AS TO THE ADMISSIBILITY OF

                      Application No. 28846/95

                      by Richard FOSTER

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 M.P. PELLONPÄÄ

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 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 July 1995 by

Richard FOSTER against the United Kingdom and registered on  4 October

1995 under file No. 28846/95;

     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 facts as submitted by the applicant may be summarised as

follows. The applicant is an British citizen, born in 1972 and is

resident in London. He is represented before the Commission by Anthony

Pickford, a barrister practising in London.

Particular circumstances of the case

     On 3 June 1993 the applicant was convicted by a Magistrates'

Court of having in his possession on 11 October 1992, contrary to

section 1(3) of the Dangerous dogs Act 1991, a dog "of the type known

as the pit bull terrier". The Magistrates' Court ordered, inter alia,

the applicant to pay a fine and that the dog be destroyed.

     On appeal, the Crown Court (after a full rehearing) dismissed the

applicant's appeal on 2 June 1995. The only matter at issue (as in the

Magistrates' Court) was whether the dog was "of the type known as the

pit bull terrier" in respect of which issue the applicant and the

prosecution called a number of expert witnesses. The Crown Court

considered that section 1(1)(a) of the 1991 Act meant that the question

to be asked is whether the relevant dog substantially conforms with the

accepted characteristics of the pit bull terrier and in this respect

approved the breed standards set down by the American Dog Breeders

Association ("ADBA"). Having considered the evidence presented by both

sides, the court concluded that the applicant had not satisfied the

burden of proof, that the dog substantially complied with the breed

standards of the ADBA and that the dog was therefore "of the type known

as the pit bull terrier". In so concluding as to the dog's "type", the

court took into account evidence presented as to the animal's

behaviour.

     The dog was seized on the applicant being charged and remains in

police custody to date pending the outcome of the present application.

Relevant domestic law and practice

     Pit bull terriers were bred as fighting dogs. When dog fighting

was banned in the United Kingdom, this breed died out but was re-

imported back into the United Kingdom from the United States in the

1970's.

     Dogs generally have breed standards which are laid down and

recognised by different associations of dog breeders. The English

Kennel Club has no standards in relation to pit bull terriers because

of the long period when those dogs were not bred in the United Kingdom.

The United States, on the other hand, has two associations setting down

such standards - the American Dog Breeders Association ("ADBA") and the

United Kennel Club ("UKC").

     The ADBA exists for pit bull terriers alone, its standards are

widely used, it is concerned to take into account fighting standards

and the dogs imported into the United Kingdom in the 1970's were

registered with the ADBA. Its standards mainly relate to the physical

characteristics of a pit bull terrier but also refer to the dog's

"gameness and aggressiveness". The UKC provides standards for many

breeds of dog registered with it (including pit bull terriers) but is

mainly concerned with show dogs.

     In 1991, and pursuant to considerable public concern about recent

attacks on persons by, inter alia, pit bull terriers, parliament

enacted the Dangerous Dogs Act 1991 ("the 1991 Act") and, pursuant

thereto, the Secretary of State made the Dangerous Dogs Compensation

and Exemption Schemes Order 1991 ("the 1991 Order"). The 1991 Act is

ultimately aimed at the eradication of pit bull terriers as a breed

from the United Kingdom.

     Section 1(1)(a) of the 1991 Act states that section 1 of that Act

applies, inter alia, to "any dog of the type known as the pit bull

terrier". Section 1(3) of the 1991 Act prohibits having any dog to

which section 1 applies in one's possession or custody after the 30

November 1991 (unless exempted under the 1991 Order). Contravention of

section 1(3) is an offence, carrying a potential punishment of

imprisonment for a term not exceeding six months or a fine (section

1(7)) and requiring the court to make a destruction order in relation

to the relevant dog (section 4).

