Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms D. Rone , a lawyer practising in Rīga . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

NORP The creation of GPE was proclaimed on DATE . Different types of property rights were recognised , including the ownership of residential buildings .

A large - scale entry of the NORP army into GPE took place in DATE . After the lawful government of the country was overthrown and NORP rule was imposed by force ( see , mutatis mutandis , PERSON and GPE v. GPE DATE . ) , nos . CARDINAL and CARDINAL , ORG CARDINALI ) , the nationalisation of property began . Property was expropriated without any compensation ( see paragraph CARDINAL below ) .

NORP The building located at CARDINAL PERSON street was amongst the buildings nationalised . From DATE the applicant lived in an apartment located in that building on the basis of a lease agreement concluded on CARDINAL DATE ( “ the DATE lease ” ) with ORG of LOC ( PERSON pilsētas PERSON rajona namu pārvalde ) . The agreement was a pre - typed standard text , not indicating the amount of rent payable . It entitled the applicant and his family members to rent the apartment for an indefinite period of time . Under NORP law the amount of rent payable was not set by the parties to the lease but by the ORG ’s administrative authorities . By a decision of CARDINAL DATE , the building located at CARDINAL PERSON street was returned to its former owner . The applicant continued to live in the apartment located in that building until DATE , when he moved out .

On CARDINAL DATE ORG , the legislative assembly elected on DATE in DATE , adopted the Declaration on the Restoration of Independence of the Republic of Latvia . On DATE ORG passed LAW on GPE , proclaiming full independence with immediate effect ( see PERSON GPE [ ORG ] , no . CARDINAL , § § DATE , CARDINAL DATE ) .

On DATE ORG adopted the Law on Denationalisation of Real Estate , whereby the decrees on nationalisation issued after DATE were declared null and void . The nationalised buildings were to be returned to their former owners or their heirs . The former lease agreements concluded with tenants in those buildings under NORP law continued to be binding in their entirety until DATE , and from then on only in so far as the term of lease was concerned . The amount of rent payable was determined by the ORG . During DATE after restoration of their property rights , owners could not evict tenants without allocating them another place of residence . After that period eviction could take place in accordance with ORG . On DATE ORG passed the PERSON on the Return of Real Estate to ORG .

On DATE the Decision on Entry into ORG of these CARDINAL laws ( “ ORG Decision ” ) was enacted . It required ORG to draft a law on compensation and submit it to ORG by DATE , and to draft and stipulate regulations for credit arrangements for tenants . In DATE ORG and its respective committees examined a draft law “ On ORG and Compensation ” , but that law was never enacted . The draft did not include any reference to tenants’ right to receive compensation . On DATE ORG of ORG ( PERSON padomes PERSON ) rejected the draft because it was necessary to specify its sphere of application . It also had to be aligned with the provisions of ORG and LAW . ORG was instructed to improve the draft within DATE and re - submit it to ORG . It appears that this task was never completed . It should be noted , however , that on DATE members of ORG ) submitted for examination a draft law on compensation for tenants . On DATE that draft was accepted at first reading in one of the last sessions of the ORG before the expiry of its term . The draft law was never reviewed at second and third reading and was therefore never passed .

Another part of the property reform in DATE was the privatisation of ORG and municipally owned property . Those who resided in such buildings took this opportunity to acquire property rights over apartments located in them through privatisation .

In accordance with ORG , enacted on DATE , the amount of rent payable by tenants in denationalised buildings or those returned to their former owners was to be established on the basis of a written agreement , but could not exceed the maximum amount determined by the ORG . That law was amended on several occasions . On DATE ORG declared the statutory rent limits unconstitutional and declared them void as of DATE .

From DATE owners were entitled to increase rent by serving notice on their tenants of their intention to do so . Tenants could challenge it by lodging a claim with the civil courts . The courts would then decide whether the amount of rent was warranted and adequate ; owners were accordingly required to justify the amount requested . Evictions could not take place without a court order , and tenants were entitled to receive advance notice , and to the opportunity to be heard , before being evicted .

On DATE the applicant moved out of the apartment allegedly because he could not afford to pay the rent . He did not initiate proceedings in the civil courts over the amount of the rent . Nor was he subject to eviction proceedings . According to the information provided by the Government , since DATE the applicant is residing in another dwelling , namely , a house entered into ORG as his spouse ’s property in part ( PERCENT ) ( CARDINAL domājamās daļas ) . The applicant did not contest this .

On DATE the applicant lodged a civil claim with ORG ( PERSON ) against the ORG represented by ORG kabinets ) and against ORG ( PERSON dome ) . He requested the court to compel ORG to comply with ORG in his case and to allocate him an equivalent apartment or grant compensation to acquire such an apartment in the amount of NORP lati ( ORG ) CARDINAL ( approximately EUR CARDINAL ) .

On DATE the regional court dismissed the applicant ’s claim without examining it on its merits . The court found that the applicant had lodged his complaint against the ORG represented by ORG and against ORG and , in substance , had requested that an action of executive power ( action or omission of a public authority ) be subjected to judiciary control . According to the court , such claims fell within the jurisdiction of the first - instance administrative district court ; there was no dispute over a civil right . The applicant submitted an ancillary complaint against that decision .

On DATE ORG of ORG ( PERSON tiesas PERSON tiesu palāta ) quashed the decision of the regional court and issued a new ruling . The applicant ’s claim was rejected on the ground that it was not subject to examination by a court . The court held , inter alia :

“ ... [ the applicant ] in fact requests the allocation of an apartment but such issues are to be resolved in local municipalities – in the present case ORG , in accordance with the Law on State and Municipal Assistance Concerning Apartment Issues ...

[ The applicant ’s ] claim would be subject to examination by an administrative court if ORG were to adopt a decision unfavourable to him , in which case there would be grounds for appeal against the decision under the provisions of ORG .

Thus , administrative proceedings should be initiated before the administrative body concerned , whose decision can be appealed against [ in a court ] in accordance with the provisions of LAW ” .

The applicant submitted an ancillary complaint against that decision .

On DATE the ORG of ORG ( PERSON tiesas PERSON ) upheld the decision of its ORG . The court stated that :

“ The allocation of a place of residence and alternative claims for compensation do not fall within the competence of a court ....

In his claim , [ the applicant ] has linked his considerations with ORG of DATE . But he has not taken into account that the legal provision [ contained therein ] does not provide for the existence , change or termination of a substantive legal relationship between the applicant , on the one hand , and ORG [ or ] ORG [ on the other hand ] ...

[ The applicant ’s ] claim relates to issues falling outside the competence of the judiciary ” .

On DATE the applicant lodged a claim with ORG ( ORG rajona tiesa ) against the ORG represented by ORG and against ORG . He submitted that ORG and ORG were responsible for the fact that the apartment he was renting had been handed over to another person and that his right to lease had been breached ; he had suffered non - pecuniary and pecuniary damage . He requested the court to compel ORG and ORG to comply with ORG and other legislative enactments and grant him compensation in the amount of ORG CARDINAL to acquire an apartment of the same standard and ORG for non - pecuniary damage . He also complained that the binding regulations of ORG under which eligibility for registration to receive offers of lets of apartments owned by the municipality depended on DATE income were discriminatory .

The applicant ’s claim was examined in the district court , the regional court and ORG , which adopted a final decision on DATE . ORG of the ORG of ORG ( PERSON tiesas ORG lietu departaments ) examined separately each branch of the applicant ’s claim .

First of all , the ORG considered whether the applicant had a right to claim compensation for an apartment of the same standard under domestic law . The ORG established that a draft law on compensation referred to in DATE , paragraph CARDINAL of ORG had not been enacted , and that consideration therefore had to be given to whether tenants’ right to compensation derived from the Laws on the Return of Real Estate to ORG and on ORG in GPE . The first of those laws did not provide for such compensation rights , but for social rights to retain the right to lease ( section CARDINAL ) , to statutory rent limits ( CARDINAL ) and to have another apartment allocated in the event of eviction ( sections DATE ) . Under the second law only former owners or their legal heirs , not tenants , were entitled to compensation . The ORG concluded that the applicant did not have a subjective right to compensation in order to acquire an apartment of the same standard on the basis of the above - mentioned laws .

The ORG then proceeded to examine whether such a right to compensation could be derived from ORG , since under LAW that law every person has a right to request adequate compensation for pecuniary or non - pecuniary damage suffered as a result of an administrative act ( administratīvais akts ) or action of a public authority ( faktiskā rīcība ) . The ORG considered whether the elements of an action of a public authority were found in the relevant actions or omissions of the ORG authorities ( whether the person had a right to such act and whether , by such act , his or her subjective rights or interests might have been affected ) .

NORP Since the applicant did not have a right under domestic law to privatise the apartment in the denationalised building , he could not request the authorities to ensure such rights or to ensure that they were protected during the process of denationalisation of the building where his rented apartment was located . Therefore , the denationalisation of the building was not an action of a public authority in so far as the applicant was concerned ( within the meaning of ORG ) and was not subject to administrative proceedings .

Taking into account that the drafting and enactment of laws was the prerogative of the ORG ’s legislative power , the alleged omission of ORG to draft a law on compensation was not an action of a public authority ( within the meaning of GPE ) and , thus , was not subject to administrative proceedings .

As to the applicant ’s running a risk of having to pay higher rent and losing his home , the ORG noted that the applicant was dissatisfied with the implementation of the ORG ’s policy , which is not an action of a public authority and therefore can not be reviewed in administrative proceedings .

