CASE OF JANE SMITH v. THE UNITED KINGDOM

No violation of Art. 8;No violation of P1-1;No violation of P1-2;No violation of Art. 6-1;No violation of Art. 14

Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza

The applicant is a gypsy by birth. Since her birth she has travelled constantly, mainly in the Surrey area, with her family in search of work. After marrying her husband, A, approximately 20 years ago, this nomadic way of life continued. They have five children, born in 1975, 1977, 1982, 1989 and 1994.

The applicant and A are illiterate, as, due to their way of life, they have received little, if any, formal education. They regard travelling as detrimental to both the health of their family and to the education of their children. The applicant suffers from depression, her husband from severe gout and several of her children are asthmatic.

In pursuit of a more stable existence, the applicant and her husband applied repeatedly throughout the years for places on many of the local private and official sites in Surrey including the official sites in Runnymede. Their applications proved unsuccessful as all the sites were full with long waiting lists. Consequently, the applicant and her husband had no option but to continue travelling. They were required to move on from roadside to roadside on innumerable occasions. For a period of time they stayed at a private site but when it was redeveloped as an official site, they were forced to move on as no space was available for them. In 1984 they stayed on a relative’s site for a period of time but were forced to leave. While the Government have suggested that in fact the applicants owned this land and that it received planning permission, this was denied by the applicant. According to the applicant, the land belonged to her brother. When, following his divorce, the land was ordered to be sold by the court as part of the financial settlement, the applicant had to leave.

In March 1993, the applicant bought land known as 111A Almners Road, Runnymede. It was a portion of a garden in a Green Belt area where there was already some residential development. The applicant moved a mobile home onto the land and took up residence with her family. In a declaration dated 7 March 1996 the applicant’s uncle, Jasper Smith, a member of the Gypsy Council and an employee of Surrey County Council, stated that he had attempted on numerous occasions prior to 1993 to obtain a site on an official site on behalf of the applicant without success.

On 25 June 1993, Runnymede Borough Council (“the Council”) rejected the applicant’s application to join the waiting list for rented council accommodation on the basis that they had not lived in the borough for a minimum of three years. The applicant alleged that by this time they had lived for many years in the Runnymede area, although they had been compelled to move on frequently from place to place.

In 1988, the High Court had granted a declaration that Surrey County Council was in breach of its duty under section 6 of the Caravan Sites Act 1968 to provide provision for gypsies (R. v. Secretary of State ex parte Smith [1988] C.O.D. 3). In June 1989, the Secretary of State issued a direction under section 9 of the 1968 Act directing that 190 caravans should be accommodated. However, on 18 August 1989, the Borough of Runnymede was declared a designated area pursuant to section 12 of the Caravan Sites Act 1968. The area was designated on the basis that it was not expedient for adequate provision to be made for gypsies residing in or resorting to the borough.

The previous owner of 111A Almners Road, also a gypsy, had been refused planning permission in January 1993 to live on the land in a caravan on the basis that it conflicted with local and national planning policies. The Council considered that the stationing of a caravan would be detrimental to the character of the Green Belt. An enforcement notice had been issued requiring discontinuance of the unauthorised use. The applicant was aware of this situation and the fact that the previous owner had appealed to the Secretary of State for the Environment against the refusal of planning permission and the enforcement order. When the applicant purchased the land, she was advised that there was a special concession for granting planning permission to gypsies in Green Belt areas under Circular 28/77. Accordingly, she took over the appeal from the previous owner.

On 20 April 1993, a Public Enquiry was held. An Inspector appointed by the Department of Environment heard evidence and representations from the applicant and the Council. By a letter dated 3 June 1993, the Inspector dismissed the appeal.

“10. The mobile home is situated on an enclosed plot of land fronting Almners Road, adjacent to No. 111. This land is separated from the adjacent house by a screen fence, which continues along the rear boundary of the appeal site. The site is contained on its other side boundary by a row of conifer trees. The land has a frontage of about 19 m to the road, most of which is formed by a hedge. …

From my inspection of the site and its surroundings and from the representations made I consider that there are two main issues… Firstly, whether the use of the land as a residential caravan site for a mobile home and associated operational development is appropriate to this part of the Metropolitan Green Belt; and, if not, secondly, whether there are very special circumstances that would justify the retention of inappropriate development in the Green Belt.

On the first issue, the use of land as a residential caravan site is not one of the purposes listed as being appropriate to the green belt in Planning Policy Guidance Note 2 (PPG2). However, policy C4 of the approved Surrey Structure Plan 1989 and policy PE2 of … the Replacement Structure Plan 1992 provide that gypsy caravan sites may be appropriate and necessary in the green belt, but they will not be considered acceptable as of right.

The appeals site lies within the south west sector of the Metropolitan Green Belt. This section is described as containing valuable green wedges which thrust inwards to the Thames west of Molesey. Lyne is a small settlement located within one of these wedges. Given its location within a narrow stretch of generally open countryside between Virginia Water and Chertsey I agree with the council that the appeals site lies within a particularly sensitive part of the green belt.

From my own observations I agree … that Almners Road comprises three distinct parts and that the appeals site lies within the significant gap between Nos 99 and 131 which is predominantly rural in character despite the presence of Nos 109 and 111. The rustic feel of the locality is enhanced by the woodlands to the rear of <the applicants’> land and the field on the opposite side… Notwithstanding the previous use of the land as part of the garden of No. 111, the unauthorised use and works represent an encroachment of additional development into a predominantly rural locality. It also contributes towards the coalescence of the nearby built up frontages on Almners Road and thereby the merger of nearby settlements. As a result I consider that the development subject to the appeals conflicts with the second and third objectives of government green belt policy listed in PPG2. …

Whilst the mobile home is set behind the front of the adjoining house and its range of visibility from the other direction on Almners Road is limited by conifers on its western boundary, it, and the related operational development is significantly different to the character of the touring caravans that are parked in some of the nearby gardens, which are incidental to the enjoyment of the residential curtilages within which they stand. Notwithstanding the support of some nearby residents, I consider that the discernible presence of the unauthorised development on the appeals site is harmful to the appearance of this mainly rural location. … In light of this and its particular impact on the aims of green belt policy, I conclude … that the use of the land for a residential caravan site for a mobile home and associated operational development is not appropriate to this part of the Metropolitan Green Belt.

