AS TO THE ADMISSIBILITY OF

                      Application No. 27842/95

                      by Samuel CROTHERS

                      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 3 April 1995 by

Samuel CROTHERS against the United Kingdom, and registered on

11 July 1995 under file No. 27842/95;

     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 1957 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 25 October 1991 the applicant's father's dog was seized by

police and his father was charged with various offences in relation to

that dog under the Dangerous Dogs Act 1991 ("the 1991 Act"). Pursuant

to a prosecution notice of discontinuance, the Magistrates' Court

discontinued these proceedings.

     However, on 6 March 1992 the Magistrates' Court made an order for

the destruction of the dog, further to an application by the

prosecution pursuant to section 5(4) of the 1991 Act of which no notice

had been given to the applicant's father. On judicial review the High

Court quashed the decision of the Magistrates' Court finding that the

rules of natural justice meant that the applicant's father should have

been given the opportunity to be heard and that section 5(4) should not

have been used in this particular case because there had been a

previous prosecution (albeit discontinued).

     Subsequently, ownership of the dog was transferred to the

applicant and on 27 July 1992, when the dog was temporarily released

to the applicant, the applicant identified himself to the police as the

owner. Fresh proceedings under section 5(4) of the 1991 Act were issued

and the hearing was fixed for 13 October 1992. On 12 October 1992 the

applicant's solicitor wrote a detailed letter to the court indicating

clearly that the applicant would not be contesting the proceedings as

the dog had been examined on behalf of the applicant by two experts who

had indicated that it would qualify as a dog "of the type known as the

pit bull terrier" and thus he had advised his client that there was

little point in opposing the proceedings.

     However, on the day of the hearing the applicant denied that he

had instructed his solicitor to indicate that he would not be opposing

the proceedings and requested an adjournment to obtain other legal

representation. He was refused an adjournment and he together with his

expert witness were not allowed to give evidence. Having heard the

prosecution evidence as to the dog's breeding the court made a

destruction order in relation to the dog.

     A subsequent application for judicial review to the High Court,

raising, inter alia, the question of whether the applicant and his

expert should have been heard at the Magistrates' Court hearing, was

unsuccessful, judgment being given on 13 October 1994. Having found

that the Magistrates' Court were within their jurisdiction this time

in employing section 5(4) of the 1991 Act (because ownership of the dog

had changed in the meantime), the High Court noted the following points

as significant.

     In the first place, the High Court noted that not only did the

applicant's solicitor write to the Magistrates' Court the day before

the relevant hearing stating that the applicant would not be opposing

the application but that solicitor outlined in that letter in some

detail that two experts had been briefed on the applicant's behalf, had

examined the dog and had identified the dog as a dog "of the type known

as the pit bull terrier". It was for that reason, according to the

solicitor's letter, that the solicitor had advised that there was no

point in contesting the application for the destruction of the dog. The

High Court went on to find that the applicant had failed to explain at

all his allegation, that his solicitors had acted without his

instructions, even though he had been ordered by the High Court to file

very full evidence about the relevant Magistrates' Court hearing and

when he had almost two years before the High Court appeal hearing to

formulate this explanation.

     Secondly and in relation to the evidence which the applicant had

wished to present as to the dogs identity, the High Court noted that

the applicant filed two expert affidavits with the High Court which

stated that the dog was not of the relevant type. However, the

applicant's own affidavit before the High Court stated that one of

these latter experts was one of the experts who had already confirmed

to the applicant's solicitor that the dog was of the pit bull terrier

type. The other expert (whom it appears attended the hearing in the

Magistrates' Court in October 1992 with the applicant) described his

evidence as based on his previous "acquaintance" with the dog when it

was owned by the applicant's father.

     The High Court therefore took the view that, while the

Magistrates' Court was not correct in relying on section 5(5) of the

1991 Act to exclude the applicant's and his expert's evidence, the

substance of the Magistrates' Court's decision in this respect was not

wrong and that the interests of justice would not be served by sending

the matter back for a rehearing. The applicant subsequently applied for

leave to appeal to the Court of Appeal and this was refused on 16 March

1995. The dog has since been destroyed.

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. 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).

     Section 5(4) states that where a dog has been seized by the

police and it appears that no one has been prosecuted for an offence

under the 1991 Act in relation to that dog (whether because the owner

cannot be found or for any other reason), a Justice of the Peace shall

order the destruction of the dog if it is a dog to which section 1 of

the 1991 Act applies.

     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 in the case of an adult dog and

prior to the 30 November 1991 in the case of a puppy), 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 under Article 6 para. 1 of the

Convention that he was denied the opportunity to make submissions and

produce expert evidence before the Magistrates' Court in October 1992.

2.   He also complains that his relationship with his dog came within

the scope of his right to respect for his private and family life and

that the seizure and destruction of the dog failed to show sufficient

respect for those rights in violation of Article 8 of the Convention.

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

the 1991 Act discriminates against certain types of property

irrespective of the character or behaviour of the dog in respect of

whom charges are formulated and irrespective of any public benefit.

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

has no effective domestic remedy.

THE LAW

1.   In the first place, the applicant invokes Article 6 para. 1

(Art. 6-1) of the Convention submitting that, since he was not allowed

to argue his case and introduce his expert evidence before the

Magistrates' Court in October 1992, he did not receive a fair hearing.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant,

reads as follows:

     "In the determination of his civil rights and obligations or of

     any criminal charge against him, everyone is entitled to a fair

     and public hearing within a reasonable time by an independent and

     impartial tribunal established by law. ..."

     The Commission notes that the relevant proceedings issued under

section 5(4) of the 1991 Act and therefore did not involve the

determination of any criminal charge against the applicant. However,

even assuming that these proceedings involved the determination of the

applicant's civil rights, the Commission considers that this complaint

is, in any event, inadmissible for the reasons set out below.

     In considering the fairness of proceedings under Article 6 para.

1 (Art. 6-1) of the Convention in light of the refusal by the

Magistrates' Court to hear the applicant and his expert, regard must

be had to the particular circumstances of the case and the proceedings

as a whole (No. 9938/82, Dec. 15.7.86, D.R. 48 p. 21).

     The Commission notes that the only matter which could have been

at issue during the Magistrates' Court hearing in October 1992 was the

breed of the dog. At first glance the refusal to hear the applicant and

his expert witness would seem to be harsh.

     However, the issue was carefully considered by the High Court.

That court found the detailed nature of the solicitor's letter together

with its contents (including references to two expert opinions against

the position which the applicant adopted the following day before the

Magistrates' Court), significant. The High Court also noted the

applicant's failure to explain in any way to that court his allegation

that he had given no such instructions to his solicitor. It is further

noted that no such explanation has been provided to the Commission.

Moreover, the High Court noted an inconsistency between the expert

evidence previously presented to the Magistrates' Court by the

solicitor's letter and that filed on behalf of the applicant before the

High Court. The High Court therefore took the view that, in the

circumstances, the interests of justice would not be served by sending

the matter back for a rehearing.

     In view of the above, the Commission considers that nothing has

been presented by the applicant to demonstrate that the High Court was

wrong in so deciding. Taking the proceedings as a whole, the Commission

considers that applicant has not demonstrated that the decision of the

Magistrates' Court not to hear him or his expert witness rendered the

proceedings unfair within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

     Accordingly the Commission finds this complaint of the applicant

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

(Art. 27-2) of the Convention.

2.   He also complains that his relationship with his dog came within

the scope of his right to respect for his private and family life and

that the seizure and destruction of the dog failed to show sufficient

respect for those rights in violation of Article 8 (Art. 8) of the

Convention.

     The Commission recalls that it has previously held that the

keeping of a pet did 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.

3.   In addition, he complains under Article 14 (Art. 14) of the

Convention that the 1991 Act discriminates against certain types of

property irrespective of the character or behaviour of the dog in

respect of whom charges are formulated and irrespective of any public

benefit. Other less draconian measures would, according to the

applicant, suffice to achieve the purpose of the legislation.

     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) 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 and that the effective aim

of the legislation is to wipe out the breed from the United Kingdom.

     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

exemption scheme provided by the 1991 Order together with the

relatively uncomplicated requirement to use a muzzle and lead in a

public place. 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 within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

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

Convention that he has no effective domestic remedy.

     However, the case-law of the Convention organs establishes 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 which warrants

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

     It follows that this complaint must also be rejected as being

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)