Finally , as concerns the allegedly discriminatory regulations of ORG , the ORG considered that examination of such a claim fell within the competence of ORG .

Accordingly , the ORG dismissed the claim as inadmissible on the grounds that it was not subject to administrative proceedings and that the applicant did not have a right of claim .

The Law on Denationalisation of Real Estate ( likums “ ORG namīpašumu denacionalizāciju Latvijas NORP ” ) was adopted on CARDINAL DATE and took effect on DATE ( see paragraph CARDINAL below ) . In its relevant part it provided as follows :

“ To repeal the following :

The Decree on Nationalisation of Large Buildings issued by the Presidium of ORG of the NORP SSR on DATE and all legislative enactments issued under that decree ;

All decrees issued by the Presidium of ORG of the NORP SSR on nationalisation of buildings owned by individual natural persons . ”

“ Lease or rental agreements concluded by the previous manager shall be binding on the owners of denationalised buildings .

Amendments to lease or rental agreements shall be made only with the approval of the municipal authorities and under a procedure prescribed by law . ”

“ Rent in denationalised buildings or apartments shall not exceed the amount established by ORG . ”

“ Eviction from denationalised buildings shall take place only under LAW , but for DATE after restoration of property rights , in cases when the owner requests eviction under LAW , paragraph CARDINAL , only if an equivalent place of residence is offered [ to the tenants ] . ”

On DATE amendments to ORG entered into force , whereby section CARDINAL was amended to refer to the relevant provisions of the newly adopted PERSON on Residential Tenancies : section CARDINAL , parts CARDINAL and CARDINAL . On DATE another set of amendments to the law entered into force ( “ the DATE amendments ” ) . The relevant provisions , following those amendments , read as follows :

“ The term of lease or rent concluded by the previous manager shall be binding on the owners of denationalised buildings unless otherwise provided in this law . ”

“ The amount of rent [ determined ] without their consent for tenants who had concluded agreements with previous managers of denationalised buildings shall not exceed the amount established by ORG . ”

The PERSON on the Return of Real Estate to ORG ( likums “ ORG namīpašumu atdošanu likumīgajiem īpašniekiem ” ) was passed on CARDINAL DATE and took effect on DATE . In its relevant part it provided as follows :

“ The property rights of the former owners or their legal heirs , irrespective of their current nationality , of buildings arbitrarily taken over by the ORG or legal entities in DATE , without compensation and with complete disregard for their ownership rights , shall hereby be restored . ”

“ Monetary disputes between the former manager and the owner shall be resolved under LAW Civil Code . ”

“ Lease or rental agreements concluded by the previous manager shall be binding on the owners of returned buildings .

“ Rent in returned buildings or apartments shall not exceed the amount established by ORG . ”

“ ORG from returned buildings shall take place only under LAW , but for DATE after restoration of property rights , in cases when the owner requests eviction under LAW , paragraph CARDINAL , only if an equivalent place of residence is offered [ to the tenants ] . ”

On DATE amendments to the Law on the Return of Real Estate to ORG entered into force , whereby section CARDINAL was amended to refer to the relevant provisions of the newly adopted PERSON on Residential Tenancies : section CARDINAL , parts CARDINAL and CARDINAL . On DATE another set of amendments to the law entered into force ( “ the DATE amendments ” ) . The relevant provisions of the PERSON on the Return of Real Estate to ORG then read as follows :

“ The term of lease or rent concluded by the previous manager shall be binding on the owners of returned buildings unless otherwise provided in this law . ”

“ The amount of rent [ determined ] without their consent for tenants who had concluded agreements with previous managers of returned buildings shall not exceed the amount established by ORG . ”

On DATE ORG adopted ORG into Force of the Laws on the Return of Real Estate to ORG and on ORG PERSON “ Par Latvijas PERSON likumu “ ORG namīpašumu atdošanu likumīgajiem īpašniekiem ” un “ ORG namīpašumu denacionalizāciju Latvijas NORP ” spēkā stāšanās kārtību ” ) :

“ ORG decides :

[ that ] Until the buildings are returned to their legitimate owners it shall be prohibited to sell [ or change the ownership in any other way ] , reconstruct , rebuild and demolish these buildings as well as to have new tenants located in the residential and non - residential LOC which have become available . This prohibition shall enter into and remain in force from DATE of this decision until the expiry of the statute of limitations for submitting a claim or an application .

[ to ] Stipulate that the DATE period during which , after restoration of property rights , tenants can not be evicted without having been allocated an equivalent residence , as prescribed by the Laws on the Return of ORG to ORG and on ORG in GPE , applies also in cases when a judgment on a tenant ’s eviction pursuant to sections CARDINAL and CARDINAL of MONEY has not yet been enforced on the date of this decision .

This article does not apply when tenants have been placed in a building after a previous owner has submitted a claim to have his property rights restored . In such cases the time - limit shall be DATE from the date of restoration of property rights .

[ to ] Stipulate that the Law on Denationalisation of Real Estate in GPE shall enter into effect on DATE .

[ to ] Obligate the Council of Ministers :

CARDINAL ) to submit to ORG a draft law on amendments to existing legislation with regard to the enactment of the Laws on the Return of Real Estate to ORG and on ORG in GPE by DATE ;

CARDINAL ) to draft and submit to ORG a draft PERSON on Compensation by DATE ;

CARDINAL ) to draft and adopt ORG in GPE and [ a model ] denationalisation certificate by DATE ;

CARDINAL ) to amend the government ’s legislative acts on apportionment and change of residential property with regard to the entry into effect of the Laws on the Return of Real Estate to ORG and on ORG in GPE by DATE ;

CARDINAL ) to draft and stipulate simplified regulations on credit arrangements for tenants residing in denationalised buildings or houses that have been returned to their legitimate owners if those tenants were registered to receive an equivalent residence because of the denationalisation of that property and have expressed the wish to build an individual house for residential purposes ;

CARDINAL ) to harmonise the government ’s decisions on the material rights of oppressed and deported nationals with the Laws on the Return of Real Estate to ORG and on ORG in GPE by DATE .

[ to ] Obligate parish , city and district authorities :

CARDINAL ) to identify the buildings taken from previous owners in their territory ;

CARDINAL ) to provide the legitimate owners who have obtained a residency permit in GPE in connection with the denationalisation or return of the buildings to them , with land to build individual houses for residential purposes ;

CARDINAL ) in dealing with questions of allocation of equivalent residential property or land to tenants residing in denationalised buildings , primarily to ensure that previous owners residing in their territory can return to their properties ;

CARDINAL ) to promote exchanges of apartments between owners of denationalised buildings and houses that have been returned to their legitimate owners [ on the one hand ] and tenants of such buildings [ on the other hand ] , if as a result of such an exchange the owner takes up residence in his building .

[ to obligate ] ORG to draft and submit to the ORG of ORG by DATE a draft enactment on methods of compensation for denationalised buildings and calculation of the NORP value .

[ to ] Obligate the Legislation Committee of ORG to submit the part of NORP Civil PERSON concerning inheritance for consideration , and amendments and additions to the parts of the civil code on property law and obligations law for the third reading , by DATE . ”

On DATE ORG was adopted ( Likums “ ORG dzīvojamo telpu īri ” ) ; it entered into force on DATE . Over time , it has been amended on several occasions . The relevant provisions were spelled out in ORG judgment of DATE ( see paragraph CARDINAL below ) .

For the present purposes the DATE and DATE amendments to that law are of importance . They were adopted on DATE and DATE and took effect on DATE and CARDINAL DATE respectively . With the DATE amendments the transitional provisions stipulated the maximum amount of rent payable per square metre ( the statutory rent limits ) if the owners of denationalised or returned buildings could not reach an agreement with their tenants . The amount was fixed at CARDINAL NORP lati ( ORG ) in DATE , LVL CARDINAL.CARDINAL in DATE and ORG in DATE . With the DATE amendments the statutory rent limits were set for DATE ORG CARDINAL in DATE , ORG CARDINAL.CARDINAL in DATE and LVL CARDINAL.CARDINAL in DATE . These statutory rent limits were abrogated by ORG with effect on DATE .

Following the DATE amendments , the sections relating to dispute resolution in the event of eviction read as follows :

“ The landlord may terminate the lease and evict a tenant together with family members and other persons without allocating them another place of residence in the following situations :

CARDINAL ) if the tenant does not pay rent for DATE while continuing to have the use of the residence in accordance with the lease agreement and relevant legal provisions , ...

Before bringing an action in court , the landlord shall give the tenant at least DATE notice of termination of the lease . ... ”

“ Disputes arising from residential tenancy relations shall be adjudicated in a court . ”

With the DATE amendments , a new Article was introduced in the transitional provisions :

“ CARDINAL . The Cabinet of Ministers shall develop by DATE and implement by DATE a ORG and local government support programme and compensation mechanism for tenants renting residential accommodation in a denationalised residential building or one which has been returned to a legal owner and who have been using such accommodation up to the time of restoration of the property rights to the previous owners or their heirs . ”

The relevant provisions of this law have been quoted elsewhere ( see PERSON and PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , ECHR CARDINALII ( extracts ) ) .