Turning to my second issue, Circular 28/77 states that it may be necessary to accept the establishment of gypsy caravan sites in green belt areas and that there are advantages in gypsies providing their own sites. However, in designating Runnymede under the Caravan Sites Act 1968 on the grounds of expediency the Secretary of State gave significant weight to the extent of and characteristics of the green belt within the borough and the number of sites that had already been provided within these areas. …

Circular 28/77 advises that after a district or borough has been designated, authorities may have to be prepared to increase the provision they have made if there is a subsequent expansion of the gypsy population in their area and it is nearly 4 years since the designation of Runnymede in June 1989. However since then the quarterly surveys indicate that the number of vans parked illegally in the borough has tended to decline. Consequently, having regard to the reasons given for designation, there does not appear to be a case at this time for permitting additional gypsy caravan sites, in the green belt in Runnymede, contrary to policies H12 and H09, unless there are very special circumstances.

Having regard to the personal circumstances of <the applicants> none of the family requires regular hospital treatment and I do not consider the ailments of <the applicant and her husband> and two of their children are so exceptional or debilitating as to constitute compelling reasons for allowing inappropriate development in the green belt. Whilst I sympathise with <the applicants’> aim to have the two youngest children educated, only one of these is currently at school and there is no evidence that this locality is preferable to any other in terms of access to educational facilities.

I can appreciate <the applicants’> current desire to settle in one place but there is no specific reason why this has to be in the green belt. With regard to the consequences of <the applicants> having to vacate the site you state that they would have no alternative to reverting to their previous existence of moving from one unauthorised site to another, with consequent hardship for the family and inconvenience to the general public. In this respect … the borough and district councils have no record that <the applicants> have sought a place on any of the official sites and <the applicant> stated that she has not enquired whether there was any space on any of the sites occupied by her relatives. Additionally, it would be open to <the applicants> to seek priority housing from the Council.

… I accept that <the applicant and her husband> have lived and worked in this area for some time and that it might not be possible to accommodate <their> mobile home on any authorised site within the area. However, on the basis of the evidence at the inquiry I am not convinced that all avenues relating to possible alternative accommodation have been fully explored. I am not, therefore, assured that <the applicants> inevitably would have to return to living on unauthorised sites… In any event, I am not persuaded that such a consequence … together with any limited benefits that might arise in terms of the health and education of the family represent very special circumstances that would justify the retention of this inappropriate development in this particularly sensitive part of the Metropolitan Green Belt. …”

The applicant remained on her land in the caravan as the family had not been offered a place on an official campsite and thus had no alternative legal site to place their caravan.

On 29 July 1993, the applicant applied to the Council for planning permission to build a bungalow, of which there were already some 20 on Almners Road. The Council refused planning permission. On 16 September 1993, the applicant appealed this decision by written statement as she could not afford a public enquiry.

On 29 November 1993, an Inspector appointed by the Department of the Environment dismissed the appeal on similar grounds to the earlier appeal, namely that the bungalow was inappropriate within the Green Belt and that there were no special circumstances which would override the strong presumption against such a development, which in this case would contribute to the coalescence of existing developments and further diminish the rural character of the area. As a consequence, the applicant and her husband were in breach of the enforcement notice and liable to receive a summons issued by the Council for breach of Planning Regulations.

Injunction proceedings were instituted against the applicant and her family by the Council. On 5 September 1994, the Council obtained an injunction in the High Court requiring the applicant and her family to move off their land immediately. The applicant applied for judicial review of this decision and was granted limited legal aid. However, she received counsel’s opinion which advised that the application was doomed to failure.

In light of the new Criminal Justice and Public Order Act 1994, which came into force on 3 November 1994, the applicant, in fear of being on the roadside, applied to be placed on the local authority homeless list on 4 August 1994. The Council informed the applicant’s solicitors on 4 November 1994 that the applicant had been placed on the list.

The applicant was offered accommodation in two flats in a town. However, the rent was excessively high and there was no facility to keep her husband’s van nor his tarmacadaming and landscape gardening equipment. Moreover, the environment next to a busy, treeless road was contrary to the country existence which she and her family had enjoyed all their lives. They have applied for accommodation in a more natural environment but no offer has yet been made. The Council had previously offered three alternative pieces of land which were subsequently withdrawn due to a methane gas leak, boggy ground and vicinity to a rubbish dump respectively.

The local authority has stated that, in the event that the applicant is forced to leave the site, the authority will provide temporary accommodation for her until permanent accommodation becomes available. However, in view of the restrictions on development within the Green Belt, all accommodation offered will be in urban areas.

The 1995 Annual Report from Surrey County Council planning department revealed that following the coming into force of the Criminal Justice and Public Order Act 1994 the County Council no longer had an obligation to identify new gypsy caravan sites and that unless very special circumstances were proved it was unlikely that new sites would be allowed in Green Belt and sensitive areas. The statistics for 1994 showed that the official sites in the area catered for 44 caravans while there were another 26 caravans on unauthorised sites.

The applicant stated that in May 1997 the local authority decided to institute proceedings against her. Though no proceedings were issued, the Council threatened to do so from time to time and she lived under the threat of committal for contempt. The applicant’s husband continued to suffer from severe gout and was recently in hospital for treatment. He and the applicant both suffer from depression. Her eldest son, his wife, their son and baby lived with her, as well as three other children. The applicant’s children of school age were attending the local school regularly. The applicant stated that she continued to visit gypsy sites to see whether pitches were available but she has not been offered a pitch on any site and has not received any visits from the local authority.

In the Runnymede area, there were two local authority sites accommodating 50 caravans. In addition there were 12 caravans on authorised sites and 18 caravans on unauthorised sites. The applicant submitted that since the 1989 direction by the Secretary of State only 22 additional pitches were provided. Since 1996, there had been no increase in provision in either public or private sites and no decrease in the number of unlawful encampments.

The applicant submitted that all the area of the Council was in the Metropolitan Green Belt area while the Government stated that only a large part of it was. The diagram and materials submitted from the Surrey Structure Plan 1994 indicates that 70% of the County was Green Belt, 20% urban and 10% countryside beyond the Green Belt, which includes some areas designated as areas of outstanding natural beauty (AONB) or designated landscape value (ADLV). Parts of the Green Belt area are also classed as AONB and ADLV. AONB and ADLV areas account for 40% of the County. According to the diagram, the Runnymede area consists entirely of Green Belt and urban centres.

The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).

An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).

The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State’s decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).

If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).

There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.

Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).

The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995).

“1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades …

1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development.

