act DATE are set out in the judgment of ORG in the PERSON case ( PERSON v. the GPE judgment of DATE , Reports of Judgments and Decisions CARDINAL-I , § § DATE ) .

Central to the system under LAW was the role of the “ convening officer ” . This officer ( who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving ) assumed responsibility for every case to be tried by court - martial . He or she had the final decision on the nature and detail of the charges to be brought and the type of court - martial required , and was responsible for convening the court - martial .

The convening officer would draw up a convening order , which would specify , inter alia , the date , place and time of the trial , the name of the president and the details of the other members , all of whom he could appoint . Failing the appointment of a judge advocate by the Judge Advocate General ’s Office , the convening officer could appoint CARDINAL . He also appointed , or directed a commanding officer to appoint , the prosecuting officer .

Prior to the hearing , the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate , and could indicate the passages which might be inadmissible . He procured the attendance at trial of all witnesses to be called for the prosecution . When charges were withdrawn , the convening officer ’s consent was normally obtained , although it was not necessary in all cases , and a plea to a lesser charge could not be accepted from the accused without it . He had also to ensure that the accused had a proper opportunity to prepare his defence , legal representation if required and the opportunity to contact the defence witnesses , and was responsible for ordering the attendance at the hearing of all witnesses “ reasonably requested ” by the defence .

The convening officer could dissolve the court - martial either before or during the trial , when required in the interests of the administration of justice . In addition , he could comment on the proceedings of a court - martial . Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court , although in an exceptional case , where a more public instruction was required in the interests of discipline , they could be made known in the orders of the command .

The convening officer usually acted as confirming officer also . A court - martial ’s findings were not effective until confirmed by the confirming officer , who was empowered to withhold confirmation or substitute , postpone or remit in whole or in part any sentence .

Since the applicants’ trials , the law has been amended by LAW ( see the above - mentioned GPE v. the GPE judgment , § § CARDINAL ) .

A person convicted of absence without leave shall be liable to imprisonment for a term not exceeding DATE ( section CARDINAL(a ) of the DATE Act ) .


The applicant was born in DATE and lives in PERSON .

On DATE the applicant was detained on remand until DATE on suspicion of CARDINAL attempted murders . The court based its detention order on a reasonable suspicion that the applicant had committed the offences , on the severity of the likely penalty , which gave rise to a fear that the applicant would obstruct the proceedings , and on the risk of the applicant ’s going into hiding as he had done previously .

On an unknown date a bill of indictment was lodged . The applicant was charged with CARDINAL attempted murders and possession of an unlicensed weapon .

Subsequent decisions on the extension of the applicant ’s pre - trial detention were taken on DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE and DATE .

In all the above - mentioned decisions the courts relied on the same grounds for detention as those given in the first detention order . In some of them the courts also referred to the complexity of the case , the need to conduct further investigations , the probability of collusion between the applicant and other co - accused and exertion of unlawful pressure on witnesses by the applicant . They also stressed that the applicant had previously gone into hiding .

The applicant appealed against the decisions extending his detention on several occasions . All of his appeals were dismissed .

On many occasions the applicant requested release from detention or the imposition of a more lenient preventive measure . His requests were dismissed .

Hearings were held on the following dates : CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE .

On DATE ORG changed the legal qualification of the offences and convicted the applicant of attempted robbery endangering the lives others as well as possession of a weapon . It sentenced him to CARDINAL years’ imprisonment . Both the prosecutor and the applicant lodged appeals .

On DATE the ORG quashed the judgment and remitted the case .

A hearing was held on DATE . A hearing of DATE was cancelled due to a lay judge ’s absence . A hearing of DATE was adjourned since the accused who had been detained had not been transported to the hearing , and a hearing of CARDINAL DATE was adjourned since the applicant had challenged the impartiality of the judges . Subsequent hearings were held on DATE , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE and DATE .

On DATE ORG gave a judgment . It convicted the applicant of CARDINAL attempted murder and acquitted him of the other attempted murder and possession of an unlicensed weapon . The prosecutor and the applicant appealed .

On DATE ORG quashed the judgment and remitted the case .

Subsequent hearings were held on DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , CARDINAL DATE and DATE .