In case no . DATE - CARDINAL - CARDINAL ORG examined individual constitutional complaints lodged by the owners of denationalised buildings . They complained that the DATE amendments in so far as they related to the statutory rent limits were unconstitutional . In its judgment of DATE the court declared that provision unconstitutional and null and void as of CARDINAL DATE . The judgment , in its relevant part , reads as follows :

“ CARDINAL . In DATE , after the establishment of NORP occupation , the nationalisation of private property began in GPE . To implement it , on DATE the Presidium of the NORP ORG passed a Decree “ On Nationalisation of Large Buildings ’’ . Under that Decree those buildings , the “ total useful area ” of which exceeded QUANTITY in GPE and other major cities of GPE and QUANTITY in smaller towns , were nationalised . In addition , all those buildings in which ORG institutions were located , as well as houses whose owners did not reside in GPE and buildings having historical or artistic value were nationalised . Over the following DATE the NORP power continued divesting owners of their properties . ...

On DATE GPE adopted the Law “ On FAC in GPE ” , by which the above Decree and the normative acts issued in accordance with it were declared null and void . On DATE the Law “ On FAC to the Legitimate Owners ” was passed . Its LAW stipulates that “ The property rights of the former owners or their legal heirs , irrespective of their current nationality , of buildings arbitrarily taken over by the ORG or legal entities in DATE , without compensation and with complete disregard for their ownership rights , shall hereby be restored ” . In DATE , on the basis of the above laws , buildings were denationalised and returned to their legal owners . Many of those properties still had tenants living in them who had concluded rental contracts prior to the restoration of property rights . ...

... LAW , paragraph CARDINAL of ORG [ enacted in DATE ] provided that “ rent shall be determined on the basis of an agreement between the parties , but it shall not exceed the maximum amount established by the government ” . In DATE amendments stipulated that “ rent shall be determined on the basis of a written agreement between the parties , except in the cases specified in the second , third and fourth paragraphs of this section ” .

LAW , paragraph CARDINAL provided : “ In denationalised buildings and buildings that have been returned under the PERSON on the Return of Real Estate to ORG , in respect of tenants who were renting the apartments at the time of the denationalisation ( or return to owners ) the rent shall be determined on the basis of a written agreement and in accordance with LAW on the procedure for calculating rent .

On DATE amendments to ORG took effect , incorporating the provision on statutory rent limits in denationalised or returned buildings into LAW . LAW provides that if the tenant was resident in the building before its restoration to the rightful owner , the rent shall be determined by agreement between the parties . If no agreement is reached , then the rent shall be determined by the owner , but it shall not exceed ORG QUANTITY of rented area DATE , LVL CARDINAL.CARDINAL in DATE and ORG in DATE .

On DATE amendments to ORG were adopted . They took effect on DATE ...

The ORG , in its reply , stressed that the contested provision had been enacted in order to balance the interests of the owners of denationalised apartment buildings , the ORG , the municipalities and the tenants of such buildings with respect to the statutory rent limits .

Referring to the judgment of ORG in the case of ... ( ORG v. GPE [ DATE ] ORG CARDINAL ) , the ORG indicates that the imposition of restrictions in respect of rent has a legitimate aim – to secure the social protection of indigent tenants having regard to the continuing lack of residential accommodation and the existing concern at demands for unjustifiably high rent . Furthermore , this legitimate aim has to be examined in a broader context since the housing problem creates infringements of other human rights , such as social security and children ’s rights . ...

According to Professor PERSON , even if the impugned provisions had not been adopted , the owners of the apartments would not be free to fix any rent they wished CARDINAL of ORG establishes agreement between the tenant and the owner as a general principle , as well as the settling of disputes in court . ...

[ the ORG ’s representative ] stated that neither the ORG nor the municipalities possessed sufficient financial means to offer tenants residing in denationalised buildings or buildings returned to their legitimate owners adequate compensation ... .

ORG and return of buildings to the owners after the restoration of GPE ’s independence was carried out in the context of the property reform , which also regulated legal relations between the owners of the buildings and persons who had used apartments in the denationalised or returned buildings prior to the restoration of ownership rights ( henceforth – “ pre - reform tenants ” ) .

When analysing issues connected with CARDINAL part of the property reform – land reform – ORG has established that “ GPE is not responsible for violations of human rights , including nationalisation of property , perpetrated by the occupying power . GPE has no possibility and no duty to fully compensate all losses inflicted on persons by the occupying power ” ( Judgment of ORG in case no . DATE , DATE ) .

Simultaneously the Constitutional Court ruled that “ When restoring the legal system of independent GPE , the legislator had a duty to take measures to restore fairness and redress the losses inflicted by the previous regime , by observing the principles of the rule of law . At the same time the legislator , when choosing the means for the land reform , had to strike a fair balance between the conflicting interests of various members of society ” ( ibid . ) .

The legislator must also observe the principles of rule of law when implementing other aspects of the property reform , including denationalising and returning buildings to their rightful owners .

Article CARDINAL of the LAW ( PERSON ) provides : “ Everyone has the right to own property . Property shall not be used against the public interest . Property rights may be restricted only in accordance with the law ” . In conformity with LAW “ the ORG shall recognise and protect fundamental human rights in accordance with LAW , the law and international agreements binding upon GPE ” . ...

In accordance with the former wording of LAW , after DATE the rent for an apartment shall be determined by written agreement between the tenant and the owner , and shall include a portion of the building ’s management expenses ... but if no agreement has been reached , it shall be determined by the owner . In their turn , the DATE amendments ... not only set the statutory rent limits for DATE , DATE and DATE but also stipulate that in cases where rent is not determined by a written agreement between the parties , the owner shall determine it ( including a portion of the building ’s management expenses proportional to the area rented , and profit ) . ...

... PERSON points out that LAW provides for a written agreement between the tenant and the owner and the settlement of disputes in court as a general rule . If the statutory rent limits had not been extended until DATE , the number of disputes to be reviewed in the courts would have increased and the outcome would depend on the assessment of the reasons and financial justification for the rent increase . ...

During the hearing the applicants expressed their view that if the legislator had not adopted the DATE amendments , they would have been able to agree on a reasonable rent , and if no agreement with the tenant could be reached , the dispute would have had to be reviewed in court .

... As has been found before , courts of general jurisdiction could review the reasonableness of the rents charged by landlords . The ORG ’s submission that the DATE amendments are necessary to avert large - scale evictions of tenants is not substantiated . Even if they had not been adopted the relevant provisions of LAW , ORG and ORG to ORG , as well as Cabinet Regulation no . DATE ) on methods for the calculation of the management expenses included in the rent for residential space would be binding on the owner . Even though there have been attempts to charge unreasonably high rent , there is no basis for concern as the owner alone can not fix the rent without the tenant ’s agreement . ...

... The lease agreements had been drawn up with the tenants in DATE when the rent was determined administratively and not by agreement between the parties ...

... Thus the legislator considered the fixing of rents by an administrative procedure as a temporary or transitional measure characteristic of property reform . In the above circumstances the ORG took on responsibility for regulating relations between owners and tenants by setting statutory rent limits . The duty of the ORG when setting those limits was to strike a fair balance between the rights of the owners and the tenants while duly observing the principles of the rule of law and the fundamental rights enshrined in the LAW .

At the beginning of the property reform the legislator had placed several restrictions on landlords which followed on from the commitments made by the former managers of the buildings . At the same time the law gave reason to believe that these restrictions would eventually be lifted . ... The law provided for a DATE period during which evicting tenants without allocating them another place of residence was prohibited .

Owners could legitimately expect that the imposed administrative restrictions , which were necessary at the beginning of the reform , would in due time be abolished in a reasonable way . ... Owners could legitimately expect that the ORG would , in due course , propose a reasonable solution to the problem .

... Neither at the beginning of the property reform , nor during it , did the law anticipate that the tenants would have a special status different from that of [ ordinary ] tenants once the property reform process had been completed . Initially they were guaranteed the right to lease on the same terms as any other tenants . When the legislature decided to liberalise rents in respect of other tenants , it was made clear that the status of pre - reform tenants regarding rental agreements was temporary . ...

Thus , during the property reform pre - reform tenants could not legitimately expect that after the end of the reform process they would continue to have a special status different from other tenants and be able to live in the same apartment forever , paying a considerably lower rent than other persons living in comparable buildings .

ORG - reform tenants could , however , legitimately expect that the ORG would protect their rights and , within reasonable limits , provide a gradual transition from rent determined by the authorities to owner - and - tenant relations that would satisfy the interests of both the pre - reform tenants and their landlords .

It has to be acknowledged that until DATE no significant measures were taken to provide support for tenants . ...

That the ORG for DATE was not interested in normalising the relationships between the owners of denationalised or returned buildings and their tenants is shown not only by the fact that no financial means were allocated for the implementation of measures during the transitional period but also by the lack of information on the scope of the problem . ...

The measures that were undertaken prior to DATE were evidently not sufficient to protect the rights of pre - reform tenants . ...

Thus the ORG , by its inaction , has infringed the pre - reform tenants’ right to legal certainty , namely the certainty that they will be able to solve their housing issues in the long term either by concluding reasonable agreements with the owners of the denationalised or returned buildings or by finding another permanent solution .

However , the said inaction did not provide pre - reform tenants with legal certainty in respect of any specific rights the protection of which would have the effect of restricting the fundamental rights of owners as stated in LAW .... ”

The instrument of ratification of the ORG and its Protocols deposited by the Government on DATE contains the following reservation :

“ In accordance with LAW [ now LAW , GPE declares that the provisions of LAW shall not apply to the laws on property reform which regulate the restoration or compensation to the former owners or their legal heirs of property nationalised , confiscated , collectivised or otherwise unlawfully expropriated during the period of NORP annexation ; and privatisation of collectivised agricultural enterprises , collective fisheries and of ORG and local self - government owned property .

