Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31600/96

by Caroline Margaret BURTON

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÃŽRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 May 1996 by

Caroline Margaret BURTON against the United Kingdom and registered on

28 May 1996 under file No. 31600/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1966 and resident in

Carmarthen, Wales. She is represented before the Commission by

Jean Gould, a solicitor at the Public Law Project in London. The facts

as submitted by the applicant may be summarised as follows.

The applicant is a Romany gypsy by birth and was brought up until

1975 in the traditional gypsy lifestyle. In 1975 her parents accepted

an offer of rented accommodation from Ceredigion District Council in

what is now the County of Carmarthenshire in Wales. The applicant's

parents took the decision to move into settled accommodation having

suffered repeated evictions from sites where they had stationed their

caravan and in the absence of any provision of permanent caravan sites

by the local authority. In 1982 the family moved to rented

accommodation owned by Carmarthen District Council, now subsumed within

the unitary Carmarthenshire County Council, where they still live.

Since 1988, the applicant's father has been seeking alternative

accommodation from the local authority, the family having suffered

racial attacks, including anti-gypsy graffiti on their property.

In 1989 the applicant was diagnosed as suffering from a cancerous

tumour of her liver. Notwithstanding major surgery, the tumour

recurred in 1992 and 1994 when it was found to have spread to her

pancreas and to be incurable. The applicant's knowledge that she is

going to die in the near future has intensified her desire to live out

her last days and die in a caravan, according to her Romany gypsy

traditions.

The applicant's father has tried to find secure accommodation for

their family's travelling caravan that is presently locked up in a

caravan pound in a nearby village but in which they may not live. The

Council has attempted but has been unable to provide a location on

which the applicant's family can station their caravan. A request to

live in a mobile home owned by the council in an area known as

"Whitemill" was refused, the Council considering the mobile home

unsuitable for habitation. Minutes of a Special Meeting of the Housing

Services Committee of 4 January 1996 recorded that two tenancies in an

outlying area had been offered to the applicant's family in light of

their expressed wish to live in a rural area.

COMPLAINTS

The applicant complains that the Council is causing her anguish

by preventing her from living out her last days in the traditional

manner of a gypsy. She claims that this leads her to feel inferior and

that the treatment is therefore debasing, humiliating and an

interference with her dignity such as to constitute inhuman and

degrading treatment within the meaning of Article 3 of the Convention.

The applicant complains under Article 8 of the Convention that

because of the combined effect of legislation (principally the Criminal

Justice and Public Order Act 1994) and Government planning policy

(principally Welsh Office circular 2/94), the applicant is unable to

pursue her traditional way of life in the family home (the caravan)

that belongs to her family, without the family being in breach of the

law. She claims that this is a disproportionate interference in her

traditional way of life.

The applicant further claims that the violation of her rights

under Articles 3 and 8 was discriminatory contrary to Article 14 of the

Convention.

The applicant finally complains under Article 13 that there is

no mechanism under English or Welsh Law by which she can have her claim

that she has been denied her right to end her days in accordance with

the tradition of the minority to which she belongs determined.

THE LAW

1. The applicant complains that the failure of Carmarthenshire

County Council to find the applicant accommodation for her family's

caravan or to enable her to live out her last days in a caravan in

accordance with Romany gypsy tradition, constitutes inhuman and

degrading treatment within the meaning of Article 3 (Art. ) of the

Convention. Article 3 (Art. 3) provides as follows.

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The case-law of the Convention organs establishes that ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3). The assessment of that minimum

is relative and depends on all the circumstances of the case, such as

the duration of the treatment and its physical or mental effects (see

e.g. Eur. Court H.R., Ireland v. The United Kingdom, judgment of

18 January 1978, Series A no. 25, p. 65, para. 162).

The Commission considers that the applicant's complaints do not

disclose treatment that falls within the scope of Article 3 (Art. 3).

Whereas it is not excluded that a failure to take steps by a public

authority may engage responsibility under this provision, the

Commission finds that the local authority cannot be said in the

circumstances of this case to have subjected the applicant to ill-

treatment contrary to Article 3 (Art. 3) of the Convention.

It follows that this part of the complaint must be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant invokes Article 8 (Art. 8) of the Convention, in

respect of her wish to live her final days in a caravan, as part of an

intrinsic and important part of the traditional lifestyle of a Romany

gypsy. Article 8 (Art. 8) provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime,

for the protection of health or morals, or for the

protection of the rights and freedoms of others."

The Commission observes that the applicant has been living with

her parents in settled accommodation provided by the Council since

1975. No interference in the applicant's present living arrangements

has been alleged or has occurred. In these circumstances the

Commission does not consider there to have been any interference within

the meaning of Article 8 (Art. 8) of the Convention.

Insofar as the applicant complains that she has not been able to

return to living in a caravan due to a failure of the local authority

to provide a site or an alternative mobile home, the Commission recalls

that although the essential object of Article 8 (Art. 8) is to protect

against arbitrary interference by public authorities, there may in

addition be positive obligations inherent in an effective "respect" for

family life (see eg. Eur. Court H.R., Marckx judgment of 13 June 1979

Series A no. 31 p. 15, para. 31). However, the Commission does not

consider that Article 8 (Art. 8) can be interpreted in such a way as

to extend a positive obligation to provide alternative accommodation

of an applicant's choosing. It recalls that the Council has made

efforts to investigate the availability of alternative possibilities

for the applicant's accommodation and that it offered tenancies in

another area in accordance with applicant's family's expressed wish to

live in a rural area. Notwithstanding the tragic situation in which the

applicant finds herself, the Commission does not consider that the

Council's inability to find a suitable official site for a caravan

constitutes a failure to respect the applicant's private and family

life or her home.

The Commission notes that the applicant also refers to the

combined effect of legislation and government planning policy as

preventing her from pursuing her traditional way of life. Insofar as

this may refer to an inability to return to a nomadic existence by

travelling throughout the country due to lack of lawful stopping

places, the Commission does not consider that the applicant can claim

to be a victim of any interference since it is not apparent that it is

her intention to return to such a lifestyle. To the extent that it is

claimed that the state of law and planning policy is such as to prevent

her taking up residence in her caravan in any unoccupied or roadside

land in the area or as to result in there being insufficient provision

of lawful official sites, the Commission considers that Article 8

(Art. 8) of the Convention cannot be construed as conferring a right

to take up residence on land belonging to others nor as imposing a

positive obligation to ensure vacancies on official sites for persons

wishing to return after a number of years to the traditional way of

life of a gypsy.

Consequently, the Commission finds on the facts submitted by the

applicant that there has been no lack of respect for her private and

family life and home. It follows that this part of the application must

be dismissed as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3. The applicant further complains that she has suffered

discrimination contrary to Article 14 (Art. 14) of the Convention.

That provision provides as follows.

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Commission recalls that Article 14 (Art. 14) protects

individuals placed in analogous situations from any discrimination in

the enjoyment of the substantive rights set out in the Convention and

Protocols (see eg. Eur. Court H.R. Van der Mussele judgment of 21

November 1982, Series A no. 70). It is not however substantiated from

the applicant's submissions that she has been treated differently than

any other person in a relevantly similar position.

It follows that the applicant's complaints fail to disclose any

discrimination contrary to Article 14 (Art. 14) of the Convention.

Accordingly, this part of the complaint must be dismissed as manifestly

ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.

4. The applicant further claims that she has no remedy for the

alleged violations of her Convention rights contrary to Article 13

(Art. 13) of the Convention. That provision provides as follows.

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls that Article 13 (Art. 13) of the

Convention requires a remedy in domestic law only in respect of

grievances which can be regarded as "arguable" in terms of the

Convention (Eur. Court H.R., Powell and Rayner judgment of 21 February

1990, Series A no. 172, p.14, para. 31). In view of the findings

above, the Commission does not consider the applicant to have

established an arguable claim under the Convention.

It follows that this part of the complaint must be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BURTON v. THE UNITED KINGDOM

BURTON v. THE UNITED KINGDOM

LEXI