1.5. There are five purposes in Green Belts:

– to check the unrestricted sprawl of large built-up areas;

– to prevent neighbouring towns from merging into one another;

– to assist in safeguarding the countryside from encroachment;

– to preserve the setting and special character of historic towns; and

– to assist in urban regeneration by encouraging the recycling of derelict and other urban land. …

2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. …

3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances…

3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”

Part II of the Caravan Sites Act 1968 (“the 1968 Act”) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to gypsies as a result of planning and other legislation and social changes in the post-war years, in particular the closure of commons carried out by local authorities pursuant to section 23 of the Caravan Sites and Control of Development Act 1960. Section 16 of the 1968 Act defined “gypsies” as:

“persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such”.

Section 6 of the 1968 Act provided that it should be the duty of local authorities:

“to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area”.

The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).

Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could “designate” that district or county (section 12 of the 1968 Act).

The effect of designation was to make it an offence for any gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10).

In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of section 10.

By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act. He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, “the Cripps Report”).

Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales. He found that:

“Six-and-a-half years after the coming into operation of Part II of the 1968 Act, provision exists for only one-quarter of the estimated total number of gypsy families with no sites of their own. Three-quarters of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law: when they stop for the night they have no alternative but to break the law.”

The report made numerous recommendations for improving this situation.

Circular 28/77 was issued by the Department of the Environment on 25 March 1977. Its stated purpose was to provide local authorities with guidance on “statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management”. It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report.

Among other advice, it encouraged local authorities to enable self-help by gypsies through the adoption of a “sympathetic and flexible approach to [Gypsies’] applications for planning permission and site licences”. Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area.

Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that “it would be to everyone’s advantage if as many gypsies as possible were enabled to find their own accommodation”, and thus advised local authorities that “the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions”.

In addition, approximately £100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites.

Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above.

Section 77 of the 1994 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 three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).

In the case of R. v. Lincolnshire County Council, ex parte Atkinson (22 September 1995), Sedley J. referred to the 1994 Act as “Draconic” legislation. He commented that:

“For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given the power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant powers given them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravans Act 1968, therefore Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils… For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government to which the court was required to defer, were rarely, if ever used.

The culmination of the tensions underlying the history of non-compliance was the enactment of … the Act of 1994 …”

New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see above).

Councils were told that:

“In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.” (para. 20)

However:

“As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies ...” (para. 22).

It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13).

Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments:

“6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot 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 gypsies’ 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 Department, 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 State 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 State 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 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. 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 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court 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.

In a letter dated 25 May 1998, the Department of the Environment drew to the attention of all local planning authorities in England that Circular 1/94 required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications. The Government was concerned that this guidance had not been taken up. ACERT research (see below) had showed that 24% of local authorities (96) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision. It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and the detailed policies should be provided. Compliance with this guidance was essential in fulfilling the Government’s objective that gypsies should seek to provide their own accommodation, applying for planning permission like everyone else. It was necessary, therefore, that adequate gypsy site provision be made in development plans to facilitate this process.

The Advisory Council for the Education of Romany and Other Travellers (ACERT) which carried out research sponsored by the Department of the Environment, Transport and Regions, noted in its report that since 1994 private site provision had increased by 30 caravans per year while the pace of public site provision had declined by 100 caravans, disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision. Noting the increase of gypsies in housing and the increased enforcement powers under the 1994 Act, it questioned, if these trends continued, the extent to which the ethnic, cultural and linguistic identity of Gypsy and Traveller people would be protected.

The research looked, inter alia, at 114 refused private site applications, which showed that 97% related to land within the countryside and that 96% were refused on grounds relating to the amenity value (e.g. Green Belt, conservation area locations). Of the 50 gypsy site applicants interviewed, for most acquiring permission for their own land was an important factor in improving the quality of life, gaining independence and providing security. For many, the education of their children was another important reason for private site application. All save one had applied for permission retrospectively.

The report stated that the figures for success rates in 624 planning appeals showed that before 1992 the success rate had averaged 35% but had decreased since. Having regard however to the way in which data was recorded, the actual success rate was probably between 35% and 10% as given as the figures in 1992 and 1996 by the gypsy groups and Department of the Environment respectively. Notwithstanding the objectives of planning policy that local authorities make provision for gypsies, most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land-use criteria in the particular case. It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development. Granting of permission for private sites remained haphazard and unpredictable.

In January 2000, the Department of the Environment, Regions and Transport survey on caravans England disclosed that of 13,134 caravans counted, 6,118 were accommodated on local authority pitches, 4,500 on privately owned sites and 2,516 on unauthorised sites. Of the latter, 684 gypsy caravans were being tolerated on land owned by non-gypsies (mainly local authority land) and 299 gypsy caravans tolerated on land owned by gypsies themselves. On these figures, about 1,500 caravans were therefore on unauthorised and untolerated sites while over 80% of caravans were stationed on authorised sites.

Local authority duties to the homeless were contained in Part VII of the Housing Act 1996, which came fully into force on 20 January 1997. Where the local housing authority was satisfied that an applicant was homeless, eligible for assistance, had a priority need (e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age, physical disability etc), and did not become homeless intentionally, the authority was required, if it did not refer the application to another housing authority, to secure that accommodation was available for occupation by the applicant for a minimum period of two years. Where an applicant was homeless, eligible for assistance and not homeless intentionally, but was not a priority case, the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation.

This Convention, opened for signature on 1 February 1995, provides inter alia:

“Article 1

The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation.

Article 4

The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.

The parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority; In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.

The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.

Article 5

The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.

Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.”

The Convention entered into force on 1 February 1998. The United Kingdom signed the Convention on the date it opened for signature and ratified it on 15 January 1998. It entered into force for the United Kingdom on 1 May 1998. By 9 February 2000, it had been signed by 37 of the Council of Europe’s 41 member states and ratified by 28.

The Convention did not contain any definition of “national minority”. However the United Kingdom in its Report of July 1999 to the Advisory Committee concerned with the Convention accepted that gypsies are within the definition.

Recommendation 1203(1993) of the Parliamentary Assembly on Gypsies in Europe included the recognition that gypsies, as one of the very few non-territorial minorities in Europe, “need special protection”. In its general observations, the Assembly stated inter alia:

“6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation.

Guarantees for equal rights, equal chances, equal treatment and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.”