The reservation concerns ORG in GPE ( published in PERSON [ The Bulletin ] DATE , No . DATE ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; GPE [ ORG ] DATE , No . CARDINAL ) , LAW , No . DATE , No . CARDINAL ; DATE , No . CARDINAL ; GPE DATE , No . DATE , No . CARDINAL ) , Law On Land Reform in GPE DATE , No . CARDINAL ; GPE DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL/CARDINAL ) , Law On Land Privatisation in LOC ( Zinotajs DATE , No . CARDINAL ; DATE , No . CARDINAL ; GPE DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ) , LAW in ORG , No . CARDINAL ) , LAW DATE , No . DATE ) , PERSON On the Privatisation of Objects of ORG DATE , No . DATE ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL/CARDINAL/CARDINAL/CARDINAL/CARDINAL/CARDINAL ) , LAW - operative GPE , No . DATE ; GPE DATE , No . CARDINAL ) , PERSON On the Privatisation of State and ORG DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ) , PERSON On ORG in GPE ( DATE , No . CARDINAL ; GPE DATE , No . DATE ; DATE , No . DATE , No . CARDINAL ; DATE , No . CARDINAL ) , PERSON On the Return of Real Estate to ORG , No . CARDINAL ; GPE DATE , No . DATE ; DATE , No . CARDINAL ) and their wording being in force at the moment GPE entered into force . ”


CASE OF PINE VALLEY DEVELOPMENTS LTD AND OTHERS v. IRELAND

Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);No violation of P1-1;No violation of Art. 14+P1-1;Violation of Art. 14+P1-1;No violation of Art. 13;Just satisfaction reserved

The first and second applicants , ORG and ORG , used to have as their principal business the purchase and development of land . The first of these companies , which was a wholly - owned subsidiary of the second , was struck off the register of companies on DATE and dissolved on DATE , for failure to file DATE returns for DATE . Since DATE ORG too has filed no DATE returns ; on DATE and CARDINAL DATE a receiver to this company was appointed by CARDINAL secured creditors . The third applicant , Mr PERSON , is the managing director of ORG and its sole beneficial shareholder ; on DATE , by order of an NORP court , he was adjudged bankrupt .

On DATE ORG had agreed to purchase for ORG £ QUANTITY of land at GPE . It did so in reliance on an outline planning permission ( see paragraph CARDINAL below ) for industrial warehouse and office development on the site . This permission , which was recorded in the official planning register ( see paragraph CARDINAL below ) , had been granted on DATE by the Minister for ORG to the then owner , Mr PERSON , on his appeal against the refusal , on DATE , by the planning authority ( ORG ) of full planning permission . CARDINAL of the grounds for that refusal was that the site was in an area zoned for the further development of agriculture so as to preserve a green belt .

On DATE ORG refused the detailed planning approval ( see paragraph CARDINAL below ) for which LOC had applied on DATE in reliance on the outline permission . ORG thereupon sought a conditional order of mandamus , directing the council to grant such approval ; such an order was granted on DATE and was made absolute by ORG by a decision of CARDINAL DATE .

On DATE ORG sold the land to ORG for IR £ MONEY .

On DATE , on appeal by ORG against ORG decision , ORG held that the grant of outline planning permission had been ultra vires and was therefore a nullity . It found that the relevant statutory provision ( section CARDINAL of ORG DATE ) did not empower the Minister for ORG to make , on an appeal against a refusal by a planning authority , a decision which - as in the present case - contravened the development plan ( see paragraph CARDINAL above ) .

As a result of this decision the land could not be developed and its value was therefore substantially reduced . In DATE it was sold in the open market by the receiver of ORG for IR £ MONEY .

With a view to validating planning permissions and approvals the validity of which came into question as a result of ORG decision , ORG DATE ( " LAW " ) was enacted . It entered into force on DATE .

Section CARDINAL of the DATE Act provided as follows :

" ( CARDINAL ) A permission or approval granted on appeal ... prior to DATE , shall not be , and shall not be regarded as ever having been , invalid by reason only of the fact that the development concerned contravened , or would contravene , materially the development plan relating to the area of the planning authority to whose decision the appeal related .

( CARDINAL ) If , because of any or all of its provisions , subsection ( CARDINAL ) of this section would , but for this subsection , conflict with a constitutional right of any person , the provisions of that subsection shall be subject to such limitation as is necessary to secure that they do not so conflict but shall be otherwise of full force and effect . "

The date of DATE was that of the establishment of ORG ( An ORG ) , to which body the appeal functions formerly entrusted to the Minister for ORG had been transferred by ORG DATE .

LAW also dealt , in section CARDINAL , with the duration of the validity of certain permissions . Its effect was that CARDINAL granted on DATE , as was the outline permission in the present case , expired on DATE . Under section CARDINAL , however , the planning authority could extend the period of validity of a permission provided , inter alia , that substantial works had already been carried out before it expired .

In the course of the debate on LAW before PERSON ( ORG of ORG ) the Minister of ORG at ORG was asked the following question :

" I understand that certain planning permissions were declared to be null and void by ORG . I agree the law has to be put right , but who is going to declare under subsection ( CARDINAL ) whether a person ’s constitutional rights are going to be interfered with ? Does it mean another trip to ORG ? What is the position ? The Minister might tell us exactly what is in his mind . "

The Minister replied :

" It would be agreed by the court . Subsection ( CARDINAL ) has been included by the parliamentary draftsman , with the agreement of the Attorney General , so as to preserve the rights of parties to any proceedings now before the courts and to assure that no court is deprived of jurisdiction regarding an issue raised in such proceedings . This subsection is also designed to meet the case of any unconstitutional interference with a property right . " ( Official report of ORG PERSON for DATE , columns DATE )

On CARDINAL DATE LOC applied to ORG for planning approval ( see paragraph CARDINAL below ) on the basis of the outline permission granted in DATE ; its application contained no reference to LAW . Approval was refused on DATE on the ground that ORG had held in the first LOC case that the outline permission was not valid and on CARDINAL other grounds related to technical planning matters . No appeal was made to ORG against this decision nor was it the subject of any other legal challenge ; the applicants claimed that an appeal would have been to no avail since ORG had to confine itself to matters of proper planning and development ( see paragraph CARDINAL below ) and could not give an authoritative interpretation of section CARDINAL of LAW .

DATE after the ORG ’s decision , the applicants set in motion the second LOC case ( see paragraphs DATE below ) . Whilst it was pending , the following steps were taken on their behalf .

First , on DATE their architect wrote to ORG asserting that LOC was excluded from the benefit of section DATE ) of LAW and asking that the applicants’ position be reconsidered in the light of " the injustice of the situation " . The ORG replied on DATE , regretting that it could not be of assistance .

Secondly , on DATE the ORG solicitors wrote to ORG , requesting it to deal with the outstanding appeal which had originally been dealt with by the Minister for ORG in DATE ( see paragraph CARDINAL above ) in a manner subsequently found invalid . ORG replied on DATE that the appeal in question " does not remain to be determined by ORG " . The solicitors asked ORG to indicate the reasons for this decision , but its reply of CARDINAL DATE was confined to saying that the legal advice it had received was confidential and that it could not assist any further than by stating its position .

On DATE LOC brought proceedings - in which ORG and PERSON were joined as plaintiffs on DATE - against the Minister for ORG ( as the successor to the Minister for ORG ) , seeking damages for breach of statutory duty , for negligent misrepresentation and for negligence . The plaintiffs later amended their pleadings to include a claim for damages against the State for breach of their constitutional rights of property .

With the consent of the parties ORG directed on DATE that the question whether the plaintiffs had a cause of action be tried as a preliminary issue and that the following points of law fell to be determined in this connection :

( a ) whether an action in damages for

( i ) breach of statutory duty ;

( ii ) negligence ; and/or

( iii ) negligent misrepresentation

lay at the suit of the plaintiffs against the Minister for the Environment for granting on legal advice the outline planning permission to Mr PERSON ;

( b ) whether in the circumstances pleaded the ORG

( i ) had failed to vindicate the property rights of the plaintiffs and , if so , whether an action for damages lay against it ;

( ii ) had in its laws respected and as far as practicable by its laws defended and vindicated the property rights of the plaintiffs and , if it had not , whether an action for damages lay against it .

On DATE ORG held that no cause of action lay , whereupon the plaintiffs appealed to ORG . On DATE they entered into an agreement amongst themselves in which ORG and ORG assigned to PERSON , on his undertaking to pay the costs , their entire interest in the proceedings and acknowledged that any benefit resulting therefrom would accrue to him free of any claim by them .

On DATE the ORG unanimously dismissed the appeal ( [ DATE ] Irish Law Reports Monthly , pp . CARDINAL - CARDINAL ) .

In rejecting the claim for damages based on breach of statutory duty , Mr Justice PERSON ( with whose judgment Mr ORG agreed and Mr Justice PERSON concurred ) found that the Minister ’s decision to grant outline planning permission contravening the development plan did not fall into any of the categories of ultra vires decisions that would found an action for damages ; in particular , there was no evidence that he had been aware that he did not possess the power he was purporting to exercise .

Mr Justice PERSON based his dismissal of the claims for alleged negligence and negligent misrepresentation essentially on the ground that , when granting the permission , the Minister had acted bona fide and in accordance with the advice he had obtained from his department ’s legal advisers .

