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AS TO THE ADMISSIBILITY OF

Application No. 23442/94

by Carol and Walter SMITH

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 28 October 1993

by Carol and Walter SMITH against the United Kingdom and registered on

11 February 1994 under file No. 23442/94 ;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

12 May 1994 and the observations in reply submitted by the

applicant on 5 August 1994;

Having deliberated;

Decides as follows:

THE FACTS

1. Particular circumstances of the case

The applicants are British citizens born in 1959 and 1971

respectively and resident in Willingham. They are represented before

the Commission by Mr. Luke Clements, a solicitor practising in

Hereford. The facts as submitted by the parties may be summarised as

follows.

The applicants are gypsies by birth. The first applicant's

parents came from Suffolk and she was brought up travelling with her

parents each year between June and October engaging in casual seasonal

farm work. The second applicant comes from a travelling family based

in Wisbech Cambridgeshire, who also engaged in casual farm work during

the summer.

The applicants began living together in or about 1989. They

initially lived in a caravan at Bluntisham in Cambridgeshire where the

second applicant was involved in casual farm labour. When the farm work

ceased in or about 1990, they moved to the Willingham area in

Cambridgeshire where they purchased a small plot of land to the rear

of Green Acres, Meadow Drove where a number of other gypsies were

living on land which they had bought. The applicants applied

retrospectively for planning permission on 20 August 1991 but this was

refused by the District Council on 26 September 1991.

On 19 December 1991, the District Council issued enforcement

notices in respect of the applicants' occupation of their land. The

applicants appealed. An Inspector visited the site and the District

Council and the applicants made written representations. By decision

dated 17 July 1992, the appeal was refused. The Inspector noted

problems with the highway safety aspect of the site but found the

principal objection lay in the detriment to the rural nature of the

area. While she noted that there was doubt as to whether there was

sufficient provision for gypsy sites in the area, she considered that

the overall need for sites was not sufficient to outweigh the strong

planning objections to the site. The Inspector extended the time for

compliance to nine months.

In February 1992, the first applicant's mother was diagnosed as

suffering from cancer and the first applicant's parents moved their

caravans onto the applicants' site in order that the first applicant

could care for her mother. The District Council were informed of this

and informed the applicants that, though they would not take any action

in respect to this, they could not agree to any further extension in

time for compliance with the enforcement notices.

On 2 December 1992, the first applicant's daughter was born.

In December 1992, the first applicant's mother died. Her father

suffered a stroke shortly afterwards and has required hospital

treatment. He remains in poor health and continues to live in a caravan

next to the applicants.

By letter dated 20 May 1993, the Department of the Environment

informed the District Council that the Secretary of State had decided

to designate the area of South Cambridgeshire under section 12 of the

Caravan Sites Act 1968 (see below). Designation was granted on the

basis of the Council's assurance that they will apply their powers

humanely and give sympathetic consideration to applications for gypsy

sites. It was noted that a small number of gypsies still remained on

unauthorised sites but that, in light of the provision made for sites

which is greater than in any other district, it was considered "not

expedient for adequate accommodation to be provided for gypsies

residing in or resorting to South Cambridgeshire District".

The Order designating the district of South Cambridgeshire came

into force on 13 August 1993.

The District Council brought proceedings for breach of the

enforcement notices against the applicants. On 29 September 1993, the

case was heard at a magistrates' court. The prosecution against the

first applicant was withdrawn and the second applicant was given a

conditional discharge and ordered to pay £ 75 costs. The District

Council undertook not to prosecute again for another three months.

On 1 July 1994, the first applicant was summonsed to appear at

the magistrates' court on 24 August 1994.

2. Relevant domestic law and practice

Caravan Sites Act 1968

Section 16 of the Caravan Sites Act 1968 (the 1968 Act) defines

"gipsies" 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 on travelling circuses, travelling

together as such."

Section 6 of the 1968 Act provides that it shall 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 designation system

Pursuant to Section 12 of the 1968 Act, where the Secretary of

State is satisfied that the duty imposed by Section 6 has been carried

out, he may designate the area of that local authority as one to which

Section 10 applies.

Section 10 of the 1968 Act provides :

"Prohibition of unauthorised camping in designated areas

(1) In any area designated under the following provisions of this

Act as an area to which this section applies it shall be an

offence for any person being a gipsy to station a caravan for the

purpose of residing for any period -

(a) on any land situated within the boundaries of a

highway; or

(b) on any other unoccupied land; or

(c) on any occupied land without the consent of the

occupier.

(2) In proceedings against any person for an offence under this

section it shall be a defence to prove that the caravan was

stationed on the land in consequence of illness, mechanical

breakdown or other immediate emergency and that he removed it (or

intended to remove it) as soon as reasonably practicable.

(3) A person guilty of an offence under this section shall be

liable on summary conviction to a fine not exceeding [level 1 on

the standard scale]; and if the offence of which he is convicted

is continued after the conviction he shall be guilty of a further

offence and shall be liable in respect thereof to a fine not

exceeding £5 for every day on which the offence is so continued."

Section 11 of the Act provides:

"Orders for removal of unlawfully parked caravans and their

occupants

(1) In any area to which section 10 of this Act applies, a

magistrates' court may, on a complaint made by a local authority,

and if satisfied that a caravan is stationed on land within the

authority's area in contravention of that section, make an order

requiring any caravan (whether or not identified in the order)

which is so stationed on the land to be removed together with any

person residing in it.

(2) An order under this section may authorise the local authority

to take such steps as are reasonably necessary to ensure that the

order is complied with and in particular, may authorise the

authority, by its officers and servants -

(a) to enter upon the land specified in the order; and

(b) to take, in relation to any caravan to be removed

pursuant to the order, such steps for securing entry

and rendering it suitable for removal as may be so

specified ..."

COMPLAINTS

The applicants complain of a violation of their right to a home

under Article 8 of the Convention. They submit that there is an

acknowledged shortfall of sites for gypsies in South Cambridgeshire and

that despite the alleged site to be built nearby no work has been done

for the two and a half years since the initial plan. They submit that

local authorities are failing to fulfil their statutory duty to provide

sites. South Cambridgeshire and the surrounding districts are

designated areas which empowers local authorities to evict gypsies on

unauthorised sites in criminal proceedings. As a result, the applicants

contend that they have nowhere they can legally or safely go and that

they wish to stay on their land where their children can live in a

stable environment and receive a continuous education.

The applicants also invoke Article 14 of the Convention in

conjunction with Article 8.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 October 1993 and registered

on 11 February 1994.

On 8 March 1994, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 12 May 1994 and

the applicants' observations in reply were submitted on 5 August 1994

after one extension in the time-limit.

On 5 July 1994, the Commission decided to grant legal aid to the

first applicant.

THE LAW

The applicants complain that they are prevented from living with

their family in caravans on their own land and from pursuing their

traditional way of life as a gypsies. They invoke Article 8 (Art. 8)

of the Convention and Article 14 (Art. 14) of the Convention which

provide:

Article 8 (Art. 8) of the Convention

"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."

Article 14 (Art. 14) of the Convention

"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 Government have submitted that the applicants' complaints

have been introduced outside the six month time-limit imposed by

Article 26 (Art. 26) of the Convention since the final decision taken

in respect of the applicants' planning position was that of the

inspector dated 17 July 1992 whereas the application was introduced

before the Commission on 28 October 1993.

The applicants contend that they are not complaining merely of

the inspector's decision but of the statutory and administrative regime

to which they are subjected as gypsies.

The Commission notes that the applicants' complaints extend

beyond the planning decision of 17 July 1992 and challenge the legal

framework which applies to them in their current position. It finds

that these complaints may be construed as relating to a continuing

situation to which the six month rule is not applicable (see eg.

No. 93081/86, Dec. 13.10.86, D.R. 49 p. 44). Consequently, the

application cannot be rejected as having been introduced out of time.

The Government contend, inter alia, that the applicants cannot

be considered victims of any violation of their rights under Article 8

(Art. 8) since as a matter of fact they were and are able to apply for

a place on one of the many other local authority sites or pursue the

option of seeking private land with planning permission. They point out

that since the applicants are currently on their own land they have not

been subject to any of the criminal sanctions which may apply under the

designation system. Further, they emphasise that the applicants took

up residence on their land without prior planning permission and argue

that the applicants cannot claim as a member of a minority group to be

immune from general planning control. To the extent that there might

have been any interference with their rights under Article 8 (Art. 8),

the Government consider that the continued effect of planning

restrictions is justified by the interests of the protection of the

environment and rural amenity. As regards Article 14 (Art. 14) of the

Convention, it is submitted that the case discloses no discrimination

in a right guaranteed under the Convention. Further, even assuming that

there was, the difference in treatment would be justified as being in

the interests of balancing the interests of the settled population and

those of the gypsy minority.

The applicants complain of a violation of their rights under

Articles 8 and 14 (Art. 8, 14) of the Convention. They are subject to

pressure to leave their own land but will face criminal sanctions if

they move on to public or unoccupied land. There are no suitable

available places on public sites, there being an acknowledged shortfall

of sites for gypsies in the area. The measures to which they are

subjected are, it is submitted, draconian, severely discriminatory and

disproportionate. These factors operate cumulatively to put pressure

on gypsies to abandon their traditional lifestyle of a gypsy and render

such lifestyle practically impossible.

The Commission has taken cognizance of the submissions of the

parties. It considers that the applicants' complaints raise serious

issues of fact and law under the Convention, the determination of which

should depend on an examination of the merits. It follows that the

application cannot be dismissed as manifestly ill-founded. No other

ground for declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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SMITH v. THE UNITED KINGDOM

SMITH v. THE UNITED KINGDOM

LEXI