Its recommendations included:

“xiv. member states should alter national legislation and regulations which discriminate directly or indirectly against Gypsies; …

xviii. further programmes should be set up in the member states to improve the housing situation, education… of those Gypsies who are living in less favourable circumstances. …”

In 1998, the European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies. Its recommendations included:

“… to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of … housing and education. …

… to ensure that the questions relating to ‘travelling’ within a country, in particular, regulations concerning residence and town planning, are solved in a way which does not hinder the life of the persons concerned; …”

On 21 April 1994, the European Parliament passed a Resolution on the situation of Gypsies in the Community, calling on the governments of member states “to introduce legal, administrative and social measures to improve the social situation of Gypsies and Travelling People in Europe”; and recommending that “the Commission, the Council and the governments of Member States should do everything in their power to assist in the economic, social and political integration of Gypsies, with the objective of eliminating the deprivation and poverty in which the great majority of Europe’s Gypsy population still lives at the present time”.

Protection of minorities has become one of the preconditions for accession to the European Union. In November 1999, the European Union adopted “Guiding Principles” for improving the situation of Roma in candidate countries, based expressly on the recommendations of the Council of Europe’s Specialist Group of Roma/Gypsies and the OSCE High Commissioner on National Minorities’ recommendations.

The situation of Roma and Sinti has become a standard item on the Human Dimension section of the agenda of OSCE Review Conferences. Two structural developments – the Office of Democratic Institutions and Human Rights (ODIHR) and the appointment of a High Commissioner for National Minorities – also concerned protection of Roma and Sinti as minorities.

On 7 April 2000, the High Commissioner’s Report on the Situation of Roma and Sinti in the OSCE Area was published. Part IV of the Report dealt with the living conditions of Roma, noting that while nomadism had been central to Romani history and culture a majority of Roma were now sedentary (one estimation gave 20% as nomadic, 20% as semi-nomadic, moving seasonally, while 60% were sedentary). This was particularly true of Central and Eastern Europe, where there had been in the past policies of forced sedentarization:

“It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSCE participating States have at times breached this principle, either by making a determination of a group’s fundamental lifestyle that is inconsistent with its members’ choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity.” (pp. 98-99)

The Report stated that for those Roma who maintained a nomadic or semi-nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity. It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites, the number and size of available sites was insufficient in light of the need:

“… The effect is to place nomadic Roma in the position of breaking the law – in some countries, committing a crime – if they park in an unauthorized location, even though authorized sites may not be available.” (pp. 108-109)

The Report dealt specifically with the situation of Gypsies in the United Kingdom (pp. 109-114). It found:

“Under current law, Gypsies have three options for lawful camping: parking on public caravan sites – which the Government acknowledges to be insufficient; parking on occupied land with the consent of the occupier; and parking on property owned by the campers themselves. The British Government has issued guidance to local authorities aimed at encouraging the last approach. In practice, however, and notwithstanding official recognition of their special situation and needs, many Gypsies have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property …” (pp. 112-113).

Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans, it stated:

“… This scheme allows wide play for the exercise of discretion – and that discretion has repeatedly been exercised to the detriment of Gypsies. A 1986 report by the Department of the Environment described the prospects of applying for planning permission for a Gypsy site as ‘a daunting one laced with many opportunities for failure’. In 1991, the last years in which the success of application rates was evaluated, it was ascertained that 90 per cent of applications for planning permission by Gypsies were denied. In contrast, 80 per cent of all planning applications were granted during the same period. It is to be noted that, as a category, Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities. As such, virtually all Gypsy planning applications are highly contentious. Nonetheless, the fact remains that there is inadequate provision or availability of authorized halting sites (private or public), which the high rate of denial of planning permission only exacerbates. Moreover, there are indications that the situation has deteriorated since 1994. … In face of these difficulties , the itinerant lifestyle which has typified the Gypsies is under threat.” (pp. 113-114)

The report’s recommendations included the following:

“… in view of the extreme insecurity many Roma now experience in respect of housing, governments should endeavour to regularize the legal status of Roma who now live in circumstances of unsettled legality.” (pp. 126 and 162)


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in 1972. He lives in Šiauliai.

The applicant, a former police investigator, was suspected of abuse of office and bribery. His detention on remand was ordered by the Šiauliai City District Court on 12 March 1999 on the fear of his absconding and influencing witnesses. His remand in custody was thereafter prolonged.

On 3 October 2000 the Šiauliai Regional Court convicted the applicant of abuse of office and bribery, sentencing him to eight years’ imprisonment. On 29 June 2001 the Court of Appeal upheld the lower judgment. On 18 December 2001 the Supreme Court rejected the applicant’s cassation appeal in the case. The sentence was subsequently reduced in view of an amnesty law. The applicant was released from prison after having completed the sentence on 18 August 2003.

According to the applicant, all his letters to and from the State authorities, non-governmental organisations as well private persons - namely his family, relatives, friends and legal counsel - were opened up and read in his absence while he was in the Šiauliai remand prison during the period from 12 March 1999 until 20 July 2001. The applicant states that a total of 362 of his letters had been opened and read. The applicant has submitted a letter addressed to his lawyer by the Šiauliai remand prison administration on 18 February 2004, attesting that during the period from 15 March 1999 to 20 July 2001 the applicant had sent letters to 241 addressees, including the State authorities, NGOs, the European Court of Human Rights, and various third persons. All of these letters were listed in detail by the prison administration, with reference to their date, addressee, and their number in the applicant’s file.

Article 22 of the Constitution guarantees the right to respect for one’s private life, family life and correspondence.

According to Article 15 of the Detention on Remand Act 1996 and Rule 72 of the Remand Prisons Internal Rules 1996, which were applicable at the material time, remanded persons’ letters could be subject to censorship.

Rule 75 of the Remand Prisons Internal Rules provides that the remand centre administration cannot open letters of detainees addressed to the European Court of Human Rights if those letters were given to the administration to be sent in a closed envelope.

Rule 83 provides that the remand prison administration shall familiarise the detainee with a reply to his correspondence within three days following receipt of the letter addressed to the detainee. Therefore, all letters received by the detainees are not given to them and are kept in their files by the remand centre administration.


Remainder inadmissible;No violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was a security guard who was born in 1969 and lived in Bălţi.

The applicant, together with Messrs Nicolae Ninescu and Anatolie Tripăduş who have also lodged applications with the Court, was involved in a series of complex commercial arrangements concerning the building of eighteen blocks of flats in Chişinău by a construction company (“the company”).

On 29 March 2004 S.F. and L.B. created the above-mentioned company with a capital of 5,400 Moldovan lei (MDL). Each of the parties was the holder of 50% of the company's shares. On 17 December 2004 L.B. sold 10% of her shares to S.F. and on 11 February 2005 the remaining 40% of her shares were sold to F.M., a German national. The relevant documents were registered by the State Registration Chamber.

On 14 February 2006 Mr Nicolae Ninescu, on behalf of F.M., brought an action against S.F., seeking the exclusion of the latter from the company on the ground that S.F. had not paid his part of the shares since 29 March 2004.

On 15 March 2006 the Bălţi District Court upheld F.M.'s action and ordered the exclusion of S.F. from the company. F.M. thus became the sole shareholder. On 31 March 2006 the judgment became final and enforceable. The court issued an enforcement warrant and on the same date the State Registration Chamber registered the changes in the company's statutory documents.

On 2 April 2006 F.M. sold 10% of his shares to the applicant and 70% of his shares to V.S., who in turn sold them to three other persons, who were represented by the applicant in these transactions.

On 3 April 2006 the Bălţi Territorial Office of the State Registration Chamber added 3,024,000 euros (EUR) to the company's capital. This corresponded to the value of the project documentation for the construction site which had been estimated at EUR 3,024,358.80 in an audit report dated 9 December 2005.

Later in 2006, on an unspecified date, S.F. appealed against the judgment of 15 March 2006. He asked the Bălţi Court of Appeal to strike the case out of its list on the grounds that Mr Nicolae Ninescu did not have the powers to bring an action on behalf on F.M. The Court of Appeal examined the appeal despite the fact that the appealed decision was final, since it found that the merits of the case had been examined by the Bălţi District Court in F.S.' absence, who had not been legally summoned to that hearing. On 30 May 2006 the Bălţi Court of Appeal dismissed the appeal and rejected the request to strike the case out of its list of cases. S.F. lodged an appeal on points of law.

On 11 July 2006 the Supreme Court of Justice upheld the appeal on points of law. It quashed the judgment of the Bălţi District Court of 15 March 2006 and the Bălţi Court of Appeal's decision of 30 May 2006 and ordered that the case be remitted to the first-instance court.

On 2 August 2006 the Chişinău Court of Appeal joined F.M.'s action to a counter action filed by S.F. against F.M. and the State Registration Chamber, seeking the annulment of all documents which had led to his exclusion from the founding members of the company and for an acknowledgement of his sole ownership of the company's shares.

By a final judgment of 19 October 2006 the Supreme Court dismissed F.M.'s action and upheld in full the action lodged by S.F.

Meanwhile, on 16 May 2006, the Prosecutor General's Office ordered the opening of a criminal investigation into the alleged forgery of the power of attorney whereby the applicant had represented the above-mentioned three individuals (see paragraph 10 above). A criminal investigation was also opened in relation to the alleged smuggling of the project documentation for the construction site, since it had not been drafted in Moldova and had to be registered with the customs when introduced into Moldova. The investigation revealed that the project documentation had been brought into Moldova by the applicant on 27 February 2006. It further appeared that the applicant had declared the value of the project documentation as being MDL 19,665 whereas it had been estimated at EUR 3,024,358.80 (see paragraph 11 above).

On 26 May 2006 S.F. filed a criminal complaint with the Prosecutor General's Office about having been excluded from the founders of the company and about being illegally dispossessed of his shares.

On the same date, the Buiucani police office opened a criminal investigation against Mr Nicolae Ninescu into the alleged misappropriation of S.F.'s assets.

On 9 June 2006 an officer of the Centre for Fighting Economic Crimes and Corruption (“CFECC”) ordered the opening of a criminal investigation into the allegations made by S.F. The CFECC only relied on S.F.'s allegations that following the judgment of the Bălţi District Court of 15 March 2006 S.F. had been excluded from the founders of the company and that F.M. had subsequently sold the company's shares to third parties, including the applicant.

On 26 June 2006 both criminal investigations instituted against Mr Nicolae Ninescu were joined.

On 17 July 2006 the criminal investigation started by the Prosecutor General's office on 16 May 2006 into the acts of smuggling and forgery was joined to the criminal investigation started by the CFECC on 9 June 2006.

On 8 August 2006 all the above-mentioned criminal investigations were joined in a single criminal investigation.

On 18 December 2006 an expert report commissioned by the CFECC concluded that it could not firmly establish whether the power of attorney whereby the applicant had represented the above-mentioned three individuals (see paragraph 10 above) had properly been signed by the director of the company or whether the signature had been forged.

On 3 May 2007 an investigating judge of the Buiucani District Court granted the CFECC's application for a search warrant to search the applicant's domicile in Bălţi. The search was conducted on 4 May 2007.

On 19 June 2007, at 12.15 p.m., the applicant was arrested and placed in the remand centre of the CFECC.

On 22 June 2007, at 8.55 a.m., the prosecutor applied to the Buiucani District Court for an arrest warrant for the applicant. The application recorded that the applicant lived in Bălţi. It further noted that on 31 March 2006 F.M. had asked the State Registration Chamber urgently to enforce the judgment of 15 March 2006, i.e. as soon as it had become final and enforceable. This request had been made without notice to S.F. and, in the prosecutor's view, in order to erase all evidence of an offence. Relying on “investigative information” (măsuri operativ-investigative) that the applicant, together with F.M. and Mr Nicolae Ninescu, had executed the orders of Mr Anatolie Tripăduş against S.F., the prosecutor alleged that the applicant had committed the offence of misappropriation of another's property. The prosecutor's application did not refer to any other evidence in support of a reasonable suspicion that the applicant had committed the offence. Nor did it refer to any reasons for his detention or that he might abscond or put pressure on witnesses.

Later on the same day, at 2.40 p.m., the applicant's lawyer lodged an application for the applicant's release on the ground that the period of his detention had ended at 12.15 p.m. earlier that day.

At 4 p.m., however, an investigating judge of the Buiucani District Court ordered the applicant's remand for a period of 10 days. The judge gave the following reasons for the applicant's detention:

“[the court] takes into consideration the character and the degree of the alleged offence ... its seriousness, the necessity to protect public order, the sense of shock which may be caused to society by the applicant's release, ... the existence of a danger of absconding from law enforcement authorities, the risk of influencing the outcome of the investigation and collusion between the accused and the creation of exculpatory evidence, which result from the nature of the offence ... and the personality of the accused and his conduct during the criminal proceedings.

... the court dismisses the argument that the applicant had to be released after 72 hours ... because the delay in the opening of the hearing was due to the examination of other remand warrants and the delay in examining the prosecutor's request was due to the courts' efforts to observe the procedural rights of the defence party.

... at this stage, the court considers that the relevance of the prosecution's reasoning has priority and will contribute to the normal conduct of the criminal proceedings.

The court orders the prosecutor to ensure ... the applicant's proper medical care.”

The applicant appealed on 25 June 2007. The applicant did not, however, complain in his written submissions about the delay in releasing him on 22 June 2007.

On 26 June 2007 the police informed the CFECC that the applicant had not been living at his given address in Bălţi for four years.

On 28 June 2007, at 9.30 a.m., the applicant was officially indicted on charges of misappropriation of another's property and forgery. The indictment stated that S.F.'s 60% shares in the company were worth MDL 20,165,034 (EUR 1,327,083) on 1 January 2006.

On the same day, at 10 a.m., the Chişinău Court of Appeal examined the appeal against the decision of 22 June 2007 and dismissed the applicant's appeal. It did not consider the applicant's arguments about the lack of a reasonable suspicion against him or deal with other submissions in favour of release. However, the court endorsed the reasons given by the investigating judge of the Buiucani District Court for remanding the applicant in custody and stated that he could abscond through the uncontrolled territory of Transdniestria.

Still on 28 June 2007, at 10.40 a.m., the prosecutor applied to the Buiucani District Court for an extension of the applicant's detention for another 30 days. The grounds for the extension were similar to those relied upon in the initial application for a remand warrant. It further stated that the identity of all the persons who could have been aware of the offence were unknown. An investigating judge of the Buiucani District Court ordered the extension of the applicant's detention for another 20 days for the reasons given by the prosecution later on that day. Relying on Article 186 § 3 of the Code of Criminal Procedure (“the CCP”) the judge further stated that in exceptional circumstances, depending on the complexity of the case, the severity of the offence and the risk of the applicant's absconding, the detention could be prolonged. He further noted that the criminal investigation was still ongoing and that several other measures had to be taken in order to complete it. The judge however did not consider any of the arguments put forward by one of the applicant's lawyers that the applicant's wife was eight months' pregnant, that he would not abscond and that he did not intend to influence witnesses. The applicant appealed.

On 10 July 2007 the Chişinău Court of Appeal rejected the appeal lodged against the decision of 28 June 2007 and found that the investigating judge of the Buiucani District Court had observed the correct procedure. It did not adduce any new reasons for the applicant's detention.

On 12 July 2007 the applicant's lawyer made a fresh habeas corpus application, submitting that there was no reason for the applicant's further detention on remand. He stated that there was no risk of collusion between the accused or of influencing witnesses, since the criminal proceedings had been instituted on 9 June 2006 and during that period the prosecution had done enough to obtain evidence.

On 16 July 2007 the prosecutor filed a new application with the Buiucani District Court for the prolongation of the applicant's detention for an additional 30 days. The prosecutor also relied on the risk that the applicant would forge identity papers and documents in order to hinder the investigation and that the identity of all the persons who could have been aware of the offence was unknown.

On 18 July 2007 an investigating judge of the Buiucani District Court upheld the prosecutor's request and relying on Article 186 § 3 of the CCP prolonged the applicant's detention for 20 days. The investigating judge endorsed the reasons given by the prosecutor in favour of the applicant's further detention. As to the habeas corpus application, the investigating judge found that the reasons put forward by the prosecution for extending the applicant's detention outweighed the reasons put forward by the defence. Again, the applicant's lawyer's argument that his wife was pregnant and that therefore he was unlikely to abscond was ignored. Similarly, the investigating judge did not heed the argument that the applicant was willing to give up his passport as an assurance that he would not leave the country. The applicant appealed.

On 25 July 2007 the Chişinău Court of Appeal dismissed the appeal without adducing any new reasons. It noted however that the identity of the persons who could have been aware of the offence were unknown.

On 7 August 2007 an investigating judge of the Buiucani District Court upheld a new request of the prosecution for a prolongation of the applicant's detention and ordered a further 20 days' detention. In particular, the investigating judge dismissed the argument that the applicant's wife was pregnant on the ground that she was on maternity leave and that there was no evidence that she required any assistance or medical treatment. The applicant appealed, invoking again his wife's poor health. On 9 August 2007 the Chişinău Court of Appeal dismissed the appeal. Neither the prosecution nor the courts adduced new reasons for the applicant's further detention.

On 17 August 2007 the investigation ended and the criminal file was referred to the Buiucani District Court.

On 22 August 2007 the prosecutor applied for a further extension of the applicant's detention for 90 days on the ground that the applicant would hinder the proceedings before the court and would commit other offences.

On 28 August 2007, at 4 p.m., the Buiucani District Court upheld the prosecutor's request in full without relying on any new reasons for the applicant's further detention. It did not examine the applicant's contention that the prosecutor had failed to submit any evidence to substantiate his request.

The applicant appealed and argued that the decision had been issued at 4 p.m., after the expiry of the previous remand warrant at 12.15 p.m. Relying on Boicenco v. Moldova (no. 41088/05), Şarban v. Moldova (no. 3456/05) and Becciev v. Moldova (no. 9190/03) he argued that the domestic courts had failed to provide relevant and sufficient reasons for his detention.

On 30 August 2007 the applicant's lawyer was given the annex with the prosecution's list of evidence. It included, inter alia, addresses of witnesses, copies of documents related to the company and the construction site, verbatim records of the examination of compact discs with recordings of telephone conversations of A.T. with other co-accused and minutes of searches.

On 10 September 2007 the Chişinău Court of Appeal dismissed the appeal. Besides the reasons outlined in the prosecutor's request, the court stated that although a search had been conducted of the applicant's domicile, there was no proof that he had been permanently residing there. The applicant's application for release was considered as an attempt to influence the investigation. As to the applicant's detention after 12.15 p.m. on 28 August 2007, the court found that he had been lawfully detained, since the hearing had been opened at 10 a.m. that day. Finally, the court stated:

“Moreover, [the applicant's] intention to undermine the normal conduct of the proceedings ... is highlighted by the fact that constant reference is made to cases examined by the European Court of Human Rights, and which are not related to the present case. Those cases are totally different from the present case and therefore the declarations are designed to indirectly influence the courts to release the applicant.”

On 17 September 2007 the applicant's lawyer made a fresh habeas corpus request, submitting that there was no reason for his further detention on remand. On the same date the Buiucani District Court dismissed it without providing any relevant reasons.

On the same day, the Buiucani District Court ordered an official medical examination of the state of health of Mr Anatolie Tripăduş, who was one of the applicant's co-accused in the criminal proceedings. The court also suspended the criminal proceedings pending the medical examination and the delivery of a report.

On 23 November 2007, without resuming the suspended proceedings, the Buiucani District Court upheld a fresh request of the prosecution for a prolongation of the applicant's detention and ordered a further 30 days' detention. It also dismissed a new habeas corpus request made by the applicant. On 4 December 2007 the Chişinău Court of Appeal dismissed the appeal. Neither the prosecutor nor the courts adduced new reasons for the applicant's further detention.

On 14 December 2007 the Buiucani District Court resumed the criminal proceedings which had been suspended on 17 September 2007 and the prosecutor requested a further prolongation of detention for 90 days.

On 20 December 2007, the Buiucani District Court ordered the extension of the applicant's detention for 60 days. The applicant appealed.

On 29 December 2007, the Chişinău Court of Appeal quashed the extension order. In particular, the Court of Appeal stated that the applicant had his permanent residence in Chişinău, that there was no risk that he would abscond or that he would undermine the conduct of the criminal proceedings by influencing witnesses. However, the Court of Appeal prohibited the applicant from leaving the city for 60 days.

On 6 March 2008 the Buiucani District Court granted the prosecutor's request that one of applicant's co-accused be examined by a doctor. Accordingly, the criminal proceedings were suspended.

The relevant domestic law has been set out in Şarban v. Moldova (no. 3456/05, §§ 51-56, 4 October 2005) and Muşuc v. Moldova (no. 42440/06, § 22, 6 November 2007).

In addition, the relevant provisions of the Code of Criminal Procedure ('the CPP') read as follows:

“(1) A person may be arrested and taken into police custody for a short period of time not exceeding 72 hours and under the conditions established by law.

(2) The following persons may be arrested and taken into police custody:

a) persons suspected of having committed a criminal offence punishable by a sentence of imprisonment of over 1 year...”

“(1) The criminal investigation body shall be entitled to arrest and take into custody a person suspected of having committed a crime for which the law prescribes a punishment of deprivation of liberty of over a year, only in the following cases:

1) when he or she has been caught in the act;

2) if the eye witness, including the injured party, indicates that the person has committed the crime;

3) if obvious traces of the crime are discovered on his body or clothes, or in his home or vehicle;

(2) If a person is suspected of having committed a crime in other circumstances, the person can be arrested and taken into custody only if he or she tried to abscond; or if he or she does not have a permanent residence; or if his or her identity could not be established.

(5) The arrest and detention in police custody of a person in accordance with the present article shall not exceed 72 hours from the moment of his deprivation of liberty.

(7) A person who has been detained under this article shall be brought promptly, and before the expiry of the 72-hour period, before the investigating judge, who will decide whether he or she should be remanded in custody or, if appropriate, whether he or she should be released. The application for pre-trial detention of such a person must be lodged by the prosecution at least three hours before the expiry of the 72-hour detention period.”

“(1) A person who has been arrested and detained in police custody shall be released in the following circumstances:

1) the suspicion that the person has committed a crime is not confirmed;

2) there are no grounds for his or her continued deprivation of liberty;

3) the criminal investigation body establishes that the person was arrested and detained in police custody in flagrant breach of the law;

4) the 72-hour detention period has expired;

5) the 72-hour detention period has expired and the court has not authorised the person's arrest...”

(3) Any criminal investigation action shall not be allowed after the suspension of the criminal investigation.”

(2) The application for pre-trial detention or house arrest shall be examined without delay by the investigating judge in a closed hearing with the participation of the representative of the criminal prosecution, counsel for the defence and the suspect. In presenting his application in court, the representative of the criminal prosecution shall ensure the participation of the suspect at the court hearing; he shall notify counsel for the defence and the suspect's legal representative of the hearing. If defence counsel so notified does not appear at the hearing, the investigating judge shall ensure that an ex officio counsel is appointed to defend the interests of the suspect...”

“(1) The court shall suspend the proceedings if an accused suffers a serious illness which prevents his participation at the hearing. The court shall issue a decision to suspend or to resume the proceedings.

(2) If there are several co-accused and one of them is seriously ill, the court shall suspend the proceedings only in respect of the latter, but will continue the proceedings in respect of the others. The lawyer of the accused, in respect of whom the proceedings have been suspended, shall attend with his clients the proceedings in respect of the other co-accused, if the offence had been committed by participation.”


The applicant is an Italian national, born in 1951 and currently residing in Chiavari (Genoa).

In 1978 the applicant married Mrs G. Two children, X and Y, were born in wedlock in 1983 and 1988.

In December 1993 the applicant left the marital house and started living with a certain Mrs M. The applicant alleges that, since then, he made substantial efforts to maintain regular contacts with X and Y. However, he had to face “the aggressive behaviour of his wife”, who allegedly tried to “destroy [his] reputation and his relationship with his own children.”

The first claim before the Genoa Youth Court

On 18 March 1994 the applicant requested the Genoa Youth Court (“tribunale dei minorenni”) to grant him the care and custody over his children. He observed that from 31 December 1993 he was de facto separated from his wife and that the latter had a negative influence on X and Y.

In an order of 19 April 1994, the Genoa Youth Court provisionally granted Mrs G. the custody of the children. The court also decided that the applicant should have access to X and Y one day per week and one week-end every fortnight.

The judicial separation proceedings and the proceedings before the Genoa Youth Court

On 30 May 1994 Mrs G. filed a claim for judicial separation with the Genoa District Court.

In an order of 3 February 1995, the President of the District Court confirmed the committal to Mrs G. of the children's care and custody and the applicant's right of access. He ordered, however, that X and Y should not stay overnight at the applicant's place when Mrs M. was present.

On 26 May 1995 the applicant and Mrs M. had a daughter, Z.

On 13 June 1995 the Genoa investigating judge appointed an expert, the psychologist and psychotherapist L., and charged him to analyse the relationship between X, Y and their parents and the behaviour of the applicant and Mrs G. with regard to their children.

On 14 September 1995 L. informed the investigating judge that the applicant had refused to consign Y to his mother's care. In an order of 19 September 1995, the investigating judge decided to suspend the applicant's access to X and Y. This decision was adopted pursuant Article 333 of the Civil Code, according to which where the conduct of the parents is detrimental to the child, the judicial authorities may take any decision that is appropriate. Such decisions may be revoked at any stage of the proceedings.