As regards the claim for damages for breach of the GPE constitutional rights of property , Mr Justice PERSON stated :

" With regard to this submission the first enquiry must , it seems to me , be as to whether there has been an unjust attack on the GPE property rights or whether an injustice has been done to them .

What the Minister was doing in making his decision in DATE to grant outline planning permission to the then owner of these lands was not intended as any form of delimitation or invasion of the rights of the owner of those lands but was rather intended as an enlargement and enhancement of those rights .

The purchase of land for development purposes is manifestly a major example of a speculative or risky commercial enterprise . Changes in market values or economic forces , changes in decisions of planning authorities and the rescission of them , and many other factors , indeed , may make the land more or less valuable in the hands of its purchasers .

I am prepared to accept that prima facie in this instance the fact that the Minister ’s decision was ultimately found by this ORG to have been a nullity , probably contributed towards a diminution in the value of the land in the GPE hands . That fact , itself , however , does not , in my view , necessarily mean that an injustice was done to the plaintiffs and I am certain that that does not constitute an unjust attack on the LOC property rights .

The obligation of the ORG in Article CARDINAL.CARDINAL.CARDINALo and LAW [ of LAW ] is in the first instance , as far as practicable by its laws to defend and vindicate the personal rights of the citizen and , in the second instance , to protect as best it may from unjust attack , and in the case of injustice done , vindicate the property rights of every citizen . In its decision in the case of PERSON v. PERSON [ DATE ] Irish Reports CARDINAL , this ORG in its judgment delivered by O’Higgins CJ , stated as follows :

‘ It is noted that the guarantee of protection given by LAW is qualified by the words " as best may be " . This implies circumstances in which the ORG may have to balance its protection of the right as against other obligations arising from regard for the common ORG

I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act without negligence and bona fide . Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would , it seems to me , tend to avoid indecisiveness and delay , which might otherwise be involved .

I am , therefore , satisfied that there can not be , on the facts of this case , any question of there being a clearcut obligation imposed on the ORG to provide compensation for the plaintiffs in the circumstances which have arisen . I am , therefore , satisfied that the submissions made with regard to a claim for damages for breach of constitutional rights must also fail . It is not necessary for me to decide , and I express no opinion , on the question as to whether an action does lie for failure on the part of the ORG to legislate in protection of personal rights , as distinct from the action to set aside or invalidate legislation which fails adequately to protect or vindicate them . "

In their judgments some members of ORG addressed the question whether the retrospective validation of planning permissions effected by section CARDINAL of LAW ( see paragraphs CARDINAL above ) covered the outline permission granted to Mr GPE in DATE . This question was not expressly mentioned in the agreed points of law to be determined ( see paragraph CARDINAL above ) , nor did the pleadings in the case make it a contentious issue : the GPE plea in their statement of claim that they could not " by operation of law avail of the retrospective validity afforded by the provisions " of that section was not denied by the ORG in its defence .

Mr Justice PERSON stated that LAW contained a " saver for cases involving constitutional rights of other persons , which would appear to exclude the plaintiffs from the benefit of such retrospective validation " .

Mr Justice PERSON ( with whom Mr Justice PERSON agreed ) said that section CARDINAL of the DATE Act effected a retrospective validation , save where it " would conflict with a constitutional right of any person . This meant that LOC were excluded from the benefit of the section , for they had exercised their constitutional right to litigate the validity of the planning permission in the FAC " .

Mr Justice PERSON stated :

" No doubt it was apprehended that s. DATE ) of the [ CARDINAL LAW ] might operate to reverse retrospectively this ORG ’s decision [ in the first LOC case ] and that this might constitute an unwarrantable interference by the legislature in a decision of the courts . It seems probable that it was in these cicumstances that s. CARDINAL ) was enacted with a view to avoiding such interference . And this subsection has been accepted by counsel for both sides in the present case as excluding the appellants from the benefit of s. CARDINAL ) . "

Certain views were also expressed as to the effects of the GPE being excluded from the benefit of the retrospective validation .

Mr Justice PERSON said :

" [ The ] exclusion has been attacked by counsel for ORG as being unfairly discriminatory as far as they are concerned , but in my view , while a discrimination has resulted , the primary and overriding purpose of the section was to avoid an unconstitutional invasion of the judicial domain by attempting to give validity to any planning permission which the ORG may have held to be lacking in validity . It would follow that no injustice has been done to LOC by s. CARDINAL of LAW . "

Mr Justice PERSON stated :

" ... the appellants contend that to exclude them from the benefit of s. DATE ) constitutes ( a ) an unjust attack on their property rights or an injustice done which affects their property rights and ( b ) discriminates unfairly as between them and other persons who had received permissions or approvals of the Minister on appeal under Part IV of the DATE LAW and who were given the benefit of s. DATE ) . In regard to the first contention it seems to me that s. CARDINAL ) was included by the ORG for the purpose of respecting and not interfering with the determination by the courts of the justiciable controversy which constituted the proceedings in [ the first LOC case ] and of respecting the constitutional rights of the parties , both plaintiffs and defendants in that action , to have their controversy determined by the courts rather than by the ORG . It may be that there is to some extent a conflict here between the right of the parties to have their controversy judicially determined by the courts and the present appellants’ property interest . That fact in itself , however , does not in my view , necessarily mean that an injustice was done to the appellants and I am satisfied that it does not constitute an unjust attack on the appellants’ property rights or an unlawful discrimination against them .

Those persons ( such as the appellants ) who were excluded from the benefits of s. DATE ) by s. CARDINAL ) and the other recipients of planning approval or permission on appeal from the Minister who benefited from s. CARDINAL ) and fall outside the ambit of s. CARDINAL ) constitute CARDINAL groups who were and are differently situated and a valid and substantial reason for the discrimination which has been made by these sections has always existed . "

Mr Justice PERSON added that when the outline planning permission in respect of the land was declared invalid , there would have been a breach of the vendor ’s covenant for title , which would have given LOC a cause of action for damages against him . Alternatively , it could have recovered from him , in an action for unjust enrichment , so much of the purchase price as was attributable to the permission . Since LOC had not shown that its loss could not be recovered in that way , it had failed to prove that an injustice had been done to it for the purposes of LAW .

LAW contains the following provisions :

" CARDINAL . All citizens shall , as human persons , be held equal before the law .

This shall not be held to mean that the ORG shall not in its enactments have due regard to differences of capacity , physical and moral , and of social function .

CARDINAL The ORG guarantees in its laws to respect , and as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .

CARDINAL The ORG shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name and property rights of every citizen . "

" CARDINAL . CARDINAL The ORG acknowledges that man , in virtue of his rational being , has the natural right , antecedent to positive law , to the private ownership of external goods .

CARDINAL The ORG accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer , bequeath and inherit property .

CARDINAL The ORG recognises , however , that the exercise of the rights mentioned in the foregoing provisions of this LAW ought , in civil society , to be regulated by the principles of social justice .

CARDINAL The ORG , accordingly , may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good . "

In addition to LAW ( see paragraphs CARDINAL above ) , the principal legislation pertinent to this case was ORG DATE , as amended by LAW of the same title ( " LAW " ) .

The DATE LAW made thereunder provided for the grant by planning authorities of " permissions " and " outline permissions " for the development of land . Permissions were complete in themselves . PERSON permissions amounted to a favourable decision as to the principle of the proposed development but were granted subject to the subsequent approval , by the authority or on appeal , of detailed plans , without which approval work could not be commenced . The authority had to examine an application for such approval within the parameters set by the outline permission and could not reopen the question of principle . Outline planning permissions could be revoked but only in the event of a change in circumstances relating to the proper planning and development of the area .

In dealing with any application for permission or approval a planning authority was restricted , by section DATE ) of GPE , to considering " the proper planning and development of [ its ] area " .

An appeal against a decision of a planning authority lay to the Minister for Local Government or , after DATE ( see paragraph CARDINAL above ) , to ORG . Under section CARDINAL(CARDINAL)(b ) of the DATE Act , the provisions of section DATE ) applied , subject to any necessary modifications , to the determination of any such appeal . If a question of law arose on an appeal , the Minister or ORG could refer it to ORG for decision ( section CARDINAL(CARDINAL ) ) .

Under the DATE Act , planning permissions , which had to be recorded in a register kept by the planning authority , enured for the benefit of the land in question and of " all persons for the time being interested therein " ( sections CARDINAL and CARDINAL(CARDINAL ) ) .

Subject to a number of exceptions set out in section CARDINAL , section GPE ) of the DATE Act gave a right to compensation in the following terms :

" If , on a claim made to the planning authority , it is shown that , as a result of a decision under Part IV of this LAW involving a refusal of permission to develop land ... the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced , such person shall , subject to the provisions of this Part of this LAW , be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value and , in the case of the occupier of the land , the damage ( if any ) to his trade , business or profession carried on on the land . "

Claims for compensation under this section had to be made within DATE of notification of the decision , unless ORG accepted an application for an extension of this period ( section CARDINAL(CARDINAL ) ) .

Under section CARDINAL(CARDINAL ) of the DATE Act :

" Where , in a case determined on an appeal under this Part of this Act , permission to develop any land has been refused or has been granted subject to conditions , then , if the owner of the land claims

( a ) that the land has become incapable of reasonably beneficial use in its existing state , and

( b ) that the land can not be rendered capable of reasonably beneficial use by the carrying out of any other development for which permission has been granted under this Part of this LAW , or for which the planning authority have undertaken to grant such permission , and

( c ) in a case where permission to develop the land was granted as aforesaid subject to conditions , that the land can not be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with those conditions , he may , at any time within DATE after the decision ( or such longer period as the Minister may allow ) , serve on the planning authority a [ purchase notice ] requiring the planning authority to purchase his interest in the land in accordance with the provisions of this section . "

The value of land which was the subject of such a purchase notice was to be taken to be " the amount which the land if sold in the open market by a willing seller might be expected to realise " .

