Violation of Art. 8;No separate issue under Art. 14+8;No separate issue under P1-1;No separate issue under Art. 6;No violation of Art. 6;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in or about GPE .

The applicant and his family are gypsies . They led a traditional travelling lifestyle until they suffered so much from being moved on with ever increasing frequency and harassment that they settled on the gypsy site run by the local authority at ORG . They lived there permanently for DATE , until DATE when they moved off . They stated that they moved off the site at that time due to the anti - social behaviour of others living on the site and others who came onto the site , e.g. vehicles being driven round the site at TIME , violence and disturbances such that they could not sleep at TIME or the children play safely during DATE . They moved into a rented house but were unable to adapt to these conditions . They gave up their tenancy when offered CARDINAL plots for the family at LOC .

The applicant returned to the site with his family in DATE .

By a licence agreement dated DATE , ORG ( “ the Council ” ) granted the applicant and his wife a contractual licence to occupy plot no . CARDINAL at GPE caravan site in GPE . The licence in Clause CARDINAL required the applicant as occupier to comply with LAW , while Clause CARDINAL stated :

“ No nuisance is to be caused by the occupier , his guests , nor any member of his family to any other person , including employees of the ORG , the occupiers of any other plots on the Site , or occupiers of any land or buildings in the vicinity of the Site . ”

NORP On DATE , the applicant ’s adult daughter PERSON was granted a licence to occupy the adjacent plot , Plot CARDINAL , where she lived with PERSON who later became her husband . She also cared for the applicant ’s mother - in - law , PERSON , until she went into a residential nursing home in the area . The applicant ’s adult sons , PERSON and PERSON , did not reside with the applicant but were frequent visitors both to his plot and their sister next door .

During DATE , the applicant and his family were in dispute with the ORG due to its alleged failure to undertake repairs on Plot CARDINAL ( there was no electricity supply or other facilities for some time ) , their objection to paying electricity charges which they considered to be overcharging and concerning the ORG ’s refusal to accept payment by instalment for the site deposit . Their complaints were referred to ORG to investigate .

The Government stated that the applicant ’s children ( including his adult sons PERSON and PERSON ) and PERSON misbehaved and caused considerable nuisance at the site . ORG Manager , based at the site , was aware of many incidents of nuisance caused by the applicant ’s children and visitors . The Manager visited the applicant and PERSON on a number of occasions to report the misbehaviour and nuisance . On DATE , the ORG gave the applicant written warning that further incidents of anti - social behaviour by his children could jeopardise his occupation of the plot . Nevertheless , both the applicant ’s children and his visitor PERSON continued to cause nuisance at the caravan site .

NORP In DATE , when it became known that PERSON was going to marry PERSON , the applicant alleged that the ORG manager of the site stated , “ The minute you marry PERSON you ’ll be out that gate ” . PERSON was a member of a family against whom proceedings had previously been brought for eviction from the site on allegations that they were “ a magnet for trouble ” . In DATE , the PERSON family had moved from the site . They remained in the GPE area until DATE when they went to GPE .

On DATE , notice to quit was served on the family requiring them to vacate both plots . No written or detailed reasons were given by the ORG , though the issue of “ magnet for troublemakers ” had been raised .

On DATE , PERSON married PERSON and they continued to live on Plot CARDINAL .

On DATE , the ORG issued CARDINAL sets of proceedings for summary possession pursuant to LAW , CARDINAL concerning the applicant and his wife and family on LAW and the other against PERSON and “ persons unknown ” on Plot CARDINAL . On DATE , the applicant was served with various documents . The grounds for possession stated that the defendants were in occupation without licence or consent . In the witness statement dated CARDINAL DATE , the site manager referred to Clause CARDINAL of the licence agreement and asserted that the defendants had breached the licence agreement and that he had given them notice to quit . No particulars of breach were given . He also asserted that the necessary investigation into the needs of the defendants had been made in accordance with the guidelines set out in ORG CARDINAL/CARDINAL .

The applicant disputed that they were in breach of ORG DATE , that any possible alternative approaches had been taken to any problems and also that any appropriate enquiries had been made into their welfare .

At this stage , the applicant ’s family consisted of his children PERSON aged DATE , PERSON DATE , PERSON aged DATE and PERSON aged DATE . PERSON had been suffering from serious illness , with kidney problems and rashes of unknown origin , while the applicant ’s wife , who was asthmatic , had suffered several attacks requiring visits to hospital . The applicant himself had been having chest pains and was awaiting a hospital appointment . PERSON had settled well into full - time education at the nearby primary school , and the others were receiving assistance , including teaching at home .

The ORG served further witness statements containing particulars of the allegations of nuisance . These were disputed by the applicant . They related largely to PERSON and PERSON on Plot CARDINAL .

On DATE , the summary possession proceedings were adjourned pending the determination of the applicant ’s application for permission to apply for judicial review of the ORG ’s decision to determine the licence of his plot which had been lodged on DATE . During the hearing , PERSON and PERSON indicated an intention to leave the site . As the bulk of the complaints were against them , the applicant stated that the ORG were requested to review its decision to terminate the licence of the applicant and his family .

On DATE , ORG refused permission to apply for judicial review . The judge noted that the applicant ’s counsel accepted that the necessary investigations had been carried out by the ORG and rejected as unarguable the contention , as regarded procedural fairness , that the applicant had not been given prior warning of the threat of eviction .

On DATE , the applicant applied to the Director General of ORG for a ruling that the terms of the licence agreement were unfair , in particular that ORG CARDINAL was unfair in holding him responsible for the actions of visitors whom he could not reasonably be expected to control .

The ORG took the decision to proceed with the eviction . It dropped the allegations of breach of licence and asserted a right to summary possession on the basis that the family were trespassers as permission to occupy the land had been withdrawn . On DATE , ORG granted a possession order . The ORG undertook not to execute a warrant for possession until DATE on condition that the applicant and his family were of good behaviour and kept the peace .

Further representations were made by the applicant to the ORG without success .

On DATE , as the applicant had not given up possession , the ORG obtained a warrant for possession of the plot . The ORG stated that the applicant and his family barricaded themselves in the plot and refused to leave when ORG bailiffs attended to execute the warrant . The ORG applied to ORG for enforcement of the order for possession . On DATE , ORG ordered the ORG to execute the warrant for possession . The ORG ’s officer , the bailiffs and the LOC police carried out a planning and risk assessment . The GPE ’s officer attended the site and requested the applicant to vacate the plot . He refused .

On DATE , early in the morning , the ORG commenced enforcement of the eviction , in an operation involving ORG officers , the ORG ’s officers and numerous police officers . The applicant stated that also police helicopter , police dogs , control centre , numerous police vehicles and detention vans were employed . The operation lasted TIME .

The Government stated that the police arrested the applicant and his son PERSON for obstruction under section CARDINAL of LAW DATE . The applicant stated that he was attempting to carry out items of property to a trailer when he was stopped by bailiffs and arrested . He was handcuffed and held in a police van for an hour and subsequently at the police station , though he was complaining of chest pains . At TIME , he was taken to hospital for emergency admission .

According to the applicant , his DATE son PERSON was also seized and held in a van by the police for TIME during the eviction . The applicant ’s wife was left to cope alone , the baby PERSON being ill .

The family ’s CARDINAL caravans were removed ( they owned CARDINAL and the other was rented ) . The applicant stated that it was not until TIME that their own caravan was returned to them . However many of their possessions were still held by the ORG , including medicine needed for PERSON . During DATE , the ORG returned their possessions , including a washing machine , drier , microwave , gas bottles , kettle and clothing . This was dumped on the roadside some distance away from the applicant ’s caravan . The ORG stated that on CARDINAL DATE the ORG removed from the plot to safe storage goods and personal property that the applicant and his family had failed to take with them . At the request of the applicant , the ORG returned these goods and personal property to the family who had meanwhile taken up occupation on land nearby at FAC owned by ORG , where the presence of gypsies was sometimes tolerated for short periods . As they claimed it was not possible to get into the field to deliver the goods directly , the ORG unloaded the goods at the edge of the field , informed the applicant and kept watch until they were collected .

A group of gypsies was at that time on the land at FAC for the purpose of attending a wedding . This group did not however leave by DATE as previously agreed , staying on to attend the funeral of a baby who had died on DATE . The ORG prepared eviction proceedings and included the applicants as “ persons unknown ” . The applicant alleges that no assistance or advice was given to them as to where they could go , save for an offer of accommodation at GPE ( on the east coast ) which failed to take into account the local community ties of the family who had lived on LOC site for DATE and in the GPE area for DATE .

An application for adjournment of the possession proceedings was rejected by ORG on DATE . The applicant and his family moved from the land and travelled around the GPE area stopping for DATE at a time .

The Government stated that the applicant and his family had returned to the caravan site CARDINAL times since as trespassers . The ORG applied for an injunction to ban the applicant and his family from entering the site . The outcome of these proceedings is not known .

