Since launching its intent to bring a case to the European Court of Human Rights in Strasbourg contesting the Valencian ‘Land Grab’ Law,(LRAU), in November 2005, solicitors Irwin Mitchell have yielded over seventy enquiries from potential claimants.
The surprisingly small number of claimants against a law that has potentially affected thousands, is mostly due to the requirement of aggrieved land owners having to try to effect compensation through the Spanish courts before being eligible to bring their action under the ECHR, (European Human Rights Convention)
The fact that no action against the law, has been successful, (to our knowledge, to date), combined with the need for any action for remedy in a property dispute to have been brought before the Spanish courts within six-months of the loss to the land owner, calls into question whether the vast majority of people who have suffered financial loss due to the LRAU will ever see compensation.
The case is expected to receive a hearing date sometime in the next two years.
History of the LRAU, (Ley Reguladora de la Urbanistica)
The LRAU was introduced by the Valencian Comunidad authorities in 1994 to facilitate the development of rural areas of the region into urban communities.
Its impact was soon felt by property owners in rural areas of the Costa Blanca, Costa Calida and Costa Azahar who found themselves in the position of having their land ‘confiscated’ in the ‘public interest’ and many also being billed for large amounts of money to pay for the cost of developing new infrastructure.
It soon became clear that the expropriation of land from existing owners and the charging of infrastructure expenses to the same owners was being openly abused by private developers who were openly seen as acting as agents to the public authorities.
The problems within the law lay in several areas, but not least in the lack of definition of ‘public interest’. It is this justification for the expropriation of private land that has been used to circumvent any successful remedy in the Spanish Courts and allowed developers to benefit for ‘private interest’.
Other areas of concern were finally highlighted by the European Parliament in December 2005. These included the bases on which the ‘Ubanistor’ or developer was selected; the lack of adequate procedures for the awarding of the public contract and the need for adequate procedures for the notification of land owners so that they were notified individually, effectively and in good time of any development proposals that may affect them, thus giving them adequate time to consider appropriate action.
In February 2006 the Valencian authorities replaced the LRAU with a new law governing the development of rural land. The LUV, (Ley Ubanistica Valencia). The new law whilst addressing some of the issues still fails to deal with many of the concerns highlighted by the European Parliament the previous December.
The case has now been taken up by the UK firm of solicitors Irwin Mitchell and three Monckton Chambers barristers, Piers Gardner, Ian Rogers and Ben Rayment.
The case, to be taken to The European Court of Human Rights in Strasbourg will be based on Article 1 of Protocol 1 of the European Convention on Human Rights, (ECHR), which guarantees the right to property.
The case which would normally be too expensive for private individuals to bring to the court has been made possible by provision by the solicitors of a Conditional Fee Agreement, (CFA), which limits the cost liability to the individual claimants allowing aggrieved parties to partake in the action without fear of enormous costs.
Potential claimants can contact Irwin Mitchell on 00 44 0870 1500 100
By: Neil Ebsworth
Speeding in Scotland (the Law Today)
Speeding in Scotland is often signalled by the fhe flash of the camera is often the first indication that criminal proceedings are to be contemplated by the Procurator Fiscal (Similar to the CPP). That is probably when the worry sets in.
There is, however, no need to worry if no formal notice, termed a Notice of Intended Prosecution is received within 14 days. (Exceptions being where it is a company car or a hire car)
In the event that the Procurator Fiscal s office seek to simply initiate proceedings in the absence of any NIP (Notice of Intended Prosecution) then objection should be taken at the first calling of the case. A lawyer would be able to advice you on how to take a proper objection but you must explain to the lawyer when the incident occurred and that you did not receive the NIP. If you didnt spot the flash, then you will be none the wiser.
The NIP can be issued verbally by Police Officers if you have the misfortune of being stopped by the Police at the time. In cases were injury or damage to property has occurred then the requirement does not apply.
Make no comment when questioned by police, beyond formal details, for example name and address. In road traffic cases, the accused person, if required under Section 172 of the Road Traffic Act 1988, is obliged to give information within his knowledge about the identity of a driver of the vehicle involved in any such incidents. Remember that it now well established that if you are the registered keeper then you are obliged to inform the police about who was driving even if this means you incriminate yourself. You DO NOT have a right of silence. Contravention of s172 carries a higher penalty than a simple speeding charge where the points start at 3 and go to 6. In relation to s172 you receive a 6penalty point endorsement.
Failure to provide such information constitutes a separate offence. Many people are aware of the recent case dealt with at the European Court of Human Rights regarding the right of silence debate in this area but as yet it a judgement has not been issued to guide the judiciary in this country.
After the matter has been reported to the Procurator Fiscal then proceedings are likely to be initiated by way of Summary complaint. The validity of a complaint depends upon a number of factors. Typographical errors can generally be disregarded, however more fundamental errors can bring the case to an end before it has even got off the ground. A fundamental nullity can not be amended and will vitiate proceedings. Complex issues such as jurisdiction, time bar and competency all require to be investigated.
Road traffic cases are subject to strict time limits and, in some cases, even if proceedings are initiated within the requisite time period, the complaint can still be challenged on the basis of “undue delay” which can be as little as a matter of days. It must be stressed these preliminary matters require to be stated at the first calling of the case and we would therefore advise that legal advice is sought at the earliest opportunity.
The dramatic rise in the speeding prosecutions and the increasing number of cameras and traps peppered around the country are blatantly apparent to every motorist. It is however, important to realise that these prosecutions are open to challenge from a number of angles.
Mistakes can be made at the most basic level: In one of our recent cases, it became apparent the distance allegedly travelled had been underestimated by approximately one third, thus producing an enhanced speed measurement. The Crown deserted the case on the basis of the evidence presented by us in discussion with them. No need for the expense of a trial!
More complex issues can arise in terms of certification and calibration of speed measurement devices. For example, a number of modern devices operate with reference to the measured half mile it is from that distance the device is calibrated and performs its functions. The Crown require to prove the measured half mile has been measured and is indeed a half mile. Failure to prove this essential fact is fatal to the prosecution case.
There are, of course, numerous other charges that can be brought under road traffic legislation ranging from dangerous driving and drink driving to minor construction and use infringements.
The key to defending road traffic cases is to explore all possible avenues of investigation. The complex nature of statutory road traffic charges makes it imperative to have a full and comprehensive understanding of the law.
If all seems to be lost, then other factors can come into place. The legislation permits further opportunities for a motorist, after conviction, to retain his licence. If what the court terms as “Special Reasons” apply to the circumstances of the offence, the Court can refrain from disqualification or endorsement. Furthermore if the Court finds that “Exceptional Hardship” would ensue if the motorist were to loose his licence then, again, the Court will refrain from disqualifying.
It must be stressed that these are complex areas of the law and legal advice should be sought at the earliest juncture.
By: Graham Walker
Human Rights in Australia
The discussion on human rights isn’t a new concept, ever since man could conceptualize about his world there has been dialogue on the subject, even one of the Pharaohs of ancient Egypt speaks of the topic when he addresses his Viziers “When a petitioner arrives from upper or lower Egypt – make sure that all is done according to the law, that custom is observed and the right of each man respected.” (Pandey, 1999, p. 19) But it wasn’t till after the Second World War that the discussion on human rights began to come into popular consciousness. Since the 19th century there has been a wider phenomenon where people all over the world are feeling a greater concern for their fellow man, it all started with the abolition of slavery in the United States in 1863, followed by Brazil in 1880 and before that the English colonies in 1807. But twenty years before Britain made this law, Captain Arthur Phillip in 1787, while waiting for the first fleet of Australia to set sail for its voyage was quoted as saying, “There can be no slavery in a free land and consequently no slaves.” (Robertson, 2009, p.51) This could very well be our first law, and still at a time where America’s fore fathers were still whipping and using slaves. Australia’s history with human rights is an important one, more important then I believe Australians even know, so important in fact that Australia’s first introduction to the world stage was our proposals to the Universal Declaration, because the Australian Herbert Evatt was the president of the United Nations assembly, helped draft the Universal Declaration, and was the first to suggest at the Paris Peace Convention in 1946 a European Court Of Human Rights, which is now the most influential court in the world. So how did we go from being a pioneer in human rights, to now being the only country in the Western World to not have a bill of human rights? I believe we need a bill of human rights because it would give the minorities a legislative voice, it would strengthen the unity of the Australian people and would give a more democratic voice to the judiciary, even though some prominent leaders in Australia believe it will do the opposite of that. [Read more...]