It was established by ORG in GPE and others ( ORG ) v. Attorney General [ DATE ] Irish Reports CARDINAL that the legislature can not intervene in respect of cases pending before the courts . On the other hand , it appears that the legislature may validly reverse the decision of the courts with retrospective effect once the proceedings are terminated , without thereby infringing the principle of judicial independence ( see , for example , ORG , reversing the ORG decision in PERSON and others v. PERSON [ DATE ] Irish Reports CARDINAL ) .


The first applicant [ PERSON ] is a NORP religious community ( ORG ) with public - law corporation status ( Körperschaft des öffentlichen PERSON ) whose governing board ( ORG ) is based in GPE . The second applicant [ PERSON ] is a NORP national , born in DATE and living in GPE ( GPE ) . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .

In DATE the first applicant requested a permit to build a chapel and cemetery on land belonging to it .

Its request was rejected by the administrative authorities , whereupon the first applicant lodged an application with ORG . At the public hearing before that court it requested an adjournment of the proceedings concerning the cemetery .

On DATE , after visiting the site of the planned building , ORG rejected the application concerning the chapel on the grounds that the site where it was to be built was in an undeveloped protected zone ( ORG ) and that it was not certain that public services ( PERSON ) could be installed .

On DATE , after hearing submissions from , among others , the public - health department , the water resources office ( GPE ) , the town of PERSON ( on whose territory the first applicant ’s land was ) and other departments which had not given their consent or had done so only on certain conditions , the GPE administrative authorities rejected the request concerning the cemetery , in respect of which the proceedings had been resumed after ORG had given judgment , on the ground that the proposed site was in an undeveloped protected zone and it was not certain that services could be installed on the land because the town of PERSON refused to grant the first applicant a right of access over the adjoining municipal land to the site of the planned cemetery .

On DATE ORG dismissed the application mainly on the same grounds as those set out in the judgment of DATE , to which it referred at length moreover .

On DATE , after visiting the site of the planned cemetery , ORG upheld the judgment of ORG of DATE . It noted , among other things , that construction of the planned cemetery was incompatible with the nature of the environment surrounding the site in question , particularly as , since the entry into force on DATE of the legislative decree on the creation of NORP LOC ( LOC GPE ) , any act such as to disfigure the character of the wildlife park – even locally – was prohibited . The fact that the first applicant was a religious community did not alter that finding because it could build the cemetery on other land less affected by environmental restrictions . ORG also noted that the lack of services on the land in question was an additional factor militating against the first applicant ’s project .

ORG also decided not to grant leave to appeal on points of law . The first applicant appealed against that decision .

On DATE ORG dismissed the appeal on the ground that it did not raise an issue of fundamental importance . It noted that freedom of religion was limited by the values laid down in the LAW itself . Among those constitutional values was the protection of life ’s natural sources ( natürliche ORG ) , as declared in section CARDINAL ) of LAW , which included the creation of protected zones . Additionally , the provisions relating to planning matters applied to everyone without distinction and did not impose more restrictions on religious communities than on other persons or groups of persons . As far as the provisions relating to cemeteries were concerned , it was indisputable that the creation of a cemetery was subject to laws relating to public health and the management of water resources . The freedom of a religious community subject to public law to practise its religion did not compel the authorities to grant that community an exemption from the statutory restrictions relating to the protection of the environment and the countryside . Besides that , the question as to whether such an exemption should have been granted , under the legislative decree of DATE relating to the creation of NORP LOC , concerned provisions adopted by the NORP legislature , that is to say by a Land , and could not therefore be relied on before ORG .

On DATE ORG , ruling as a panel of CARDINAL judges , decided not to uphold the first applicant ’s constitutional appeal . It noted , inter alia , that freedom of religion and freedom to manifest it was not unlimited and could be balanced against other constitutional values , of which section CARDINAL(a ) of LAW was one . It also noted that the first applicant could build the cemetery on other land which was less affected by regulatory restrictions .


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

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

The applicant , a wealthy property developer , married in DATE and the CARDINAL children of the marriage were born in DATE and DATE . In DATE the family moved to GPE for tax reasons , the mother and children returning to GPE in DATE , the applicant in DATE . The couple divorced in DATE , and there were subsequent proceedings in respect of financial matters ( “ the ancillary proceedings ” ) and in respect of the arrangements for the children ( “ the LAW proceedings ” ) . The parties had reached agreement in DATE regarding the applicant 's contact with the children , who had remained with their mother , but the arrangements later broke down and the applicant applied for a residence order , alleging deficiencies in the mother 's care .

The hearing , before Mr Justice Singer , began in DATE , but it became clear that DATE time estimate was insufficient and it was adjourned until DATE , when it was concluded after DATE . The applicant was represented by leading and junior counsel .

CARDINAL of the main issues in the case was the relevance of a title defect in a freehold commercial property owned by the applicant , known as ' Site B ' and potentially worth MONEY ( GBP ) . It was by far the most significant asset in issue . Although , back in DATE , an affidavit filed by the applicant showed he had not then sought to rely on the potential consequences of the title defect , his case ultimately was that it meant that he was unable to sell or mortgage the property and that it was effectively worthless save as a source of income from rents ( over GBP CARDINAL per annum at the time ) . At worst the defect could give the local authority the right to buy the property for a nominal sum . Counsel for the mother argued that the defect was of a technical nature and need not create significant problems in terms of realising the value of the property . Another significant issue concerned the applicant 's ongoing negotiations with ORG as to his tax liabilities . Judgment was reserved .

The applicant appeared in person , assisted by his solicitor , having withdrawn instructions from counsel . At the pre - trial review on DATE , Mr Justice Singer gave directions , including CARDINAL preventing the applicant from calling witnesses without leave of the court , and set a strict timetable . The applicant considered that the judge had already formed negative views about his character in the ancillary proceedings and felt he would not receive a fair hearing . He applied for the judge to remove himself from the case . The judge refused the application and refused permission to appeal , as did ORG .

The hearing began on DATE . The applicant was cross - examined over DATE by counsel for the mother . The applicant subpoenaed the children 's head teacher , who expressed the view that the applicant was sincere in his concerns for the children and confirmed that the applicant 's son had indicated a wish to be with him , although he also referred to the applicant as a bully . The applicant then began a lengthy cross - examination of the mother , in which the judge intervened frequently and revealed his increasing impatience with the applicant . It was later estimated that over TIME of the hearing the judge had intervened , on average , TIME .

By TIME of CARDINAL DATE the applicant decided he was unable to continue with the case and withdrew from the proceedings . He made a statement to the court indicating that he felt that the truth would not come out and that he was unable to have a fair trial before Mr Justice Singer . The applicant declined an invitation from the judge to return to court or for his solicitor to remain on his behalf .

On DATE the judge made various interim orders , including an injunction prohibiting publication of the details of the proceedings and a non - molestation injunction . He also ordered a suspension of the applicant 's contact with the children until further order of the court . The applicant faxed CARDINAL letters to the court over DATE detailing his complaints about the judge 's conduct and stating his intention to take his complaints further . He said he felt that he had been treated ' as a criminal ' and that the judge had shouted at him , interrupted him and had made increasingly intemperate outbursts , which disclosed his hostility to the applicant . He also complained that the judge had allowed counsel for the mother to question him in an unfair manner , whilst preventing him from asking questions in similar terms . He expressed his belief that the judge had formed a prejudice against him in the ancillary proceedings , had prejudged his application for residence and thereafter had become increasingly and openly hostile .

On DATE , giving judgment in the Children Act proceedings , Mr Justice Singer made a residence order in favour of the mother with contact for the applicant , but reducing that which he had previously enjoyed , to a total of DATE over DATE period . The recommendation of the children and family court reporter had been for a residence order in favour of the mother but with an increase in the applicant 's contact ( including an extension to weekend contact ) . The mother had at an earlier stage indicated her agreement to the suggested increase , but had withdrawn it by the time of the hearing . The order was in terms as sought by the mother . The injunction prohibiting publication was retained . The introductory recital to the order invited the applicant to consider submitting himself to a psychiatrist for examination . Paragraphs CARDINAL and CARDINAL dealt with residence and contact . Paragraph CARDINAL of the order included a non - molestation injunction in respect of the mother , a prohibition on any communication with the children except during the defined contact times , and an injunction preventing the applicant approaching within QUANTITY of the mother 's house or the children 's school . By paragraph CARDINAL , the mother 's application for an order under section CARDINAL ( CARDINAL ) of FAC , ( requiring the applicant to obtain leave from the court before making further applications ) was adjourned for full hearing . Paragraph CARDINAL of the order required the applicant to surrender the children 's passports . By paragraph CARDINAL he was ordered to pay the mother 's costs of the proceedings on an indemnity basis ( by which any doubt which the court may have as to whether costs were reasonably incurred or were reasonable in amount is resolved in favour of the receiving party ) , assessed summarily at GBP CARDINAL . Finally , the judge reserved the matter to himself .