On DATE ORG convicted the applicant of CARDINAL attempted murders and possession of a weapon and sentenced him to CARDINAL years’ imprisonment . On DATE the applicant lodged an appeal which he had drafted himself . On DATE the applicant appealed through a lawyer .

On DATE ORG upheld the judgment . The judgment is final .

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


Violations of Art. 6-1;Violation of P1-1;Violation of Art. 13+P1-1;Pecuniary and non-pecuniary damage - financial awards (global) and Government to return the plot of land;Costs and expenses - claim dismissed

The applicant was born in DATE and lives in GPE .

The relevant domestic proceedings concern an application for the restitution of land .

NORP In pre - war GPE the applicant ’s late father had owned a bakery in GPE and a plot of land measuring QUANTITY In DATE the NORP authorities demolished the building and expropriated the land .

On DATE ORG restored the applicant ’s property rights over his late father ’s property pursuant to ORG hereinafter , LAW ) . The decision became final and binding at the latest on DATE .

As it was unable to return the original property , ORG decided on DATE that the applicant had a right to receive compensation in kind for the original property . It allocated him a piece of land situated QUANTITY from the centre of GPE and measuring QUANTITY m. The land was divided into CARDINAL plots measuring , respectively , QUANTITY m. ( hereinafter , the smaller plot ) and QUANTITY m. ( hereinafter , the larger plot ) .

By decision no . CARDINAL of DATE ORG on ORG ( hereinafter referred to as the “ ORG ” ) upheld ORG decision .

On DATE the applicant ’s title to the land was entered in ORG .

In DATE and DATE a series of possession orders concerning the CARDINAL plots of land were issued by ORG and ORG . However , the applicant was unable to recover possession from the occupants .

On DATE he concluded a preliminary contract to sell the smaller plot .

GPE , a former member of an agricultural cooperative , had previously been granted under PERSON no . CARDINAL of DATE the right to use the smaller of the CARDINAL plots allocated to the applicant .

On an unspecified date she brought a civil action in the ORG claiming full title over the smaller plot under PERSON no . DATE of DATE . She also asked ORG to set aside the GPE ’s decision of DATE in so far as it related to that plot .

On DATE ORG set aside the ORG ’s decision relating to the smaller plot on the grounds that the ORG had first to award compensation to the user and to the former owner of the land .

The applicant lodged an appeal with ORG claiming full title to the plot . He argued that , when the Commission reached its decision , the plot was State property that was available for allocation to former owners in lieu of compensation . He added that ORG was merely a user of the land at the time .

On DATE ORG allowed the applicant ’s appeal , quashed ORG decision as being defective in law and upheld the validity of the ORG ’s decision concerning the applicant ’s title .

On DATE ORG ) deciding on the merits , upheld the applicant ’s rights over the smaller plot of land that had been allocated as compensation for the original property . The judgment became final and binding on an unspecified date .

On an unspecified date , while the enforcement proceedings were in progress , ORG lodged an application with ORG for supervisory review ( PERSON në interes të ligjit ) of the merits of ORG ) judgment of CARDINAL DATE and of ORG judgment of DATE , on the grounds that they conflicted with substantive law .

The application for supervisory review was examined by ORG ) . On DATE , CARDINAL half years after the final decision , ORG granted the application . On DATE , it quashed , by a majority , the judgments of DATE and CARDINAL DATE in favour of the applicant , and upheld ORG decision of DATE dismissing the applicant ’s claims relating to the smaller plot of land . It found that the ORG ’s decision had been based on a misinterpretation of the substantive law ( Property Act DATE ) .

The applicant was neither informed of the supervisory - review proceedings nor invited to attend the hearings before ORG . He was not served with ORG judgment within the DATE time - limit for appealing and so did not appeal against it .

Of the CARDINAL ORG judges who decided the case on DATE , CARDINAL ( PERSON , PERSON . and GPE ) had been members of the panel which on DATE had decided the merits of the case . A further CARDINAL ( Th . PERSON , GPE , and PERSON ) had sat on the panel which on DATE had decided the merits of the case in the proceedings concerning both plots of land ( see paragraph CARDINAL below ) . The first CARDINAL judges were called upon to rule in the supervisory - review proceedings on their alleged misinterpretation of substantive law while the other CARDINAL judges had to determine the merits of the case for the second time in the same proceedings .

In DATE ORG ( PERSON i Larte i Shtetit ) , acting on its own behalf and at the instance of S. SH . , the user of the larger plot of land allocated to the applicant , brought an action in ORG for an order setting aside the ORG ’s decision of DATE in its entirety , on the ground that it had exceeded its jurisdiction by allocating land to the applicant .

On DATE ORG set aside the ORG ’s decision in its entirety as being defective in law . It also held that the ORG had an obligation to pay the applicant compensation under LAW for a plot of land measuring QUANTITY m.

On an unspecified date the applicant lodged an appeal with ORG seeking the reinstatement of the ORG ’s decision allocating him the land .

On DATE ORG dismissed the applicant ’s appeal and upheld ORG decision .

On an unspecified date the applicant lodged an appeal with ORG ) arguing that the lower courts had failed to rule on the question of the ORG title to the land .

On DATE ORG ) , deciding the merits of the case , upheld ORG judgment on the ground that the Commission had exceeded its jurisdiction by deciding on the form of compensation the applicant should receive for the loss of his original property . It noted that pursuant to a ORG of ORG decision of CARDINAL DATE , Commissions were to be set up by the municipal councils to assess compensation for land situated in tourist areas . These ORG had yet to be established . Lastly , ORG upheld the applicant ’s right under LAW to obtain the payment of compensation for a QUANTITY . m. plot of land .

The applicant lodged an appeal with ORG under Article CARDINAL ( f ) of the LAW , arguing that ORG judgments of DATE and DATE were unconstitutional .

The appeal was declared inadmissible by ORG on DATE pursuant to LAW , as being “ outside its jurisdiction ” .

The applicant says that an apartment block has now been built on the larger plot of land by third parties and the apartments sold to , and occupied by , new owners . The smaller plot is occupied by temporary structures . The applicant has not received any compensation from the authorities .

LAW , in so far as relevant , reads as follows :

“ CARDINAL . The right of private property is protected by law . CARDINAL . Property may be acquired by gift , inheritance , purchase , or any other ordinary means provided for by LAW . CARDINAL . The law may provide for expropriations or limitations in the exercise of a property right only in the public interest . CARDINAL . Expropriations or limitations of a property right that are equivalent to expropriation are permitted only if fair compensation is provided . CARDINAL . A complaint may be filed in court to resolve disputes regarding the amount or extent of compensation due . ”

“ In order to protect their constitutional and legal rights , freedoms and interests , or to defend criminal charges , everyone shall have the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”

“ State bodies shall comply with judicial decisions . ”

“ The Constitutional Court shall decide : ... ( f ) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

“ CARDINAL . Within DATE from the date this LAW enters into force , the ORG , guided by the criteria of LAW , shall issue laws for the just resolution of various issues relating to expropriations and confiscations that were effected before the approval of LAW .

Laws and other normative acts relating to expropriations and confiscations enacted before the entry into force of this LAW shall continue to apply provided they are compatible with LAW . ”

Under LAW Procedure DATE , which was in force at the material time , judgments became final in the following circumstances :

“ Court judgments shall become legally binding on the expiration of the time - limit for lodging an appeal if no such appeal has been lodged . If the judgment is not quashed on an appeal to a higher court , it shall become legally binding when the higher court delivers its decision ... ”

Pursuant to the provisions in force at the material time supervisory review ( PERSON në interes të ligjit ) was an extraordinary remedy that enabled courts to reopen proceedings after a judgment had become final . DATE and its abrogation by LAW no . CARDINAL of CARDINAL DATE the supervisory - review procedure underwent several legislative changes .

“ Final judgments , decisions and rulings of the colleges of ORG shall be amenable to supervisory review in the interests of the law for the reasons set forth in section CARDINAL ( a ) , ( b ) and ( c ) on an application lodged by the parties to the proceedings within DATE from the moment the decision becomes binding .

The application for supervisory review will firstly be examined by a preliminary review panel of CARDINAL judges and then by the full ORG ) . ... Judges of ORG who sat as members of the division that delivered the judgment , decision or ruling or of the preliminary review panel shall not sit on the panel that conducts the supervisory review of the final judgment ... ”

ORG ( GPE për kthimin dhe kompensimin e pronës ) has undergone several amendments during DATE . The main changes to LAW of DATE came about as a result of CARDINAL laws which entered into force respectively in DATE and DATE . The original LAW and these CARDINAL amending Acts will hereinafter be referred to as the “ LAW DATE ” the “ Property Act DATE ” and the “ Property Act CARDINAL ” respectively .

The relevant provisions of each of these laws can be summarised as follows :

Under LAW DATE former owners of properties expropriated by the relevant regime and the legal heirs of such owners had the right to claim ownership of the original properties . Upon ownership being determined they were entitled either to the restitution of the original immovable property or to an award of compensation either in kind ( up to a maximum of QUANTITY . m ) or in value if any of the following conditions was met : the alleged property ( CARDINAL ) was pasture , meadow , forestry land , or agricultural or non - agricultural land ; ( CARDINAL ) was not subject to PERSON no . CARDINAL of DATE ; ( CARDINAL ) was currently ORG - owned ; or ( CARDINAL ) had been designated as suitable for construction and was situated within the boundaries of a city .

Section CARDINAL of the Act provided for the following forms of compensation in respect of property which could not be returned : ( a ) State bonds , equivalent to the compensation owed , with a first option over shares in ORG enterprises being privatised by the ORG or in other activities carried on through the granting of loans ; ( b ) an equivalent plot of land or a building site near to an urban area , in accordance with the general urban - development regulations ; and ( c ) an equivalent plot of land in a tourist zone , in accordance with the general urban - development regulations .

ORG had power to define detailed rules for determining how such compensation should be provided and the applicable time - limits .

The DATE Act also instituted the Commission on ORG ( PERSON i GPE dhe PERSON ) as the competent administrative body to deal with former ORG claims to restitution and compensation . However , it did not provide a time - limit within which a decision could be appealed against , so preventing it from even becoming binding .

The Property Act CARDINAL , which repealed the previous version , provided for CARDINAL forms of restitution of immovable property , namely the return , under certain circumstances , of the original property and compensation in the event of the authorities being unable to return the original property . Restitution was not limited in size . The LAW provided for CARDINAL forms of compensation : ( a ) property of the same kind ; ( b ) property of any other kind ; ( c ) shares in ORG - owned companies ; ( d ) the value of a ORG - owned property in the course of privatisation , and ( e ) a sum of money corresponding to the value attributed to the property at the time of the decision ( section CARDINAL ) . The Act instituted ORG ( PERSON per GPE dhe GPE e Pronave ) , composed of CARDINAL members elected by ORG . Its role was to decide on the lawfulness of district GPE decisions on restitution and compensation claims ( sections DATE ) . ORG was to establish the rules and the criteria to be applied ( sections CARDINAL ) .

Section CARDINAL provided for the enforcement of decisions awarding compensation within DATE of DATE . Following its entry into force , anyone entitled to claim restitution or compensation was required to lodge an application with ORG by DATE . The LAW granted the ORG a discretion to decide which form of compensation should be granted , but applicants could express their preference in writing . An appeal lay against ORG decision to ORG ( section CARDINAL ) and to the district courts within DATE of the date of issue of the ORG ’s decision .

On DATE ORG enacted legislation setting out the method by which immovable property would be valued for compensation purposes . Its implementation was left to ORG , which was to issue the site plans allowing the properties to be valued .

In order to comply with the committee ’s awards of pecuniary compensation , section CARDINAL of the CARDINAL Act provided for the establishment of a DATE ORG , whose aim was to provide financial support for such awards . LAW was examined by both the LAW and ORG .

On DATE ORG ) concluded that LAW had no retroactive effect and that its provisions could therefore not have any impact on property rights recognised by administrative or court decisions dating from before its entry into force .

On DATE LAW was amended by LAW , which entered into force on DATE . It provided , inter alia , for the establishment of the Agency for ORG , a new body competent to decide restitution and compensation claims ( section CARDINAL ) . The new law repealed sections CARDINAL ( CARDINAL ) , DATE and DATE CARDINAL Act which , inter alia , laid down the procedure for the enforcement of compensation awards .

Law no . DATE of DATE conferred on former members of agricultural cooperatives the right to request the title to land they were farming .