The applicant stated that following the eviction he and his family were required to move on repeatedly . Partly at least due to the stress and uncertainty , the applicant ’s wife chose to move into a house with the younger children and they were separated in DATE . PERSON lived for a while with the applicant . Following the eviction , he did not return to school . The applicant stated that he continued to travel in his caravan , with his son PERSON and occasionally PERSON , but that they were unable generally to remain in any place for DATE . He continued to have chest pains for which he received medication and tests . As he had no permanent address , he used his wife ’s address for postal purposes , including medical appointments .

Prior to DATE , LAW DATE provided in section CARDINAL that it should be the duty of local authorities “ to exercise their powers ... so far as may be necessary to provide adequate accommodation for gypsies residing in or resorting to their area ” . The Secretary of ORG could direct local authorities to provide caravan sites where it appeared to him to be necessary ( section CARDINAL ) . In addition , MONEY ( GBP ) was spent under a scheme by which MONEY grants were made available to local authorities to cover the costs of creating gypsy sites .

Section CARDINAL of the Criminal Justice and LAW DATE ( “ the DATE LAW ) , which came into force on DATE , repealed sections CARDINAL of LAW and the grant scheme referred to above . The change in policy underlying the repeal was explained by the Parliamentary Under - Secretary of ORG :

“ In DATE the number of gypsy caravans stationed on unauthorised sites has remained broadly the same ... The shortfall in provision has been largely due to natural growth in the gypsy population . Plainly site provision is barely keeping pace with the growth in demand and is not reducing the shortfall ...

We recognise that council site provision has contributed to alleviating the difficulties experienced by the gypsy community . Indeed the predicament of gypsies in GPE and GPE is now far different from in DATE . At that time , probably CARDINAL per cent of gypsy caravans in GPE and GPE were stationed on authorised sites , whereas the figure is now MONEY . A further MONEY are on authorised private sites , and many more are stationed on tolerated sites where they are allowed to stay with reasonable security from eviction . ...

We believe that public provision of sites has now reached an acceptable level . Public accommodation has been provided for MONEY of the total number of gypsy caravans in GPE and GPE . We do not believe that it is in the public interest to continue to maintain what has become an open - ended commitment to provide sites for all gypsies seeking accommodation at the public ’s expense . It is our view that the right approach now is to encourage more gypsies to establish their own sites through the planning system . We know that many gypsy families would prefer to establish their own sites rather than reside on council sites . ORG has for a long time supported the case for private provision . Private site provision has increased by CARDINAL per cent since DATE . Our intention is to encourage that trend . ”

Local authorities remain empowered to provide gypsy sites under section CARDINAL of the DATE Act and such sites remain the largest single component of the overall supply . Under current policy guidance , the Government have emphasised the importance that local authorities maintain their existing sites and consider if it is appropriate to provide further sites ( Circular CARDINAL , paragraphs CARDINAL ) . In DATE , the ORG announced that they were making available MONEY over DATE to help local authorities to maintain their sites .

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

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

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

Guidance issued by the Secretary of ORG dated DATE ( Circular CARDINAL ) concerned the unauthorised camping by gypsies and the power to give a direction to leave the land ( CJPOA above ) . Paragraphs CARDINAL - CARDINAL required local authorities to adopt “ a policy of toleration towards unauthorised gypsy encampments ” :

“ CARDINAL . ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which can not be effectively controlled , an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance . Accordingly , authorities should consider tolerating PERSON presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites , for example by providing basic services for gypsies e.g. toilets , a skip for refuse and a supply of drinking water . ...

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

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

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

Occupiers of gypsy caravan sites run by a local authority receive limited security of tenure pursuant to Part CARDINAL of the CARDINAL Act . An occupier ’s contractual right can be determined by DATE notice and he may only be evicted by court order . Local authorities are in addition required to have regard to the guidance on best practice in managing gypsy sites , e.g. such as set out Circular CARDINAL concerning statutory duties to support children , to house the homeless and make appropriate educational provision for school - age children . A local authority failing to have regard to that guidance might be subject to challenge by way of judicial review .

The Mobile Homes Act DATE ( LAW ) confers further protection upon a person who lives in a caravan or mobile home as his only or main residence . Such a person may not be evicted save by court order and on the site owner having established CARDINAL of the stated grounds , inter alia , that the court is satisfied that the occupier is in breach of the licence agreement and has failed to remedy that breach within a reasonable time and that it is reasonable for the agreement to be terminated . This protection was conferred on occupiers of caravans on privately owned residential sites and also the occupiers of local authority sites . However , section CARDINAL ) excluded land run by the local authority as a caravan site for gypsies . The effect of this exclusion was analysed by ORG in ORG v. PERSON ( DATE ) CARDINAL HLR CARDINAL :

“ ... the intention of the legislature in the Act of DATE was clearly to exclude from the definition of ‘ protected ORG sites such as that at ORG provided by local authorities in discharge of their duty under section CARDINAL of the Act of DATE to accommodate those whom they bona fide believe to be gypsies because they are nomadic for part of DATE , notwithstanding that they may establish a permanent residence on the site by returning from DATE ; such a site will not become a ‘ protected ORG even if some of the erstwhile nomads , as well they may , give up their nomadic way of life entirely . It would be different if the local authority adopted a policy of offering vacancies on the site to static residents with fixed full time employment ... ”

Secure tenants of conventional flats or houses provided or managed by local authorities under LAW DATE enjoy a similar regime of security of tenure to that conferred upon occupiers of a residential caravan site by LAW .

A number of cases have been brought in the domestic courts challenging the lack of security of tenure on local authority gypsy sites .

In this case , a gypsy , whose licence to occupy a local authority site had been revoked for alleged misbehaviour , claimed in the proceedings brought for possession of the plot , that the eviction would be in breach of ORG CARDINAL and CARDINAL of the LAW and sought a declaration of incompatibility .

In rejecting the gypsy ’s claims and ordering possession , the High Court judge , Mr Justice PERSON , found that the eviction of the applicant would interfere with his rights under LAW but that the statutory framework , as a matter of general principle and policy , satisfied the requirements of LAW . He noted CARDINAL general points :

“ CARDINAL . ... First , statutory regulation of housing and the consequences of such regulation are matters of some complexity . For example , while security of tenure may be to the advantage of existing tenants or licensees , it may be to the disadvantage of tenants and licensees generally . In the DATE ’s , security of tenure for residential tenants and control of rents were reimposed under ORG . Doubtless those measures were in the short term interests of residential tenants . However , in the long term they led to a reduction in the supply of privately - rented accommodation , which , on CARDINAL view , was disadvantageous to residential tenants and potential tenants generally . There is no simple equation between security of tenure and the public interest .

The second general consideration is related to the first . Housing is very much ‘ the area of policy where the court should defer to the decision of ORG ... The need for , and the consequences of , legislation in this area are matters for ORG , not the court ...

‘ ... We do not lose sight of the fact that courts are not primary decision - makers in areas such as housing policy . GPE confers a wide margin of appreciation in such matters ... our own courts will give a margin of discretion to elected decision - makers , all the more so if primary legislation is under ORG . ORG v. Smart [ DATE ] EWCA Civ . CARDINAL per ORG

NORP The policy behind the exempting provisions was clearly stated by FAC in his speech in ORG in PERSON at DATE ... :

‘ Any other construction of ‘ protected ORG in section CARDINAL ) of the Act of DATE would , it seems to me , cause great difficulties both for local authorities and for most of the gypsy community and would undo much of the good work which has been done in this difficult field . Those already established on sites like Thistlebrook would , of course , enjoy full DATE security of tenure . But local authorities in the position of the council would need to start de novo to discharge their duty under LAW of DATE . Many existing designations under section CARDINAL would have to be revoked or would perhaps be automatically invalidated ... For the future , local authorities establishing new sites providing accommodation for gypsies would have to be vigilant to prevent their residence acquiring any degree of permanency . This , I think , they could in practice only do by applying a short rule - of - thumb limit of stay , which would be quite contrary to the interests of the gypsy community.’

[ Counsel for the defendant gypsy ] submitted that this statement was no longer applicable as a result of the abolition of the duty of the local authority to provide sites for gypsies . I do not accept this submission . The statement of Lord Bridge is equally applicable to the sites which local authorities continue to provide , although they are under no duty to do so . Furthermore , as has been seen , central government guidance is that it is important for those sites to be maintained . ”

The judge quoted at length the evidence of the Secretary of ORG ’s department on the aims of the CARDINAL statutory frameworks , CARDINAL applying to all local authority gypsy caravan sites and the other to all other residential caravan sites run by local authorities and private owners :

“ ‘ CARDINAL . With Part I of LAW , and with the DATE and DATE Acts , ORG sought to address specific problems of commercial exploitation experienced by occupiers of private sites . There has never been any evidence to suggest that such problems extend to local authority Gypsy sites , and accordingly those legislative provisions that are directed at those problems have not been extended to such sites . The problems faced by NORP were wholly different , relating primarily to the acute shortage of sites available to meet their particular accommodation needs . The said problems were addressed by Part II of LAW , and supplemented by the departmental guidance circulars issued to local authorities . By DATE , the scheme of part II of the DATE Act was found to have served its purpose as far as it could reasonably be expected to do . There was now a substantial and valuable supply of Gypsy caravan sites provided and operated by local authorities . The emphasis of Government policy has now changed to CARDINAL of encouraging NORP themselves to add to that existing supply . Nevertheless existing local authority supply remains an essential component of the Government ’s strategy of securing an adequate level of accommodation for LANGUAGE . The policy of LAW is to maintain and safeguard that distinct source of supply .

Thus , I draw particular attention to the fact that the statutory protection afforded by Part CARDINAL of the DATE Act and the DATE and DATE Acts has been and still is available to NORP if they choose to reside at sites other than those provided by local authorities specifically for NORP . In general , the key difference between such sites has been the greater flexibility , which is usually available on local authority Gypsy sites , in order to accommodate the nomadic lifestyle of occupiers . This may allow NORP to remain on a site on a short - term basis , or to retain a site for DATE , while paying a reduced rent as a retainer during DATE while they may be travelling in search of seasonal work . Other local authority sites and private sites , in general , are aimed at longer - term residential occupiers , without the need for such flexibility because they are not pursuing a nomadic lifestyle .

Nevertheless , there are of course a number of NORP who occupy sites on a long - term basis , and other mobile home residents who do not consider themselves to be GPE , but who prefer to occupy private sites on a more short - term basis . The aim of the separate statutory frameworks is to ensure diversity of provision to meet the varying needs of different individuals and families ; it is not to classify or categorise individuals or families . Accordingly , NORP seeking to settle on a more permanent site may occupy private or local authority ( non - Gypsy ) sites and benefit from the scheme put in place by Part I of the CARDINAL Act and LAW . This diversity of public and private site provision reflects that which is available in housing generally .

The separate statutory framework allows for flexibility in meeting the accommodation needs of NORP . It appears that the Defendant is effectively arguing in these proceedings in favour of a single statutory framework applicable to all caravan sites , including local authority Gypsy sites . In my view , such a single statutory framework would be detrimental to the interests of NORP throughout the country . If the security of tenure provisions of that framework applied equally to local authority Gypsy sites , it would undermine the flexibility that such sites provide in catering for the varied lifestyles of GPE . Some may move from site to site on a regular basis , while others may be more permanently based on a site , possibly travelling for DATE to take on seasonal work . If each Gypsy were able to rely on security of tenure then every site , whatever its designation , could potentially become a permanent site with no scope to accommodate short - term occupiers . Furthermore , if there were no longer a distinction in the statutory framework allowing flexibility for the provision of Gypsy sites , then there would be nothing to prevent any person residing in a mobile home seeking to occupy a Gypsy site , whether or not they pursue a nomadic lifestyle . Inevitably , fewer sites , if any , could be made available specifically for NORP pursing a nomadic lifestyle .

Experience suggests that local authorities would face difficulties in managing sites if eviction were subject to broad discretionary powers of the courts to suspend or attach conditions to orders . There is a balance to be struck between the latter and the merits of flexibility ( already mentioned ) that such sites offer in catering for the varying accommodation needs of NORP . To this ( and in favour of the existing position ) must be added the fact that in reaching decisions about evictions local authorities , as responsible bodies , need to take into account the range of obligations and considerations outlined in paragraph CARDINAL above . These amount to significant safeguards against unscrupulous or unjustified evictions . Furthermore local authority decisions in relation to eviction are open to challenge by way of judicial review.’ ”

The judge concluded :

“ CARDINAL . While I am not over - impressed by the vagueness of the statement in paragraph CARDINAL that ‘ experience suggests’ , applying the guidance given by ORG in Smart , this evidence satisfies me that the exempting provisions are ‘ necessary in a democratic society’ , and a proportionate response to a social need , and do not amount to an infringement of LAW . It is true that occupiers of exempted sites do not have the benefit of the safeguards applicable to introductory tenants . In practice , however , they are able to bring judicial review proceedings where the circumstances justify them , and I do not think that the absence of those safeguards substantially prejudices persons such as the Defendant . Moreover , any such safeguards would detract from the flexibility that ORG has decided is appropriate for exempted sites . ...

I can deal with LAW quite shortly . The exemption in section CARDINAL(CARDINAL ) of the ORG is justified by the special position of local authorities and the policy considerations referred to above . The exemption is section CARDINAL of the MHA depends on the status of the site owner as a local authority , and not on any personal quality of the licensee or tenant . It therefore raises no question of discrimination contrary to LAW .

Conclusion

This conclusion is consistent with that of the Commission in P v. GPE ( App . No . CARDINAL ) which rejected as inadmissible the complaint by gypsies that their eviction from an exempted site infringed their rights under ORG CARDINAL and DATE . Mr PERSON submitted that this decision was no longer applicable by reason of the abolition of the duty of local authorities to provide sites for gypsies . As I stated above , I do not regard this as a valid distinction between the present position and that DATE . There are still sites provided by local authorities for gypsies , and indeed if there were none there would be no scope for LAW . ”

In this case , a NORP gypsy , threatened with eviction from a council site , sought a declaration that the provisions of LAW were in breach of ORG CARDINAL and CARDINAL of the Convention insofar as it failed to provide the protection given to secured tenants of local authority conventional housing . In rejecting the application , Mr Justice PERSON noted that the parties had agreed that there had , in the past , been objective justification for the lack of security of tenure of gypsy occupiers of council sites and that the claimant ’s case was that , in light of changes , that was no longer the case . He summarised the Secretary of ORG ’s case for justification for the absence of security of tenure as follows :

“ i. Nomadism . The whole raison d’être for gypsy culture and identity , and indeed its defining factor , given the absence of necessary ethnicity - not all gypsies are PERSON , not least the so - called New Travellers - is nomadism . Hence the definition in LAW ...

ii . Site availability . There must be a substantial availability of sites for gypsies . PERSON referred to the problem of ‘ balance’ in general terms in PERSON in paragraph CARDINAL : [ cited above ] .

The submission is thus that there is no good clogging up all the caravan sites with those who do not move , and effectively removing them from the stock of available sites , by giving security of tenure .

iii . Flexibility . This is reflected in the decision in PERSON . There is a stock of secure pitches on private sites , where there is security of tenure by virtue of the FAC . It is in respect of private sites that protection from commercial exploitation is necessary , and in any event the safeguard of administrative law remedies is not available . Thus the necessary ‘ GPE of private and council , secure or insecure , pitches , is maintained .

Mr PERSON [ Director of Housing at ORG and the Regions ] most clearly sets out the effect of these justifications in combination at paragraph CARDINAL of his reply witness statement :

‘ There are limited resources for providing publicly funded accommodation , whether it be for gypsies or members of the ‘ ORG community . The Government is trying to make sure that there is provision for gypsies who have a nomadic way of life . There are other alternative forms of occupation for those with a settled way of life , which are as equally available to gypsies as they are to any other person . However if accommodation which was intended for those with a nomadic way of life could become converted into accommodation for those with a settled way of life just by the life choices made by the occupants , then this would make planning for nomadic persons by local and central Government very difficult.’

PERSON [ Chairman of ORG , expert witness instructed by the claimant ] , while not challenging the historic justification , submits that it no longer applies :

‘ CARDINAL . Mr PERSON states that the legislation regarding gypsy accommodation is tailored so as to facilitate a nomadic way of life ... The fact is that the nomadic way of life is ending for most gypsies , and therefore the existing legislation is unsatisfactory ...

In conclusion , the situation DATE is very different from what was envisaged at the time of the DATE ... Act and the [ ORG ] . The examples I have given of the low turnover and lack of vacancies show that council sites are becoming permanent residences for most of the families . They often have mobile homes and utility buildings . In this changed situation there seems no reason why residents should not have the same right as the tenants of council housing or non - Gypsy mobile home sites.’ ”

The judge summarised the statements of both PERSON and PERSON PERSON concerning the differing patterns of life chosen by gypsies : Mr PERSON emphasised the flexibility necessary to cope with those who move on a regular basis or were permanently based on CARDINAL site but possibly travelling DATE while PERSON stated that position had substantially moved on from the time of LAW when it was anticipated that PERCENT of families travelled , that local authorities even encouraged families to become permanent residents by allowing them to leave for periods and pay CARDINAL rent and that for the small minority that travelled all year round there were the existing small number of transit sites . The judge then summarised the conclusions of the DATE report ( see below ) which was found to be the most significant feature in the evidence before him .

The judge concluded :

“ CARDINAL . It is plain from the passages of the DATE Report that I have cited that it is now accepted that there is a substantial majority that no longer travels for any material period , albeit that there is a substantial minority that does travel . No figures have been produced , and , as PERSON himself has pointed out , no statistics as to turnover yet exist , but the varied passages from the ORG which I have cited in paragraph CARDINAL ) show that it is accepted that some thinking must now be done . Nevertheless when asked by me whether the Secretary of ORG wanted an adjournment to consider the position further , Mr Mould clearly stated that no such adjournment was sought , and that his case remains that , rethink though there plainly is going to be , the Secretary of ORG still accepts the onus of showing that the present legislation can still be justified . This is not a case , as adumbrated in PERSON and PERSON , where the Government now accepts that the position can no longer be justified but asserts an entitlement to a period to correct discriminatory effects before a declaration is made ... but rather a situation where the Government is still in the process of monitoring the position and , until it reaches a conclusion , asserts that the present position can be justified .

If this were simply a matter of concluding that there is now a substantial majority of gypsies who are no longer nomadic , whose position can be immediately safeguarded by some new legislation of the kind discussed in general terms in paragraph CARDINAL above , I would not feel inhibited either by the well - established principles of allowing deference and/or a margin of appreciation to Government or ORG ... nor in particular by the principle enunciated by ORG ... whereby the ‘ possible existence of alternative solutions does not in itself render the contested legislation unjustified’ . However I am satisfied that the position is not so straightforward . There is , in my judgment , quite apart from any simple question of giving security of tenure to those in council caravan sites , a necessary , indeed , crucial , concomitant question to be considered and resolved , before it can be concluded that the present position is unjustified . I conclude that there is a very difficult question of how to define gypsies , to whom security of tenure in such sites is to be given ( if it is ) . If security of tenure is to be given to all long - term caravan occupiers on council sites , as they are on private sites , then how , if at all , is there to be any differentiation between gypsy / traveller occupiers and any other occupiers who wish to place a mobile home on a local authority site , with security of tenure ? And if there is to be no such differentiation , then the last state of gypsies whose cultural heritage or spiritual and cultural state of mind is nomadism or travelling may be worse than the first . At present that actual or potential nomadism ( ‘ a substantial nomadic habit of life’ ) is the justification both for the lack of security of tenure and also for the special arrangements for local authority sites catering especially for them , i.e. within section CARDINAL of GPE and ORG DATE . PERSON himself refers obliquely to the problem , in paragraph CARDINAL of his witness statement : “ The residents of council sites do not have to retain their Gypsy status ( by travelling for an economic purpose ... ) in order to retain their pitches . ” ...

I am satisfied that ... the absence of security of tenure for all gypsy / travellers on all local authority sites , is still appropriate and justified . I have no doubt that the ORG will give further thought to the position , as indicated in DATE , will obtain the necessary further statistics and will , pursuant to its own declared intention to give protection to gypsies and their way of life , continue monitoring the present position . Meanwhile , the safeguard of judicial review remains , and , although there is some discussion in the ORG ( pp . CARDINAL - CARDINAL ) about the present lack of security of tenure , eviction of residential gypsy occupiers on local authority caravan sites is not flagged up as a present problem ... ”

In this case , which dealt with local authority housing for the homeless that fell outside security of tenure provisions , ORG rejected the ORG claims that their summary eviction breached ORG CARDINAL or CARDINAL of the Convention :

“ If this court were to hold that a tenant in the circumstances of either of these appellants is by force of Article PERSON ) entitled to have the county court judge ( or the judicial review court it matters not ) decide on the particular facts whether her eviction is disproportionate to the council ’s aim ( in essence ) of managing its housing stock properly , we would in effect thereby convert the non - secure tenancies enjoyed by homeless persons into a form of secure tenancy . We should be imposing a condition , not unlike the requirement of reasonableness presently applicable in relation to secure tenancies under LAW , which takes the judgment whether possession of the LOC should be obtained from the landlord council and gives it to the court ... [the NORP argument ] ... amounts in truth to a ‘ macro’ assault on the mechanics of the statutory scheme for protection of homeless persons ... ”

NORP This report , issued by ORG Deputy Prime Minister , summarises the information and conclusions of research on the extent and quality of local authority gypsy sites carried out by ORG at ORG .

In ORG , it is noted that :

“ – There is no clear , widely understood national policy towards accommodation for NORP and other Travellers in England ; there is a general feeling that such a policy is needed involving local authorities and others but with a strong lead from central government .

– There are CARDINAL local authority sites providing CARDINAL pitches . It is important that the existing network is retained and currently closed sites brought back into use . ...

– We estimate that CARDINAL additional residential pitches will be needed over DATE . CARDINAL additional pitches on transit sites or stopping places will also be needed to accommodate nomadism . The latter need to form a national network .

– There are obvious barriers to site provision , especially through resistance from the settled community . Many believe a statutory duty and central subsidy are needed to ‘ GPE local authorities to make provision . Treating site provision in the same way as housing for planning purposes could help .

– Site management is more intensive than is usual for social housing management and requires higher staff / resident ratios . It should be ‘ firm but ORG . There are areas where greater formality might be introduced , including performance monitoring ... ”

Concerning the legal definition of a gypsy ( page CARDINAL ) :

“ The legal definition of a ‘ ORG is ‘ persons of nomadic habit of life , whatever their race or origin’ , excluding members of an organised group of travelling showmen or those engaged in travelling circuses . This was clarified in the case of NORP v. NORP ex parte PERSON as ‘ persons who wander or travel for the purpose of making or seeking their livelihood not persons who move from place to place without any connection between their movement and their means of livelihood)’ . Thus the legal definition is explicitly concerned with habitual lifestyle rather than ethnicity , and may include both ‘ ORG Gypsies or Travellers and ‘ elective’ Travellers such as the so - called ORG , once a sufficient nomadic habit of life has been established .

Alongside the legal definition , there is an ethnic definition of a Gypsy or Traveller ... Romany Gypsies were accepted as an ethnic group for race relations legislation in DATE . Irish Travellers ... were accepted as an ethnic group for race relations legislation in DATE . ”

Concerning travelling ( page CARDINAL) :

“ Not all ethnic NORP and other Travellers travel regularly . A range of travelling patterns exists . Frequency of travel ranges from full - time Travellers with no fixed base , to families who live in one place most of DATE , but still travel with living vehicles for DATE or family events . Some travel long distances across regions even countries , while some regular travellers never leave a single town . Travelling is part of the cultural heritage of traditional Gypsies and Travellers , and is still culturally important , even for those who no longer actively travel ...

There are some indications that fewer ORG now travel full - time , and some have ‘ ORG for a combination of reasons related to personal circumstances , greater difficulties in travelling and finding safe places to stop , and a desire for a more comfortable lifestyle and education for children . However it would be unwise to assume that any trend towards greater ‘ ORG is universal , or unidirectional . Individuals can pass from CARDINAL pattern of travelling to another in line with family cycle , health and personal circumstances . ”

Concerning overall Gypsy / Traveller Accommodation Issues ( page CARDINAL ) :

“ In most local authorities ORG accommodation policies are not well - developed , if they exist at all . ... In part this reflects the lack of a specific duty to consider ORG needs , and in part a tendency to equate ORG accommodation with site provision - so an authority without a site has no policy .

Where policies exist , they are not always comprehensive and integrated ... History and individual personalities seem to have an influence on the approach taken locally . Most policies have been developed without input from NORP and other Travellers ... ”

Concerning site dynamics and turnover ( pages CARDINAL - CARDINAL ) :

“ Most residential ORG sites appear to have a very low turnover , and are stable . Most residents have lived on site for DATE or more on PERCENT of sites . ... While there are exceptions , the general picture built up of residential ORG sites is that they are stable , with long - term residents who travel little during the course of DATE . It may be that , for many residents , the attractions of the site lie in the possibilities of living in a trailer ( attractive for cultural reasons and leaving the option of travel open ) and of living within a culturally distinct community among friends and family . This is not necessarily the same as meeting the needs of a nomadic or semi - nomadic population . For many residential site residents , nomadism appears to be a spiritual and cultural state of mind , rather than a day - to - day reality . ”

( DATE ) :

“ Pitch vacancies on residential sites arise infrequently . CARDINAL out of CARDINAL residential sites have a waiting list for places ... ”

Concerning licence agreements , rules and enforcement ( page CARDINAL ) :

“ Enforcement of licence conditions is an important element in overall site management . The ultimate sanction – very rarely evoked in the case studies - is eviction , but most action occurs well before this stage . ... ”

Concerning accommodation for nomadism ( page CARDINAL ) :

“ An unknown proportion of NORP and other Travellers still actively travel whether throughout DATE , DATE or on special or family occasions . Those who travel throughout DATE may have no fixed base at all ... There is little formal provision to accommodate Travellers and their trailers while on the road . There are CARDINAL transit pitches provided on local authority sites . Recent Gypsy counts have shown roughly CARDINAL times as many caravans on unauthorised encampments . Even taking into account the unknown number of private transit pitches , it is clear that ‘ ORG is currently mostly accommodated informally and often DATE from the viewpoint of both the settled community and Travellers – unsatisfactorily .

... The need for a range of transit accommodation has been recognised for DATE , yet supply is still small and , as this research has shown , actually shrinking ... ”

Concerning conclusions and recommendations :

“ CARDINAL of the clearest conclusions from the research is the lack of any clear , widely understood national policy towards accommodation for NORP and other Travellers in England , and a general feeling that such a policy is needed .... ” ( page CARDINAL )

“ Another very clear conclusion from the research is that NORP and other Travellers are often socially excluded and still suffer discrimination in many areas of life . There is a need for a clear central lead to affirm the legitimacy of a nomadic way of life and to challenge racism and discrimination against NORP and other Travellers . There is also a need to make NORP and other Travellers less ‘ invisible’ in policies aimed to help socially and economically disadvantaged groups . ... ” ( page CARDINAL )

“ Another approach worth considering it to bring site provision more closely within mainstream housing . Given the stability discovered on many residential sites , it seems entirely appropriate to see them as a form of specially adapted housing for NORP and other ORG Housing associations could become involved in site provision and management and ORG could provide social housing grant as for other general and special needs housing . Issues around site licensing and model standards , and tenure ( whether or not LAW DATE might apply ) would need to be clarified . ” ( page CARDINAL )

“ Residents of residential Gypsy /Traveller sites are licensees with only basic protection against harassment and illegal eviction . Many Gypsy / Travellers and their supporters argue strongly that this is not appropriate and puts NORP and other Travellers at a serious disadvantage relative to social housing tenants and especially secure council tenants . Given the changes in tenancies currently being considered , it might be worth thinking further about the status of site residents ... ” ( page CARDINAL )

NORP This report , issued by ORG Deputy Prime Minister , provided further information and conclusions of research on the provision and management of local authority gypsy sites carried out by ORG at ORG .

In the section “ Licence Agreements , Rules and Enforcement ” ( pp . CARDINAL - CARDINAL ) , it is stated inter alia :

“ ORG site pitches are let on a licence rather than a tenancy . This is in itself contentious with some NORP and other Travellers and their supporters . As licensees , site residents enjoy less security and fewer rights than council tenants . ...

The less security is argued to be justified on the grounds that local authority sites need greater flexibility in order to accommodate the nomadic lifestyle of occupiers . This envisages shorter stays , and the possibility of retaining a pitch for DATE travelling ( see ORG v. PERSON , DATE ) . ...

Opinion is mixed between case study respondents on whether site residents should continue as licensees or have some form of tenancy . Some feel that good site management requires the ability to – occasionally and in extreme situations – step in quickly and get a troublemaker off the site . This recognises that violence , crime or anti - social behaviour can have the effect of very quickly emptying a site of residents ( who are mobile and take their homes with them ) as well as potentially causing severe physical damage to the site and its facilities . The opportunity for prompt action is essential to safeguard the interests of respectable residents and staff who have to visit the site . They therefore do not want anything which gives greater security of tenure .

Other local authority respondents argue that licensee status makes NORP and other Travellers into second class citizens , and that everything possible should be done to regularise their position alongside tenants in permanent housing . They recognise that most residential sites are now stable and provide long - term accommodation rather than specifically catering for nomadism . They see the advent of introductory tenancies for social housing as a protection against bad behaviour from new residents ...

Residents occasionally express the argument often made by site managers ... against increasing security of tenure because of the need for a power to be able to get rid of bad or disruptive residents quickly in order to protect the interests of the other residents and the quality of the site as a whole .

On the other hand , lack of security means that even long - standing residents are dependent on the continued goodwill of the operator , to an extent that few of them seem to realise . The more settled people become , the more important tenure seems likely to be to them as long - term residents begin to improve and develop their plots , build sheds of their own , and so on . Some may acquire mobile homes rather than caravans which would be difficult to move and re - site . It is generally thought hard to find space on an official site DATE particularly on a good one as there are n’t many sites and a lot of them are thought to be full . It can seem unreasonable that people should still be on DATE notice if they have lived DATE in CARDINAL place , behaved well over that time and have invested in developments of their plot or home . ”

According to statistics given , evictions in fact occurred on CARDINAL out of CARDINAL sites during CARDINAL ( PERCENT ) . On CARDINAL sites there was a single eviction and on CARDINAL there were CARDINAL evictions . Reasons seem to have combined both arrears and anti - social behaviour .


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

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

The applicant was born in DATE and lives in Požega .

The applicant has served as a teacher in various elementary schools in GPE . In DATE she began her service in an elementary school in LOC . In DATE she gave birth to a son who remained living with her until DATE . As a single mother she was granted a specially protected tenancy ( stanarsko pravo ) of a flat in LOC . In DATE the applicant was transferred to an elementary school in Požega , a town in the same region . The school provided her with a flat , which it had temporarily leased from its then owner , ORG ( ORG ) .

The lease expired in DATE . In DATE the ORG took over all property of the ORG , thereby becoming the owner of the flat . The school then asked on several occasions for the lease to be extended but these requests were ignored by the competent authorities . However , since no request for her eviction was made and no other flat was provided for her by her employer , the applicant remained living in the flat and continued paying a DATE rent to the ORG .

On DATE the ORG brought a civil action against the school and the applicant in ORG ( PERSON ) , seeking the applicant ’s eviction . The ORG argued that since the applicant ’s lease had expired she had no further legal entitlement to occupy the flat .

On DATE the court granted the ORG ’s claim and ordered the applicant to vacate the flat within DATE even though , as it noted , the applicant had no other place to stay . The court did so because it was satisfied that the ORG owned the flat and the applicant had no legal entitlement to occupy it . The judgment concluded as follows :

“ The evidence presented in the proceedings lead this court to finding the plaintiff ’s claim to be well - founded .

The Government ’s Decree of DATE resulted in all possessions of the former ORG [ ORG ] coming into the ownership of GPE ...

Before the above Decree had been enacted , a contract in relation to the lease of the flat in question was concluded ... between the ORG ... and the school ... The contract was concluded to last for a limited period of time - until DATE when the school was obliged to return the flat ... The contract was concluded pursuant to section DATE of the then valid LAW ORG ... That LAW allowed the ORG to lease its property ... On the basis of the contract [ between the ORG and the school ] , the school ... entered into further contracts with the second respondent PERSON allowing her to temporarily occupy the flat and obliging her to pay rent as well as all other expenses connected with the use of the flat , while maintaining the second respondent ’s obligation to return the flat to the ORG after the expiry of the contract .

Neither the [ initial ] contract nor the additional contracts between the school and the second respondent are a basis for acquiring a specially protected tenancy of the flat in question . ... Thus , irrespective of the time [ the second respondent ] has occupied the flat and irrespective of the fact that the respondents continued to be in possession of the flat even after all contracts [ concerning the flat ] had expired , there is no legal basis for the second respondent to have acquired any rights on the flat in question ...

Although this court is aware of the respondent ’s unenviable position , it has to adopt its decisions exclusively on the basis of the laws and therefore , relying on the facts of the case , it has decided as in the operative part of this judgment . ”

The first - instance judgment was upheld by ORG PERSON u GPE ) on DATE and by ORG ( Ustavni sud PERSON ) on DATE . Both these courts endorsed the reasoning of the first - instance court that the applicant had no legal entitlement to occupy the flat .

Section CARDINAL , paragraph CARDINAL of the Act on Ownership and other Rights in PERSON ( Zakon o vlasništvu i drugim stvarnim pravima , ORG no CARDINAL/CARDINAL ) reads as follows :

“ The owner has the right to seek repossession of his or her property from the person in whose possession it is . ”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born DATE and lives in PERSON .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company A.

On DATE the applicant instituted civil proceedings against A in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( MONEY ) for the injuries sustained . In the course of the proceedings the applicant increased her claim to CARDINAL NORP tolars .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

The court held a hearing on DATE and adjourned it in order to obtain medical expert opinions .

On DATE the court appointed the Commission for the Expert Opinions at ORG ( “ the Expert Commission ” ) to draw up relevant expert opinions .

On CARDINAL DATE and DATE the applicant made requests that some experts be excluded from the proceedings . She also addressed such requests directly to ORG .

DATE and DATE the court CARDINAL times summoned the experts to produce their reports .

On DATE the court received CARDINAL expert opinions from ORG together with the case - file . CARDINAL expert opinions remained to be filed .

On DATE the applicant urged the court to immediately decide on her requests concerning the exclusion of experts .

On DATE the court issued a decision rejecting the before mentioned requests finding that they had been lodged out of time . The decision was served on the applicant on DATE and she appealed on DATE . On DATE ORG ( PERSON v PERSON ) rejected her appeal .

The remaining CARDINAL expert opinions were submitted by DATE

On DATE a hearing was held . The new hearing was scheduled for DATE .

The proceedings are still pending .


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

The applicant was born in DATE and lives in GPE .

The applicant worked as chief of the catering division of ORG company ( ORG company ) , a ORG - owned company . In DATE , by a Government decision , the catering branch of ORG became a new company , ORG . In DATE ORG merged into the ORG company , a private company . In DATE that company changed its name into ORG .

On DATE the applicant was dismissed from his job . He challenged that decision and on CARDINAL DATE FAC ordered ORG to reinstate the applicant in his previous job or in an equivalent post , and ORG to pay him MONEY ( ROL ) as overdue salary for the period DATE to DATE , and also to pay him salary until effective reinstatement . That judgment became final on DATE .

On DATE the applicant lodged an action against ORG and ORG for payment of salary until effective reinstatement and for bringing the amount of ROL CARDINAL,CARDINAL up - to - date in accordance with inflation . On DATE ORG , by a final decision , ordered ORG to pay the applicant that amount indexed to take account of inflation .

In DATE and DATE , and then in DATE , the bailiff sought to attach the company 's financial assets in several banks in respect of the salaries due . Those seizures were endorsed by the courts .

On DATE the GPE ORG declared that the judgment of CARDINAL DATE could be enforced .

On DATE TAROM lodged an objection to execution , alleging that the applicant 's right to request enforcement of that judgment had become time - barred . ORG upheld that request by a final decision of CARDINAL DATE , declaring that the applicant 's right to request enforcement of the judgment of CARDINAL DATE was time - barred .

On DATE ORG dismissed as time DATE barred an action by the applicant for payment of salaries from DATE and of other pecuniary rights related to his employee capacity . However , on DATE the decision was quashed by ORG and the case sent for fresh consideration . No information on the outcome of the proceedings is available to the ORG .

On DATE ORG dismissed an action by the applicant for payment of salary and connected rights from DATE onward , for lack of responsibility of ORG . The court considered that the applicant should have taken action against ORG . That judgment became final .

On DATE the applicant sought comminatory damages from CASROM for noncompliance with the judgment of CARDINAL DATE .

On DATE the GPE ORG set comminatory damages of ROL CARDINAL,CARDINAL per day until the applicant 's effective reinstatement . The court held that ORG had systematically refused to reinstate the applicant . That judgment became final on DATE .

On DATE the applicant requested quantification and payment of comminatory damages .

On DATE ORG upheld his request and set to ROL CARDINAL,CARDINAL,CARDINAL the amount corresponding to damage for non - compliance DATE and DATE . On DATE ORG upheld that judgment .

On DATE ORG paid that amount .

On DATE the applicant sought again quantification and payment of comminatory damages .

On DATE ORG ordered the debtor to pay ROL CARDINAL,CARDINAL,CARDINAL , of which ROL CARDINAL,CARDINAL,CARDINAL was comminatory damages for DATE and ROL CARDINAL was indexation of the damages set on DATE . On DATE ORG declared the debtor 's appeal null and void for non - payment of court fees .

On DATE ORG paid that amount .

On DATE ORG ordered ORG to pay the applicant LAW for non - pecuniary damage caused by the refusal to comply with the court orders .

On DATE ORG upheld that judgment .

On DATE COMCHIM paid the applicant ROL CARDINAL , representing the updated above - mentioned amount .

NORP However , on DATE ORG quashed the previous decisions and sent the case back to ORG .

After retrial , on DATE ORG dismissed the action on the grounds that it had been objectively impossible for the debtor to comply with the obligation to reinstate the applicant because of the reorganisation of the company .

On DATE ORG allowed an appeal by the applicant , quashed the previous judgment and ordered ORG to pay the applicant ROL CARDINAL,CARDINAL,CARDINAL for nonpecuniary damages . It considered that the “ objective impossibility ” had not been proved and that in any case it could not justify non - compliance . That judgment became final on DATE .

On DATE GPE ORG attached ORG 's financial assets in a bank . On DATE ORG upheld that interlocutory judgment .

On DATE ORG paid ROL CARDINAL,CARDINAL,CARDINAL .

On DATE ORG objected to the execution , submitting that it had already paid ROL CARDINAL,CARDINAL,CARDINAL and that the execution should have been continued only for the remaining until ROL CARDINAL,CARDINAL,CARDINAL . On DATE ORG , by a final decision , upheld the objection and annulled the execution insofar as it concerned the payment of ROL CARDINAL,CARDINAL,CARDINAL in the applicant 's favour .

According to the applicant , ORG had not claimed the difference that it had paid .

On DATE the applicant lodged an action against ORG , seeking pecuniary and non - pecuniary damages for length of the proceedings related to his dismissal . On DATE ORG dismissed his action , considering that ORG bore no responsibility for the alleged facts . That judgment became final on DATE .

On DATE ORG invoked the impossibility to reinstate the applicant in a post corresponding to his qualifications and offered him the post of night watchman , which was rejected by the latter .

On DATE ORG paid ROL CARDINAL,CARDINAL for salaries for the period DATE to DATE , as ordered by the judgment of CARDINAL DATE , as well as ORG for salaries until DATE .

On DATE ORG reinstated the applicant .

On DATE ORG paid ORG for due and updated salaries .

On DATE the bailiff also received for the applicant ROL CARDINAL from ORG , in compliance with the judgment of CARDINAL DATE , representing salaries from DATE to CARDINAL DATE indexed .

On DATE the GPE ORG allowed a request by ORG and ordered the applicant to return the amount of CARDINAL new NORP lei ( PERSON ) . The court considered that ORG had paid all the debt . The applicant appealed and the proceedings are still pending .

In DATE and then in DATE the applicant passed CARDINAL competitions for a post within ORG . Following refusal by that institution to employ him , the applicant brought court proceedings .

On DATE ORG ordered ORG to employ the applicant as from DATE and to pay him ROL CARDINAL,CARDINAL,CARDINAL for damages and ROL CARDINAL,CARDINAL for court fees . That judgment became final on DATE .

In DATE the courts declared that the judgment had become enforceable and that it could be enforced . However , the applicant was not employed allegedly because he was a collaborator of the former ORG ( ORG ) . By a decision of CARDINAL DATE ORG declared that the applicant had not been a collaborator .

On DATE the applicant sought again employment with ORG . On DATE the bailiff enjoined that institution to employ the applicant . However , ORG considered that the applicant 's right to request enforcement was time - barred .

NORP On DATE the bailiff certified in an official record the institution 's refusal to employ the applicant and considered necessary to apply a pecuniary penalty for delay in enforcement .

On DATE the applicant brought proceedings against ORG , seeking from the court to order that institution to employ him as from DATE , as ordered by the judgment of DATE , and to pay him damages .

On DATE ORG rejected his request to be employed as res judicata . It further held that his right to request enforcement of that judgment was time - barred .

On DATE ORG allowed an appeal by the applicant , quashed the previous judgment and send the case back for a fresh consideration . On DATE ORG upheld that judgment by a final decision .

The proceedings are still pending .


No violation of P4-2;No separate issue under Art. 8

On DATE the PERSON ( PERSON ) of GPE , relying on Sections CARDINAL and CARDINAL of GPE ( PERSON ) as amended on DATE , imposed a prohibition order ( verwijderingsbevel ) on the applicant to the effect that the latter would not be allowed for a period of DATE to enter a particular area , i.e. the “ LOC area , CARDINAL of the emergency areas designated by the PERSON . The following events were referred to in the PERSON ’s decision as having led to this order being issued :

– It appeared from police reports that on DATE , DATE , DATE and DATE the applicant had either overtly used hard drugs , had had utensils for the use of hard drugs in his possession or had had hard drugs in his possession in LOC and that on CARDINAL of those occasions the applicant had been ordered to leave the area for TIME .

– On DATE the applicant had been heard by the police about his conduct and he had been told that he would either have to refrain from acts which disturbed the public order ( openbare orde ) or have to stay away from the area . The applicant had further been informed that if he committed such acts again in the near future , the PERSON would be requested to impose a prohibition order for DATE on him . On that occasion the applicant did not wish to state anything as to the reasons for his presence in that area .

– On DATE the applicant had nevertheless overtly used hard drugs in the GPE area . He had once again been ordered to leave the area for TIME and the police had subsequently requested the PERSON to impose a prohibition order for DATE on the applicant .

In the opinion of the PERSON the applicant would again commit acts disturbing public order within the near future . In this respect the PERSON took account of the kind of conduct involved , i.e. acts seriously disturbing public order , the repetition and continuity of this conduct , the statement of the applicant , the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the TIME prohibition orders imposed on him and the warning given by the police . Finally , the PERSON noted that neither the applicant ’s home nor his place of work were situated in the area concerned .

On DATE the applicant submitted an objection ( bezwaarschrift ) against the prohibition order to the PERSON . He submitted , inter alia , that the PERSON had failed to take into account the fact that he was residing in LOC , that he needed to be present there in person twice a week in order to collect his social security benefits and that he received social counselling there . The applicant stated that the police knew this , but had failed to mention it in the police report on the applicant ’s hearing of DATE .

The applicant further submitted that the prohibition order could not be considered as having a legal basis in that the emergency powers granted to the PERSON under LAW were intended for emergency situations . According to the applicant , the legislature had never intended structural nuisance caused by drug abusers to be considered as creating an emergency situation . Moreover , the applicant ’s absence from LOC would not make any difference in this respect since he was CARDINAL of many drug abusers in that area . The applicant also complained that the order was contrary to LAW in that it constituted a sanction and could therefore only be imposed by a judge . He further complained that the order restricted his freedom of movement and was contrary to his right to respect for his private life , family life , home and correspondence .

On DATE a hearing took place before an advisory committee . During this hearing the representative of the PERSON stated that already on DATE a prohibition order for DATE had been imposed on the applicant and that on DATE the applicant had not wished to make any statement to the police as to the reasons for his presence in LOC . Despite the previous orders , the applicant had continued his undesirable conduct and on this ground the imposition of a new prohibition order had been sought . The PERSON ’s representative further stated that the address where the applicant had stated that he resided and where he collected his mail and social security benefits was in fact the address of ORG . It was not possible to reside at that address . This ORG had a procedure under which social - security benefits for persons subject to a prohibition order could be collected by an authorised third party and it was possible for the applicant to avail himself of that procedure .

On DATE the committee advised the PERSON to reject the objection and to maintain the prohibition order . It considered , inter alia , having regard to the fact that the applicant had , within a short period of time , regularly committed acts which had disrupted public order and that the prohibition orders for TIME which had been issued had not prevented him from behaving in that manner , that the imposition of the prohibition order had not been unreasonable . It further found that the order was in conformity with Section CARDINAL ( CARDINAL ) of LAW , that therefore it was not necessary to examine the question whether or not the conditions set out in LAW had been fulfilled , and that the PERSON had not exceeded his competence under LAW . It did not agree with the applicant that the impugned measure constituted a penalty as it had been issued in order to maintain public order . The committee finally found that the interference with the applicant ’s right to liberty of movement had been justified and that the prohibition order could not be regarded as disproportionate .

By decision of DATE the PERSON rejected the applicant ’s objection , adopting as his own the reasoning applied by the advisory committee .

The applicant lodged an appeal with ORG ( arrondissementsrechtbank ) of GPE .

By judgment of DATE , following adversarial proceedings in the course of which a hearing was held on DATE , ORG declared the applicant ’s appeal well - founded and quashed the prohibition order .

ORG accepted that the overt use of hard drugs in public places and the presence of a concentration of drug abusers and dealers disrupted public order and acknowledged the necessity to end such nuisance , in particular when this occurred continuously at specific locations in the city . ORG noted that the PERSON availed himself of CARDINAL means to that end , namely prohibition orders of either TIME or DATE . It considered the procedure established as regards the imposition of prohibition orders for a duration of DATE and noted that this procedure had not been fully complied with in that the applicant ’s prohibition order had not been sought by the competent police officer . However , as it was not established that this had harmed the applicant ’s interests , it did not find that this flaw should result in the quashing of the order . It did , however , find that the order should be quashed on other grounds .

ORG held that , unlike the situation in which an eighthour prohibition order has been imposed , Section CARDINAL ( CARDINAL ) of LAW offered no basis for the imposition of a prohibition order for a duration of DATE . It held on this point that the competence established by this provision aimed to create a possibility for direct reaction to an expected disturbance of public order and might serve to prohibit someone ’s presence for a limited period of time in the area where the disturbance of public order was expected . It held that the TIME prohibition order was such as to meet this need , but not the DATE prohibition order , the latter measure being disproportionate in relation to the expected disruption of public order and thus going beyond what could be considered necessary for maintaining public order .

ORG added that in the present case this was all the more so as the applicant had no permanent place of residence and used the address of ORG as his postal address . The prohibition order implied that the applicant ’s freedom of movement was limited for DATE in a manner which prevented him from collecting his mail and from receiving his social security benefits . It rejected the argument advanced by the PERSON ’s representative that the police would not undertake any formal action against the applicant for acting contrary to LAW the offence of failure to comply with an official order ( ambtelijk bevel ) , when collecting his social security benefits at the address of ORG , considering that the applicant ’s freedom of movement could not be made dependent on the willingness of the police officer on duty to tolerate intrinsically punishable conduct .

ORG further found that the situation at issue , i.e. nuisance caused by drug abuse , did not constitute a situation within the meaning of LAW and accordingly held that the PERSON could not have based the prohibition order on this provision . As it had already found the prohibition order to be incompatible with national law , ORG did not find it necessary to determine whether or not the order was compatible with LAW .

On DATE , the PERSON lodged an appeal against ORG judgment with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) .

NORP In its judgment of DATE , following adversarial proceedings , ORG quashed ORG judgment of DATE and rejected the applicant ’s appeal to ORG as ill - founded . Its reasoning included the following :

“ The prohibition order issued against PERSON is based on a decision of the appellant , dated DATE and addressed to ORG , which contains an instruction to the police relating to the preparation and issuing of a DATE prohibition order . This instruction designates the PERSON area as an “ emergency area ” and indicates the behaviour which the appellant considers to be constitutive of serious breaches of public order , including the overt possession or use on or near the public highway of addictive substances within the meaning of LAW .

ORG held , among other things , that the appellant was not competent to act on the basis of LAW , because a situation within the meaning of that Section was lacking . ORG does not share this opinion . Its reasons are the following .

It is laid down in LAW , first paragraph , of GPE that in case of a riotous movement , of other serious disorders or of calamities , as well as in case of a well - founded fear of the development thereof , the PERSON is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger . In doing so he may deviate from rules other than those of the LAW .

ORG notes at the outset that giving orders in the situations described in LAW is not contrary to the right to freedom of movement as guaranteed by LAW to LAW , since provision has been made for the possibility to limit this right by law – which also includes an order given by the LAW pursuant to the law – for the protection of public order .

Section CARDINAL of GPE replaced LAW which was repealed as of DATE . As did LAW , LAW grants the ORG emergency powers which should only be used in exceptional situations . Thus provision has been made by law for circumstances in which ordinary means are insufficient to restore and maintain public order . ORG notes in this connection that the wording of LAW does not lead to the conclusion that that provision , as compared with Section CARDINAL , is intended to introduce any changes as regards the circumstances in which emergency powers may be used . Its drafting history does not justify holding otherwise .

In the opinion of ORG , ordinary means may be considered insufficient in the present case and there was , at the time of the decision on the objection , an exceptional situation of the kind referred to above . ORG finds in this regard that the facts relating to the situation in the PERSON area , based on which the appellant decided to issue the DATE prohibition order , are established . In light of the decision of DATE the situation there was characterised by the presence of a large number of drug addicts and the attendant nuisance , inconvenience , insecurity and threats to other citizens . This factual situation is so serious that the personnel and means available to the appellant were insufficient to counter the disruptions of public order thereby caused .

It is important to note in this context that at the time the objection was decided on , it was not possible to solve the problem there by means of a regulation adopted by the municipality ( gemeentelijke regeling ) . At that time there was no relevant provision in any municipality bye - law , nor were any other adequate administrative - law means available . Given that the decision dismissing the objection was given before ORG delivered its decision of DATE ... , the absence of such a provision can not be held against the appellant . Apart from that , by a decision of DATE , LAW has been added to ORG law of GPE , which contains a regulation governing prohibition orders in relation to hard drugs . Against this background , ORG is of the opinion that it can not be maintained that the appellant was not entitled to use the powers granted him by LAW .

... The position taken by the appellant , that the risk of repetition of behaviour constituting a breach of the peace was so great that a DATE prohibition order was necessary , is not unreasonable .

ORG further notes that PERSON is not resident in LOC , is not dependent on that area for work , and that he was offered the possibility to collect his social - security benefits from ORG . ”

Apart from the proceedings described above , the applicant was arrested and placed in detention on DATE for failure to comply with the prohibition order of DATE . On DATE the single - judge chamber ( politierechter ) of ORG ( arrondissementsrechtbank ) suspended the applicant ’s pre - trial detention in order to allow the applicant to be admitted to ORG and adjourned the criminal proceedings against the applicant sine die .

By judgment of CARDINAL DATE , the single - judge chamber of ORG convicted the applicant of having failed to respect a prohibition order on CARDINAL occasions and sentenced him to CARDINAL months’ imprisonment with deduction of the time spent in pre - trial detention . The applicant appealed to ORG ( gerechtshof ) of GPE .

In its judgment of CARDINAL DATE , ORG quashed the judgment of CARDINAL DATE and convicted the applicant of having failed to respect a prohibition order on CARDINAL occasion . However , as the applicant had also amassed other convictions which the law required to be taken into account for sentencing purposes , ORG was prevented from imposing any sentence as the maximum aggregate penalty had already been attained . The applicant ’s subsequent appeal on points of law was rejected on DATE by ORG ( PERSON ) .

The criminal proceedings against the applicant do not form part of the case before the ORG .

Section CARDINAL of the former GPE , in force until DATE , provided as follows :

“ CARDINAL . In case of a riotous movement , gathering or other disturbance of public order or of serious calamities , as well as in case of a well - founded fear of the development thereof , the PERSON is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger .

A new GPE entered into force on DATE . Section CARDINAL of the new GPE provides as follows :

“ CARDINAL . The PERSON is responsible for maintaining public order .

ORG The PERSON is empowered to prevent or to end offences against statutory provisions relating to public order . In doing so he avails himself of the police under his authority .

In case of disruption of public order or a well - founded fear of the development thereof , the PERSON is empowered to issue orders deemed necessary for the maintenance of public order . ”

Section CARDINAL of the new Municipality Act reads :

“ CARDINAL . In case of a riotous movement , of other serious disorders or of calamities , as well as in case of a well - founded fear of the development thereof , the PERSON is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger . In doing so he may deviate from rules other than those of the LAW .

The PERSON shall not have recourse to measures of violence without having issued the necessary warning . ”

Article CARDINAL of LAW ( PERSON ) , in so far as relevant , reads :

“ CARDINAL . Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose , and any person who intentionally obstructs , hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation , shall be liable to a term of imprisonment not exceeding DATE or a secondcategory fine .

If the offender commits the indictable offence within DATE of a previous conviction for such an offence having become final , the term of imprisonment may be increased by a third . ”

In the GPE , a LOC of a town or city is appointed by ORG ) . Municipal regulations , such as general municipal bye - laws , are adopted by ORG ( Section CARDINAL of GPE ) which is elected by those inhabitants of the town or city who are eligible to vote in elections for ORG of ORG ( Article CARDINAL of the LAW ) .

By letter of CARDINAL DATE the PERSON of GPE informed ORG ( NORP ) of the GPE police that , in view of the situation in the city centre , ORG and police officers acting on the PERSON ’s behalf would be able to give orders , based on LAW , as in force at the time , to people to leave a particular area within the city centre and not to return to it for TIME .

The PERSON extended the area of the city centre where these orders could be issued by letter of DATE . Subsequently , by letter of CARDINAL DATE , the PERSON also empowered ORG and his officers to order people to leave the designated city centre area for DATE .

By letter of CARDINAL DATE the PERSON changed this instruction replacing the discretion of the police officers to issue TIME prohibition orders by a strict order to do so in specified circumstances . This letter contains the following passage :

“ In so acting I have considered that the designated city centre area exerts a continuing attraction on persons addicted to , dealers in , and addicts dealing in , hard drugs . The attending behaviour disrupts public order , causes considerable nuisance and constitutes an incessant threat to public life . In these circumstances ( in dit verband ) I judge the situation to constitute an exceptional situation within the meaning of LAW . ”

The PERSON ’s instructions were further changed by letter of CARDINAL DATE pursuant to which prohibition orders for DATE could no longer be issued by the police on behalf of the PERSON but only by the PERSON himself .

A prohibition order for DATE could be imposed on a person if in DATE CARDINAL procès - verbaux or other reports had been drawn up by the police concerning acts committed by him which had disturbed public order , such as , inter alia :

– the possession and use of addictive substances appearing in CARDINAL to LAW ( PERSON ; i.e. hard drugs ) on the public highway ;

– dealing in addictive substances appearing in CARDINAL to LAW on the public highway ;

– overt possession of knives or other banned objects in so far as this constituted a criminal offence pursuant to the general municipal bye - law or LAW ( LOC en GPE ) ;

– committing the offence of LAW where the order not complied with was a prohibition order for TIME ;

– acts of violence , thefts from cars on or along the public highway , overt selling of stolen goods on or along the public highway , in so far as there was a connection between these offences and hard drugs .

On the occasion of a fourth procès - verbal being drawn up against him , the person concerned would be heard by a police sergeant about his disruptive behaviour and the reason for his ( continued ) presence in the emergency area . The police sergeant would issue a warning to the effect that if in the near future the person concerned again disrupted public order , the police would request the PERSON to impose a prohibition order for DATE .

It is undisputed that the PERSON ’s letters aforementioned were neither published nor laid open to public inspection and that the PERSON ’s instructions were not otherwise made public .

In a decision of CARDINAL DATE , Administratiefrechtelijke Beslissingen ( ORG ) DATE , no . CARDINAL , given under former LAW and relating to a part of the old city centre of GPE where the situation was similar to that in LOC , the President of ORG held as follows :

“ As ORG has held in previous decisions , LAW – paraphrased above – confers on the PERSON emergency powers which should be used only in exceptional situations . Such exceptional situations include riotous movements , gatherings or other disturbances of public order , serious calamities , and also a serious fear of the development thereof . Thus provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order .

It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned LAW , first paragraph .

In so doing , we will consider the undisputed statement made by the respondent party at the hearing concerning the situation in the ( old ) city centre of GPE :

‘ The old city centre of GPE is known internationally and nationally as a centre for the trade in hard drugs . It continues to attract large numbers of addicts . The doings and dealings of addicts and dealers generally cause serious nuisance : overt use and dealing , intimidating group behaviour , threats to passers - by ( frequently with knives ) , shouting , raving , fights , robberies ( frequently with knives ) , thefts , receiving stolen property , etc . The old city centre has many functions ; an important one is as a residential and commercial area . However , the situation threatens all the time to become unliveable .

The extent to which matters have deteriorated for the residents yet again is apparent from the desperate protests which took place at DATE . These protests ended , for the time being , at a meeting of ORG which was attended by a crowd of people .

The NORP , PERSON , FAC and QUANTITY Hoogstraat are part of the crisis area . PERSON ( FAC , the Nieuwe and Oude Hoogstraat are the prolongation of the NORP ) constitutes the entrance to the old city centre . In this part of the town all manner of soft drugs , but especially hard drugs , are for sale , in small or large amounts : hashish , cocaine , amphetamine , ORG , heroin and other mindaltering substances . In this area especially street traders go about more than elsewhere in the city centre peddling fake hard drugs .

The presence of the dealers and large numbers of addicts with the attending criminality seriously affect the area .

Because of , amongst other things , the strong protests of local residents a special project team of the police was active in LOC for DATE from DATE . Their actions were directed in particular towards the bridge between FAC and the Oude Hoogstraat , the so - called pills bridge . This bridge was occupied by representatives of a new phenomenon , namely multiple drugs use .

The project team set itself the primary task of restoring public order . During the action there were CARDINAL ! arrests , CARDINAL of knives were seized and CARDINAL of prohibition orders were issued.’

Noting all this , we are of the provisional opinion that an emergency situation of the kind referred to in LAW , first paragraph , of GPE was rightly found to exist . The respondent was therefore entitled to issue the disputed orders . ”

Similarly , in a decision of DATE , PERSON ( Summary Proceedings Law Reports ) DATE , no . CARDINAL , the President of ORG held :

As was held in the decision of DATE ( ... ) in relation to the situation in the ( old ) city centre , the respondent rightly found that an emergency situation of the kind referred to in LAW , first paragraph , of GPE existed . ”

In a judgment of DATE , PERSON , no . CARDINAL , which related to a criminal prosecution under LAW for failure to comply with an TIME prohibition order , ORG ( PERSON ) accepted that the PERSON ’s powers under LAW of the former LAW ( for present purposes , the predecessor to Sections CARDINAL and CARDINAL of the present LAW ) were intended only for exceptional situations . It held , however , that the mere fact that DATE had passed since the PERSON had declared an emergency situation – the case related to the PERSON ’s instruction of CARDINAL DATE was not sufficient per se to justify the conclusion that an exceptional situation no longer existed . It also held , in the same judgment , that LAW did not apply to TIME prohibition orders because such orders were not given by way of penal sanction but were in the nature of a measure aimed at preserving public order . Nor did such orders violate LAW , since they were “ in accordance with law ” and “ necessary in a democratic society ” for “ the maintenance of ordre public ” . The judgment of ORG left in force a judgment of ORG sentencing the defendant in that case to CARDINAL GPE imprisonment .

Section CARDINAL of LAW ( Algemene wet bestuursrecht ) provides , in relevant part , that a person entitled to appeal to an administrative tribunal against a decision of an administrative organ ( see the following paragraph ) should first submit an objection to the administrative organ in question . The objector and any other interested party are entitled to be heard ( Section CARDINAL ) . The administrative organ can delegate the hearing to an advisory committee ( Section CARDINAL:CARDINAL ) .

A person directly affected by a decision of an administrative organ ( certain categories of decisions , not relevant to the present case , excepted ) is entitled to appeal against that decision to ORG ( Section CARDINAL:CARDINAL of LAW ) . Except in certain exceptional cases not relevant to the present case , a further appeal lay to ORG of ORG – Wet op de Raad van State ) .