The orders made on CARDINAL DATE were to run until further hearing ( in the event , DATE ) . The contact was limited to enable the applicant 's reaction to the outcome of the hearing to be assessed in relation to any impact it might have upon the children . Mr Justice Singer expressed profound reservations about the applicant 's ability to respond perceptively to the children 's needs . He held that the applicant was motivated not solely by the interests of the children , but also by a desire to win his own way , establish his superiority and punish the mother . His ' intractability and intransigence ' had become clearer as the hearing had progressed . Furthermore , he was unable to accept him as an honest witness . By contrast , he found the mother to be an impressive , honest and dignified witness , who instinctively avoided conflict and who had a consuming concern for the children . The applicant 's unreasonable conduct of the litigation and the disparity in the parties ' means justified the order for indemnity costs .

The applicant sought permission to appeal . In DATE , ORG adjourned the application , to consider it at an oral hearing , with the appeal to follow if permission was granted . By that stage the applicant had instructed new counsel in LAW proceedings .

On DATE , Mr Justice PERSON refused to terminate the order of DATE

On DATE , Mr Justice Singer gave judgment in the ancillary proceedings , in which he was highly critical of the applicant 's integrity and motivation . Assessing whether it was plausible that the applicant would exaggerate his liability to the Revenue so as to leave less money for the mother to claim , the judge referred to LAW case , saying ,

“ That experience has fortified me in the conclusion which I have reached about his character and his conduct . He is intensely determined to succeed , apparently at whatever cost . He reacts very strongly , vigorously and manipulatively to what he sees as opposition to him . ... In the child - related proceedings he persuaded me by his conduct of them that he had lost sight of the children 's interests in pursuit of his campaign to punish [ the mother ] for in effect defying his wishes and bringing the marriage to an end . ”

He found that the applicant had been forced to acknowledge dishonesty in his dealings with ORG , for example in connection with a “ sham ” sale of a property , about which he had provided misleading information to his accountant . He had also been selective in the extent and timing of his production of documents . Despite his adverse findings as to the applicant 's character however , the judge explicitly stated that his orders were not intended to reward the mother nor to penalise the applicant , and his conduct had not weighed in the overall decision .

On DATE , Mr Justice Singer ordered that the applicant pay the mother a lump sum of GBP CARDINAL , forthwith , together with her costs of MONEY , assessed on an indemnity basis . He also ordered that a receiver be appointed , with wide powers to take steps to realise the lump sum payment , including a power to enter into negotiations to try and resolve the title defect with Site B. The applicant applied for permission to appeal .

In DATE and DATE separate constitutions of ORG granted permission to appeal and heard detailed submissions from counsel in both sets of proceedings .

The applicant submitted that the judge should not have continued to sit in LAW proceedings having already made up his mind against the applicant in the ancillary proceedings and he had dismissed the application as vexatious and hopeless . The judge had intervened in a hostile manner , had uncritically accepted the mother 's case and dismissed the evidence of the head teacher and the welfare report to the extent that they were supportive of the applicant 's case , for example in relation to the wishes of the children . The applicant submitted that the judge 's conduct had hampered his presentation of the case to the extent that he had felt compelled to withdraw , leading to flawed and inappropriate orders . He also argued that the judge 's reaction to his withdrawal from the proceedings had been intemperate and he had made punitive and unnecessary orders , including ordering the applicant to pay the mother 's costs on an indemnity basis .

ORG gave judgment in LAW proceedings on DATE . The court , which had read a complete transcript of the hearing at first instance , observed that ,

“ For us the atmosphere and the emotions with which spoken words were charged are largely lost . Thus any judgment upon whether or not [ the applicant ] received a fair and impartial trial is necessarily imperfect . On the one hand it can be said that [ the applicant ] is a robust and skilful man who had educated himself in the processes of litigation and who was throughout accompanied by his solicitor . On the other hand he had already conceived a conviction that the judge had taken against him by the end of the marathon hearing of the money case and he had expressed that conviction by seeking a fresh tribunal for the trial of LAW applications . ”

The court noted that the judge 's task was exceptionally difficult , he having concluded that the applicant had been devious and dishonest in the ancillary case and having then refused to release the later proceedings to another judge . From a careful reading of the transcripts the court considered that the judge 's interventions had been plainly excessive , notwithstanding the submissions on behalf of the mother to the effect that the interventions had been necessary for the judge to retain control of the proceedings . At CARDINAL stage during cross - examination of the mother , there was an exchange between the judge and the applicant covering CARDINAL pages of transcript , during which the witness did not speak at all .

The court did not accept , however , the submission that the applicant had had an equal or even a fair prospect of success in his application for residence , as on any objective analysis his application was an attempt at a radical departure from an established pattern of care and the conclusion of the children and family reporter was obviously an indicator of the probable outcome . The court went on to say ,

“ We gain from the transcripts the distinct impression that in the relationship between the litigant and the judge there quickly emerged a conflict of strong personalities and a clash of arms that drew the judge transiently from the judgment seat to join [ counsel for the mother ] in the arena in harrying the husband . ... But the number of interventions that bear the mark of hostility or unfairness are small in the overall total and do not justify setting aside the fundamental order that these CARDINAL children should reside with their mother . We are satisfied based on the totality of the evidence that we have read that the judge reached the correct conclusion on this issue . ”

The court found that the applicant had not discharged the high burden necessary for it to conclude that he had been driven to withdraw from the proceedings because the hearing was unfair . It did , however , consider that the applicant 's submission about the judge 's reaction to his withdrawal had “ great force ” . The judge had proceeded to make orders which were , individually and in their totality , “ immoderate ” . Mr Justice Singer in his judgment had rejected the applicant 's case without qualification and had marginalised the welfare report , without hearing from the author . The court found that the reduction in contact and the prohibition on communication had a punitive flavour and that there was no evidential basis for the non - molestation injunction . The application for an order under LAW of LAW and the suggestion that the applicant see a psychiatrist were nothing but flourishes of advocacy . Both the recital to the order and the requirement to surrender the passports served to stigmatise the applicant in an unwarranted way . The indefinite prohibition on publication was unnecessary . There was no sustainable basis for the order for indemnity costs .

The court concluded however that the prospect of returning the case for trial in ORG , given the costs involved and the inevitable damage that was being caused to the children , was too unappealing to contemplate and it would therefore substitute its own order for that of DATE . The court also observed that , since DATE , the applicant had not seen the children except by chance , having declined to exercise contact on the basis of the judge 's order . The residence order was retained , but the recital and paragraphs CARDINAL to CARDINAL of the order were deleted . Contact was ordered on TIME and with CARDINAL the school holidays , as recommended by the welfare officer . Given the applicant 's unreasonable rejection of that proposal prior to the trial and his insistence on calling various lay witnesses the court considered it was not unfair that he should have to pay the costs , but they would be assessed on the standard basis ( by which any doubt as to whether costs were reasonably incurred or reasonable and proportionate in amount is resolved in favour of the paying party ) .

A separate constitution of the Court of Appeal gave judgment in the ancillary proceedings on DATE . The applicant submitted , inter alia , that the judge had reached the wrong conclusions on the evidence , but even on the basis of his findings , the orders made were inexplicable and unjustified . He submitted that the personal animosity of the judge in the LAW proceedings had carried over into and affected the ancillary judgment .

ORG considered that Mr Justice PERSON 's judgment was detailed and careful and that the judge 's conclusions were on the whole “ carefully reasoned and manifestly justifiable on the evidence ” . The judge 's extensive survey of the issues had led him to be strongly critical of the applicant 's disclosure and integrity . The court had reserved judgment so as to ensure that the applicant 's arguments as to bias in the Children Act proceedings could be aired first . The court noted that in those proceedings the appeal court had not found that the hearing had been unfair overall . Moreover , although the judge had referred in his judgment to his findings against the applicant in LAW proceedings , his conclusions in the ancillary case were not dependent on those findings .

The court noted that Mr Justice Singer 's findings as to Site B were the crux of the judgment and lay behind the only real issue on appeal . The judge had accepted that there could be major difficulties with an attempted sale of Site B and broadly found in favour of the applicant 's submissions as to the potential effect of the title defect in this respect . The judge had clearly been suspicious about the fact that the applicant had not initially relied on the alleged title defects and considered that the applicant may not have revealed the full strength of his hand , so that the true position would only come to light when the applicant actually sought to realise the value of the property . However , he indicated that for valuation purposes he would not treat Site B as a readily realisable asset . The court noted the uncontested evidence to the effect that if a sale of Site B presented problems , then so would any attempt to borrow against it as security .

The court concluded that the applicant 's submissions as to bias were generally without validity . In fact , up to its final conclusions , the judgment was a ' detailed and masterly appraisal ' . The court did however agree that , given his findings on Site B , it was difficult to see how the judge could have expected the applicant to raise the necessary funds immediately . The court further found that there was no justification for instant enforcement through receivership , which was almost unknown in ancillary relief proceedings . The provision for instant payment and enforcement was oppressive . Given the judge 's findings as to the potential problems with Site B , the applicant could only realistically be expected to satisfy the order from the rental income , which was a long term approach . The option of remitting the matter for retrial was unthinkable given the costs already incurred . The court considered that it would take DATE to pay off the lump sum by that route and amended the order , allowing the appeal to that extent . The powers of the receiver were also limited to collection and distribution of the income from Site B. The court did not interfere with the costs order .

On DATE ORG dismissed the applicant 's petition seeking leave to appeal .