On 30 September 1995 a bailiff tried to apprehend Y at the applicant's place. However, notwithstanding the assistance of two carabinieri, this attempt failed since the child refused to join his mother.

On 2 October 1995 the applicant presented to the investigating judge a report prepared by an expert of his own choosing. The report indicated that Y had shown a spontaneous desire to live with his father and that frustrating his will would have been detrimental for the child's psychological stability.

On 3 October 1995 L. filed his final report with the District Court's registry. On the basis of the interviews he had had with the applicant, X, Y, Mrs G. and Mrs M., L. concluded that the applicant and Mrs M. were trying to use Y in order to sustain their animosity against Mrs G., who, on the other hand, had shown greater maturity and educational capacity.

In an order issued on 6 October 1995, the Genoa investigating judge confirmed the suspension of the applicant's access to X and Y and ordered the case-file to be forwarded to the Genoa Youth Court.

On 13 October 1995 the investigating judge ordered that Y be consigned to his mother's care, if need be, with the police's assistance.

On 23 October 1995 the applicant appealed against this order. In a decision of 31 October 1995, filed with the registry on 2 November 1995, the Genoa District Court declared the applicant's claim inadmissible, no appeal being available against an execution order.

On 3 November 1995 Mrs G., assisted by a bailiff and by the carabinieri, tried to apprehend Y at his primary school. This attempt failed as a consequence of the child's refusal to join his mother and of the intervention of the applicant and Mrs M. With regard to this episode, the applicant alleged that the carabinieri physically injured Y, who was moreover psychologically humiliated before his schoolmates. However, none of these circumstances is mentioned in the bailiff's written record.

In an order of 1 February 1996, the Genoa Youth Court declared that Mrs M. should abstain from bringing Z in the neighbourhood of Y's primary school. It observed that according to the information at its disposal, Z, who was at that time about eight months old, had been waiting for prolonged periods in a car parked outside the school. Such a situation, which had occurred even on cold winter days, could be regarded as being detrimental to the interests of the little girl. This order was eventually revoked on 9 June 1997. According to the applicant, the Youth Court moreover threatened him and Mrs M. of limiting their parental authority over Z.

In an order of 22 April 1996, filed with the registry on 29 April 1996, the Genoa Youth Court, acting in accordance with Article 333 of the Civil Code and observing that the applicant had refused to consign Y to his mother's care and to attend the meetings scheduled by the Genoa social services, ordered that the applicant's parental authority be suspended, that the care over Y be provisionally committed to the Genoa City Council and that the child be transferred to a public care institution. In execution of his order, on 29 April 1996 Y was apprehended by three policemen in front of his primary school and placed in the public care institution K., which was allegedly kept secret to the applicant. On 2 May 1996 the President of the Genoa Youth Court gave the applicant a letter from Y, which had been partly censored by the authorities in order to prevent the reader from finding out the place where it had been written.

On 9 May 1996 the applicant lodged an appeal against the order of 22 April 1996. In an order of 6 June 1996, filed with the registry on 19 July 1996, the Genoa Youth Appeal Court confirmed the suspension of the applicant's parental authority. It annulled the remainder of the impugned decision, observing that pending the separation proceedings the Youth Court was not competent to decide issues other than those related to the above mentioned suspension.

In the meanwhile, in a decision of 7 May 1996, the Genoa Youth Court had ordered that Y be committed to his mother, his continuos stay in a public care institution being detrimental for him. On 15 May 1996 Y started living with his mother's family.

In a judgment of 7 May 1996, filed with the registry on 20 June 1996, the Genoa District Court declared that the applicant was responsible for the spouses' separation and fixed at 3,000,000 lire the monthly sum that he should pay to Mrs G. The District Court also granted Mrs G. custody of the children, confirmed the suspension of the applicant's access and charged the Genoa Youth Court to supervise a gradual and possible renewal of the contacts between X, Y and their father.

On 31 July 1996 the applicant appealed against this judgment. On 10 October 1996 the President of the Genoa Court of Appeal fixed the date of the hearing at 6 December 1996. On that occasion the applicant declared that he did not intend to pursue his claim. In an order of the same day, filed with the registry on 9 January 1997, the Genoa Court of Appeal declared the applicant's appeal inadmissible. As a consequence, the judgment of 7 May 1996 became final. The applicant indicated that the decision to withdraw his appeal was due to the little confidence he had in the Genoa magistrates.

In the meanwhile, in an order of 7 October 1996, the Genoa Youth Court had granted the applicant access to Y once a week. All the meetings took place in a public care institute where an educator (“educatore”) was always present.

The applicant alleged that, notwithstanding the Youth Court's decision, on 16 July 1997 an educator named F. decided to suspend the meetings at issue. From that date, the applicant had no further contacts with Y. In a note of 22 October 1997, F. informed the Genoa Public Prosecutor's Office that the social services had tried on several occasions to get in touch with the applicant - who could not be found - and had eventually recorded a message on his answering machine, without any result.

On 4 June 1997 the applicant requested the Genoa District Court to reduce the amount of the monthly sum due to Mrs G. and to grant him custody over Y and access to his children. In an order of 16 July 1997, filed with the registry on 23 July 1997, the Genoa District Court, observing that the applicant was not represented by a lawyer as prescribed by Italian law, declared this claim inadmissible.

According to the applicant, the Genoa Youth Court and its attached Public Prosecutor's Office refused to take into consideration a number of claims he had personally introduced seeking the annulment of the suspension of his parental authority and the adoption of a number urgent measures in the interests of his children.

The divorce proceedings

On 30 April 1998 the applicant introduced a claim for divorce before the Genoa District Court. The date of the hearing was fixed at 13 November 1998. The proceedings were subsequently adjourned to 7 January 1999, on which date the President of the District Court placed himself at the disposal of the parties with a view of securing a friendly settlement of the matter. Considering that there was no basis for such a settlement, the President adjourned the case until 8 June 1999.

The other claims introduced by the applicant

In 1996 and 1997, the applicant had introduced a number of claims, requesting that criminal proceedings be instituted against L., the magistrates of the Genoa Youth Court, a lawyer of his own choosing, Mrs G's father and the educator F. None of these claims had any substantial result. In particular, on 3 June 1998 the Genoa investigating judge decided not to commence proceedings against F. on the basis of the applicant's allegations.