     The exemption scheme is detailed in the 1991 Order which, inter

alia, allowed owners to retain possession of their dogs. In order to

be so exempted the dog had to be, inter alia, registered with the

police (prior to the 12 October 1991 for adult dogs and prior to the

30 November 1991 for puppies), neutered, permanently marked as a dog

of the relevant type and insured. A fee was also payable.

     Section 5(5) of the 1991 Act, insofar as relevant, reads as

follows:

     "If in any proceedings it is alleged by the prosecution that a

     dog is one to which section 1 ... applies it shall be presumed

     that it is such a dog unless the contrary is shown by the accused

     by such evidence as the court considers fit; and the accused

     shall not be permitted to adduce such evidence unless he has

     given the prosecution notice of his intention to do so not later

     than the fourteenth day before that on which the evidence is to

     be adduced".

COMPLAINTS

1.   The applicant mainly complains about the presumption of fact

contained in section 5(5) of the 1991 Act arguing that it is in

violation of Article 6 para. 2 of the Convention.

2.   He also complains that the condemnation of a category of dog, on

the basis of physical appearance and apparent characteristics alone

without accepting evidence as to past good behaviour, violates the

right to a fair trial guaranteed by Article 6 para. 1 of the

Convention.

3.   He also complains that he has been deprived of his basic right

to have a dog as a pet in violation of his right to respect for his

private and family life in violation of Article 8 of the Convention.

4.   The applicant further claims that the 1991 Act has denied his

peaceful enjoyment of his possessions contrary to Article 1 of Protocol

1 as the measures in question went beyond any fair view of the public

interest in the control of the use of property.

5.   In addition, he complains under Article 14 of the Convention that

the 1991 Act discriminates against a certain type of dog irrespective

of the character or behaviour of the dog in respect of whom charges are

formulated.

6.   Finally, he complains under Article 13 of the Convention that he

has no effective domestic remedy because there is no option, other than

a destruction order, available to a court having convicted an owner

under section 1(3) of the 1991 Act.

THE LAW

1.   In the first place, the applicant submits that the practical

effect of the presumption of fact contained in section 5(5) of the 1991

Act, when operated in conjunction with, in particular, sections 1(1)(a)

and 1(4)) of the 1991 Act, is an inevitable finding against the

applicant and the mandatory destruction of the dog. As such the

presumption is in violation of Article 6 para. 2 (Art. 6-2) of the

Convention, which Article reads as follows:

     "Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to law."

     The Commission recalls that the criteria to be applied in

determining whether proceedings involve the determination of a criminal

charge are the qualification of the offence in domestic law, the very

nature of the offence together with the nature and degree of severity

of the penalty which the accused risks incurring (see, for example, No.

13877/88, Dec. 17.5.90, D.R. 65 p. 279). Applying these criteria and

in view, in particular, of the sanction set out in section 1(7) of the

1991 Act for a contravention of section 1(3) of that Act, the

Commission considers that the proceedings against the applicant

constituted the determination of a criminal charge.

     As regards the complaint under Article 6 para. 2 (Art. 6-2) of

the Convention, the Commission recalls that the Court, in the Salabiaku

judgment and more recently in the Pham Hoang judgment, stated that the

Convention does not prohibit presumptions of fact or law in principle,

but does require Contracting States to remain within certain reasonable

limits as regards criminal law which limits take into account the

importance of what is at stake and maintain the rights of the defence.

The Court, in the above-mentioned judgments, also went on to consider

whether the application of the relevant presumptions was compatible

with the presumption of innocence (Eur. Court H.R., Salabiaku judgment

of 7 October 1988, Series A no. 141-A, pp. 14-18, paras. 26-30 and Pham

Hoang judgment of 25 September 1992, Series A no. 243, pp. 21-22, para.

33).

     In the present case, the Commission also recalls that the

presumption contained in section 5(5) of the 1991 Act is one as to fact

namely, it is presumed that a dog is "of the type known as the pit bull

terrier".

     The Commission notes what was at stake for the applicant namely,

a possible criminal conviction together with a potential penalty of,

inter alia, six months imprisonment and the destruction of his dog.

However, the Commission finds that it is significant that section 5(5)

of the 1991 Act expressly provides an opportunity to the defendant to

adduce evidence at the initial hearing as to a dog's breeding and that

the applicant did this before the Magistrates' Court and the Crown

Court. Indeed the sole issue of substance throughout the domestic

proceedings was whether the dog in question was "of the type known as

the pit bull terrier". Detailed evidence was submitted by the

prosecution and the defence as to the dog's breeding before the courts

concluded that the ADBA standards, being the most rigorous standards

available, could be utilised, that the dog substantially complied with

those standards and that the applicant had therefore not, on the

balance of probabilities, established that his dog was not of a type

known as a pit bull terrier.

     In such circumstances, the Commission does not consider that the

presumption as to fact contained in section 5(5) of the 1991 Act led

to an "inevitable" result as claimed. Furthermore, the Commission finds

that the presumption in question falls within reasonable limits, even

in light of what was at stake for the applicant, given the opportunity

expressly provided to the defence to rebut that presumption and that

section 5(5) of the 1991 Act was applied in a manner compatible with

the presumption of innocence. Accordingly, the Commission concludes

that the applicant's complaint under Article 6 para. 2 (Art. 6-2) of

the Convention is manifestly ill-founded within the meaning of Article

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

2.   He further complains that the condemnation of a category of dog,

on the basis of their physical appearance and apparent characteristics

alone without accepting evidence as to past good behaviour, together

with the lack of a sanction on conviction other than a destruction

order violate the right to a fair trial set out in Article 6 para. 1

(Art. 6-1) of the Convention.

     Having regard to the nature of these submissions, the Commission

considers that they are more properly considered under Article 1 of

Protocol 1 (P1-1), this complaint essentially being a grievance with

the provisions of the 1991 Act itself and there being no suggestion

(apart from the issue considered at 1. above) that the hearings

themselves were procedurally unfair.

3.   The applicant further argues that the deprivation of his dog

constitutes a lack of respect for his private and family life

guaranteed by Article 8 (Art. 8) of the Convention.

     As to whether the applicant's complaint is within the scope of

Article 8 (Art. 8) of the Convention, the Commission recalls its

previous case-law in which it held that the keeping of a pet does not

fall within the sphere of the owner's private or family life for the

purposes of Article 8 (Art. 8) of the Convention (No. 6825/74, X v.

Iceland, Dec. 18 May 1976, D.R. 5 p. 86). While the applicant argues

to the contrary, the Commission does not consider that, in the

circumstances of this case, there exists any reason to depart from or

to distinguish the aforementioned case-law (cf., No. 25517/94, Dec.

3.4.95, unpublished).

     Accordingly, the Commission finds this complaint incompatible

ratione materiae pursuant to Article 27 para. 2 (Art. 27-2) of the

Convention.

4.   The applicant claims that the 1991 Act has denied his peaceful

enjoyment of his possessions contrary to Article 1 of Protocol 1

(P1-1) as the measures in question went beyond any fair view of the

public interest in the control of the use of property.

     Article 1 of Protocol 1 (P1-1), insofar as relevant, reads as

follows:

     "Every natural or legal person is entitled to the peaceful

     enjoyment of his possessions. No one shall be deprived of

     his possessions except in the public interest and subject

     to the conditions provided for by law and by the general

     principles of international law."

     The Commission recalls that the applicant's dog was impounded

since he was charged, remains so to date and is the subject of a

destruction order and considers that the applicant was deprived of

property within the meaning of the second sentence of the first

paragraph of Article 1 of Protocol 1 (P1-1).

     In order to be so justified, it must be shown that the

deprivation was in accordance with the conditions provided for by law

and in the public interest. Furthermore, not only must the aim of the

deprivation of property be in the public interest, but there must also

be a reasonable relationship of proportionality between the means

employed and the aim sought to be realised (cf., for example, Eur.

Court H.R. Holy Monasteries judgment of 9 December 1994, Series A no.

301-A, para. 70). This implies that a fair balance must be struck

between the demands of the general interests of the community and the

requirement to protect the individual's fundamental rights, which

balance would not be found if the individual was found to have borne

an excessive burden (cf. Eur. Court  H.R., Sporrong and Lönnroth

judgment of 23 September 1982, Series A no. 52, pp. 26-28, paras. 69-

73).

(a) Subject to the conditions provided for by law

     The Commission recalls that the term "law" in the Convention

refers not only to compliance with the domestic law but also to the

quality of that law requiring it to be compatible with the rule of law

so that, inter alia, the law in question must not be arbitrary and must

be formulated with sufficient precision to enable citizens to regulate

their conduct (Eur. Court H.R., James and Others judgment of 21

February 1986, Series A no. 98, p. 41, para. 67 and the Sunday Times

judgment of 26 April 1979, Series A no. 20, p. 31, para. 49). The

Commission, having examined the applicant's submissions, finds no

evidence that the prosecution of the applicant was other than in

accordance with the 1991 Act or that his prosecution or conviction was

arbitrary in its effect.

     However, the applicant submits that the phrase "any dog of the

type known as the pit bull terrier" is vague and that definitively

deciding on such an issue is notoriously difficult. In this respect the

Commission does not consider that, in view of the availability of

objective standards by which various characteristics of a dog can be

assessed to establish its identity, that the formulation of the section

1(1)(a) of the 1991 Act lacks sufficient precision to have enabled the

applicant to regulate his conduct as regards his dog to avoid

prosecution under section 1(3) of the 1991 Act. The Commission is also

cognisant, in this respect, of the exemption scheme provided by the

1991 Order, by which the applicant could have appropriately regulated

his conduct, if he was in any doubt as to his dog's breeding.

(b) Public interest

     The Commission considers that it is clear that the provisions of

the 1991 Act, which applied in the applicant's case, operate in the

interests of public safety.

(c) Proportionality of the deprivation

     In the context of his complaint under Article 6 para. 1

(Art. 6-1) of the Convention, the applicant points out that the 1991

Act denounces a breed rather than a particular dog's dangerous

behaviour (section 1(1)(a)). He also disputes the necessity of the

mandatory destruction order (section 4) in that a number of other

options could have been available by the 1991 Act. For example, he

points out that the courts cannot allow a period of probation, order

an alternative to a destruction of the dog or allow late registration

in order to qualify for the exemption under the 1991 Order. According

to the applicant therefore the practical effect of the 1991 Act is

that, if the owner misses the deadline for registration and thus

qualification for the exemption scheme, the possession or ownership of

such a dog is in itself unlawful and its destruction is mandatory.

     On the one hand, the Commission accepts that the conviction based

on breed rather than past behaviour and the consequent mandatory

destruction order, being provisions ultimately aimed at eradicating pit

bull terriers as a breed from the United Kingdom, are draconian

measures.

     However and on the other hand, the Commission is cognisant of the

fact that the pit bull terrier breed was developed as a fighting animal

which, prior to the introduction of the 1991 Act, was known to have

attacked persons in the United Kingdom causing much public concern. In

addition, the Commission notes that a full exemption scheme was

provided for by the 1991 Order which allowed persons such as the

applicant, who had fulfilled certain conditions prior to a certain

date, to retain possession of their dogs subject to the requirement

that they be on a lead and muzzled in public places.

     In these circumstances, the Commission considers that the

provisions of the 1991 Act referred to by the applicant demonstrate a

reasonable relationship of proportionality between the means employed

and the aim sought to be realised in that a fair balance was struck

between the importance of ensuring the safety of the public and the

requirement to protect the applicant's rights under Article 1 of

Protocol 1 (P1-1).

     Therefore the Commission concludes that this complaint of the

applicant is manifestly ill-founded within the meaning of Article 27

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

5.   The applicant complains under Article 14 (Art. 14) of the

Convention that the 1991 Act discriminates against a certain breed of

dog irrespective of the character or behaviour of the dog in question.

Article 14 (Art. 14) of the Convention, insofar as relevant, reads as

follows:

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

     Convention shall be secured without discrimination on any ground

     such as ...  political or other opinion, ... property or other

     status."

     The Commission recalls that this Article protects individuals in

analogous situations from a discriminatory difference in treatment in

the exercise of the rights and freedoms recognised by the Convention

and its Protocols. Article 14 (Art. 14) of the Convention has,

therefore, no independent existence and the Commission has accordingly

considered this complaint of the applicant in conjunction with Article

1 of Protocol 1 (P1-1), into the scope of which latter Article a

complaint relating to the seizure and destruction of the applicant's

dog could be said to fall.

     However, such a difference in treatment will only be

discriminatory if it has "no objective and reasonable justification"

namely, if it does not pursue a "legitimate aim" and if there is no

"reasonable relationship of proportionality between the means employed

and the aim sought to be realised" (see, for example, Eur. Court H.R.,

Darby judgment of 23 October 1990, Series A no. 187, p. 12, para. 31).

Furthermore, the Contracting States enjoy a certain margin of

appreciation in assessing whether and to what extent differences in

otherwise similar situations justify a different treatment in law; the

scope of this margin will vary according to the circumstances, the

subject matter and the background (Eur. Court H.R., Lithgow judgment

of 8 July 1986, Series A no. 102, pp. 66-67, para. 177).

     The Commission accepts that the 1991 Act singles out, inter alia,

owners of pit bull terrier from owners of other dogs which by their

behaviour show themselves to be dangerous. However, the Commission

finds that this difference in treatment has an objective and reasonable

justification given that this type of dog is bred for fighting and the

experience of pit bull terriers in the United Kingdom. The Commission

further finds that such difference in treatment pursues the legitimate

aim of public safety and demonstrates a reasonable relationship of

proportionality between the means employed and the aim sought to be

realised in light, in particular, of the existence of the exemption

scheme in the 1991 Order together with the relatively uncomplicated

requirement to use a muzzle and lead in public. Having regard, in

addition, to the margin of appreciation enjoyed by the Contracting

States in this area, the Commission considers that this difference in

treatment is not discriminatory within the meaning of Article 14

(Art. 14) of the Convention.

     Accordingly, the Commission finds this complaint manifestly ill-

founded pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.

6.   The applicant complains under Article 13 (Art. 13) of the

Convention that he has no effective domestic remedy. In this respect,

he points to the mandatory nature of the destruction order pursuant to

conviction under section 1(3) of the 1991 Act and the inability of the

courts to make any alternative orders upon convicting the owner of a

relevant dog.

     Insofar as the applicant claims that there was no domestic remedy

in respect of his complaints that the provisions of the relevant

legislation do not comply with the Convention provisions and Protocols,

the Commission recalls that Article 13 (Art. 13) of the Convention does

not go so far as to guarantee a remedy allowing a Contracting State's

laws as such to be challenged before the national authority on the

grounds of being contrary to the Convention (Eur. Court H.R., James and

Others judgment of 21 February 1986, Series A no. 98, p. 47, para. 85).

     Insofar as the applicant complains about the consequences for him

of the application of the legislation, the Commission recalls that

Article 13 (Art. 13) of the Convention does not require a remedy in

domestic law for all claims alleging a breach of the Convention; the

claim must be an arguable one (Eur. Court H.R., Boyle and Rice judgment

of 27 April 1988, Series A no. 131, p. 23, para. 52). In light of the

above conclusions of the Commission concerning the applicant's other

complaints, the Commission finds that the applicant does not have an

arguable claim, of a breach of his rights and freedoms by the

application of the legislation in his case, which warrants a remedy

under Article 13 (Art. 13) of the Convention.

     In such circumstances the Commission considers this complaint

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

(Art. 27-2) of the Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

    (M.F. BUQUICCHIO)                           (C.L. ROZAKIS)