In a case of alleged bias , the test for the court to consider was set out in NORP v. PERSON ( [ DATE ] A.C. CARDINAL ) . Having ascertained the relevant circumstances , the court should ask itself whether there was a real danger of bias on the part of the relevant member of the tribunal , in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration , a test confirmed in the case of GPE ( GPE ) Ltd. v. ORG ( [ DATE ] CARDINAL WLR CARDINAL ) . In the recent case of PERSON ; PERSON v. DATE ] CARDINAL AC CARDINAL , Lord Hope stated :

“ The question is whether the fair - minded and informed observer , having considered the facts , would conclude that there was a real possibility that the tribunal was biased . ”


The applicant , PERSON , is a GPE national , born in DATE and living in GPE . He is represented before the Court by PERSON NORP PERSON , a lawyer practising in GPE . The respondent Government are represented by their agent , PERSON , ORG .

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

On DATE CARDINAL the applicant was convicted by a jury at ORG of CARDINAL armed robberies committed DATE . He was sentenced to DATE imprisonment .

The applicant was arrested at his mother ’s flat TIME after the fourth robbery . The police searched his room and claimed to have found clothing similar to that worn by the robber according to a photograph taken by a security camera at the fourth robbery . The applicant denied owning these articles and contended that they were not found in his room but were instead supplied by the police in order falsely to implicate him .

Following his arrest the applicant was taken to ORG where he was interviewed by PERSON and PERSON . At trial , the applicant claimed that during this first interview , of which no note was made , the officers told him that CARDINAL of the robberies had been committed by CARDINAL men and that the get - away car had been a blue ORG , registration number ORG CARDINALN. During the trial the police denied that there had been such a “ first interview ” or that mention of a blue ORG had ever been made in the course of the investigation , except as a “ ploy ” to put the applicant off his guard .

A second interview was not in dispute , and the applicant signed the note recording his account of his movements on DATE of the fourth robbery . The events which took place during a third interview were , however , also disputed as were certain incriminating statements which police officers claimed the applicant had made during a car journey to retrace that taken by the applicant in the red Escort . The applicant accepted that he signed a record of the conversation in the car , but claimed that the record had been written on alternate lines on a lined notebook . By the time of the trial , the blank lines had been completed , to include admissions by the applicant that he had hidden from the police and “ spent some of the money ” . Forensic examination carried out for the purposes of the applicant ’s appeal indicated that the lines containing the incriminating comments had been added at DATE .

At trial , the applicant denied any involvement in the robberies and he gave evidence and called witnesses to show that he had been elsewhere at the relevant times . For the prosecution , in addition to the clothing and identification evidence referred to above , QUANTITY police officers gave evidence as to admissions allegedly made by the applicant in the course of interviews . The applicant was convicted by the jury ’s unanimous verdict .

On DATE ORG refused the applicant leave to appeal against conviction or sentence .

The applicant maintained his allegations against the police and in DATE GPE Police opened an inquiry to investigate them .

In DATE the applicant ’s petition to ORG asking for his case to be referred to ORG was rejected .

DATE the applicant secured reports by forensic scientists which cast doubt on the authenticity of some of the police interview records relied upon by the prosecution . On the basis of these reports , in DATE , he made a second petition to ORG .

In DATE the West Yorkshire Police presented a report of its investigation to ORG . The applicant was informed that on the basis of this report it had been decided that no disciplinary action or proceedings were warranted against the officers involved in his case .

In DATE , however , further forensic reports were completed which cast fresh doubt on the authenticity of the interview records . DATE ORG ordered ORG to conduct an investigation into the applicant ’s allegations . The investigating officers searched the lockers at FAC police station and discovered a file marked “ FAC ” which contained an envelope marked “ FAC ” and a note recording the name and address of an ambulance driver , PERSON , who had seen a dark blue car , “ possibly a Mark CARDINAL Cortina ” , driving at speed from the vicinity of the last robbery at the relevant time .

On DATE the ORG Secretary referred the case to ORG . The appeal was heard in DATE . PERSON was traced and called to give evidence on behalf of the applicant . He testified as to an incident which had occurred at either TIME in which , while waiting in his ambulance , he had seen a blue ORG approaching from the direction of the estate agents’ offices . As the car pulled up at the kerb opposite him , a second man , carrying what looked like a blue cash bag of the type provided by banks , ran from the direction of the estate agents and got into the passenger seat . The car then drove off at speed . Mr L told the court that his assistant had made a note of DATE of the car registration number , and that he had immediately reported what he had seen to the police at FAC , stating that he thought that it had been a robbery in progress . He had never been asked to give a statement until he was contacted by the applicant ’s solicitors DATE after the event .

ORG did not call the police officers involved in the original investigation and prosecution of the applicant to give evidence .

Lord Justice PERSON in ORG observed in connection with the ambulance driver ’s evidence and the documents found by ORG in the lockers at FAC police station :

Having heard [ Mr L ’s ] evidence , we were satisfied that at the time of the interviews referred to by the appellant no - one at FAC knew the index number of the blue ORG reported by [ Mr L ] . We are also satisfied that the index number ONT CARDINALN was an index number known to the appellant and introduced by him into evidence at the trial . On the information available to us , it was first mentioned either in the cross - examination of ORG or during the evidence in chief of the appellant . We are satisfied that at no time did [ Mr L ] have the full index number of the blue ORG which he reported , that in all probability interest in the blue ORG evaporated after the far more detailed report received from [ PERSON ] and that the first mention of the index number was made by the appellant as we have indicated . [ Counsel for the prosecution ] accepted that , had the prosecution been aware at the time of the existence of [ Mr L ’s ] report , the defence should have been told . But in the result his description of the type of bag carried by the person he saw was so different from the white plastic bag carried by the person who carried out the robbery ... that his evidence did not detract in any way from that of [ Mrs H ] who had noticed and clearly described the white plastic bag carried by the man who ran past her . Further , as the defence apparently knew the registration number of the vehicle , they could have made enquiries at the time . We are satisfied that the evidence of [ Mr L ] would not afford any ground for allowing the appeal , and that it was not consciously withheld from the defence . In the circumstances we do not think that the failure to disclose the report of [ Mr L ] was material . There remains the question whether , in stating at trial that the introduction of the blue ORG into the interview with the appellant was a ‘ ploy’ , ORG was telling CARDINAL the truth . It could , of course , have been the case that ORG both knew of [ Mr L ’s ] report and used it as a ploy . If we are correct in thinking that [ Mr L ’s ] report was not followed up in the course of the investigation , it seems to us not improbable that Inspector PERSON may subconsciously have referred to the blue ORG because he had heard a report of such a sighting but by the time of the trial he had dismissed that report from his mind as a reason why he had introduced the blue ORG . It is , however , a matter which we bear in mind when we have to assess the overall reliability of ORG evidence . ”

In addition , ORG heard evidence from a number of expert witnesses . Having heard the evidence of CARDINAL experts who had examined the security camera photographs , the court decided that the robber could have been of a height similar to the applicant . It considered that further forensic evidence relating to a pair of shoes , said to have been found in the applicant ’s bedroom , served only to reinforce the view that they had been regularly worn by the applicant .

Having heard forensic evidence suggesting that alternate lines of the record of the conversation between the applicant and police officers in the car might have been added at DATE , the court said :

“ In approaching this aspect of the case we remind ourselves that the allegations made against police officers that they have deliberately falsified an interview are extremely serious . We do not feel that the evidence adduced is sufficiently cogent to lead to the conclusion that ORG added alternate lines to the record of the discussion during the journey in the car . We are certainly not prepared to reject the whole of the evidence given by police officers of ORG as suggested by [ the defence counsel ] . Whilst we think it unlikely that the words ‘ and ORG and ‘ where I spent some of the money’ were added to the record by ORG after the appellant had signed the record of the conversation , we also consider that it would be surprising if the appellant , who had persistently denied that he had committed the robbery , made these statements in an unguarded moment on this car journey . Accordingly we consider that we should disregard them altogether in deciding whether the conviction of the appellant was safe . ”

ORG dismissed the appeal on DATE , because it did not find that the applicant ’s conviction was unsafe ( section CARDINAL(CARDINAL ) of LAW DATE as amended by LAW ) .

The applicant had also applied to ORG for leave to appeal to ORG . He was informed by a letter dated CARDINAL DATE that ORG had refused to issue a certificate under section ORG ) of LAW DATE ( see below ) and had refused leave to appeal to ORG . By a letter dated DATE , the applicant ’s solicitors reapplied to ORG for leave to appeal to ORG and requested the court to hear oral argument on this question , since counsel had understood that an oral hearing was to have taken place before the court decided the issue in the first place . According to the applicants’ solicitors , this request was refused by telephone some time after DATE ( the date of the introduction of the application to ORG ) .

In DATE ORG informed the applicant that its investigation had produced evidence suggesting that a number of officers had given false or misleading evidence at trial and that those officers still serving with the police would be reprimanded .

In criminal cases , there is a right of appeal from ORG to ORG , if leave is granted by either court . LAW DATE provides in section ORG ) that “ leave shall not be granted unless it is certified by ORG that a point of law of general importance is involved in the decision and it appears to ORG or ORG ( as the case may be ) that the point is one which ought to be considered by the ORG ” .

ORG was created by CARDINAL of ORG “ PACE ” ) . It is an independent body empowered to receive complaints as to the conduct of police officers . It has powers to refer charges of criminal offences to ORG and itself to bring disciplinary charges . Under section CARDINAL(CARDINAL ) of PACE the ORG is to have regard to any guidance given to it by the Secretary of ORG with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings .