Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18401/91

by Ruby SMITH

against the United Kingdom

The European Commission of Human Rights sitting in private on

6 May 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

J.-C. SOYER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 May 1991 by

Ruby Smith against the United Kingdom and registered on 24 June 1991

under file No. 18401/91;

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 8 July

1992 and the observations in reply submitted by the applicant on

16 October 1992;

- the oral submissions of the parties at the hearing of 6 May 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1962. She is

represented by Mr. Luke Clements of Thorpes, a firm of solicitors

practising in Hereford.

The facts, as submitted by the parties and as are apparent from

the case-file, may be summarised as follows:

The applicant is a gipsy and is by tradition and cultural

preference a caravan dweller. The applicant is illiterate. Since 14

August 1984 she has resided at Plot 13 Kempston, Hardwick Caravan Site,

Kempston near Bedford ("the Kempston site"). This site is in the

district of North Bedfordshire in the County of Bedfordshire. It was

constructed to provide accommodation for gipsies. The applicant has

been resident within the County of Bedfordshire throughout her life.

The applicant's father and one of her sisters also reside at this site,

in separate caravans.

On 12 January 1988 the Secretary of State for the Environment,

acting under Section 12 of the Caravan Sites Act 1968, designated the

district of North Bedfordshire as an area to which Section 10 of the

said Act applies. Under Section 10 of the Act it is an offence for a

gipsy to station a caravan elsewhere in the area outside official or

private sites (see Relevant Domestic Law and Practice). All four

districts within the County of Bedfordshire have now been designated

for the purposes of the 1968 Act.

Many of the districts within counties surrounding Bedfordshire

have also been designated for the purposes of the 1968 Act.

On 17 January 1991 the Bedfordshire County Council ("the

Council")sought against the applicant an order for summary possession

of the applicant's plot.

On 7 February 1991 the County Court adjourned the application

for summary possession to enable the applicant to apply for judicial

review. On 15 March 1991 the applicant was granted leave to apply for

judicial review of the Council's decision to evict her from the

Kempston site. In her application, the applicant claims, inter alia,

that the Council has failed to fulfil its statutory duties to provide

adequate or a sufficient number of gipsy sites in the area or

adequately to maintain those sites in existence. For example,in or

about May 1990, the Fairhill site, which had provided about 20 plots

for caravans, had been closed by the Borough Council and the Council

has served notices to quit on half the residents of the Kempston site.

The applicant alleges there are now an insufficient number of places

to meet the demand.

On 25 June 1992, the applicant settled the judicial review

proceedings on the basis that she be allowed to stay on the site, that

the site be refurbished and that allegations about her bad character

be withdrawn.

RELEVANT DOMESTIC LAW AND PRACTICE

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 os 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

1. The applicant submits that, as a member of a minority, her right

to respect for her private and family life and home guaranteed under

Article 8 of the Convention is being interfered with due to the

legislative framework in place in the United Kingdom. She submits that

she is a gipsy and therefore is accustomed to and chooses a nomadic

lifestyle, and rejects permanent living accommodation and a

conventional stationary existence. She claims that the designation

system interferes with her nomadic lifestyle in effect by

"criminalising" it.

2. The applicant further complains that designation impedes freedom

of association between herself and other gipsies. She invokes Article

11 of the Convention.

3. The applicant submits that her rights under Article 14 of the

Convention are violated in that the designation powers under Section

10 and 11 of the 1968 Act only apply to gipsies as defined in the 1968

Act i.e. making it an offence for gipsies to station their caravans

anywhere else and giving powers to order the removal of their caravans.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 May 1991 and registered on

24 June 1991.

On 1 April 1992, the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits.

The Government's observations were submitted on 8 July 1992 after

an extension of the time-limit and the applicant's observations were

submitted on 16 October 1992 also after an extension of the time-limit.

The Commission decided on 8 September 1992 to grant legal aid to

the applicant.

By letter dated 2 November 1992, the applicant's representative

informed the Commission that pursuant to settlement of the judicial

review proceedings, she withdrew her complaints under Articles 5, 6 and

13 of the Convention and Articles 1 and 2 of Protocol No. 1.

On 11 December 1992, the Commission decided to hold an oral

hearing on the admissibility and merits of the remaining complaints.

At the oral hearing which was held on 6 May 1993, the parties

were represented as follows:

For the Government:

Mrs. A. GlOVER Agent

Mr. David PANNICK, QC Counsel

Advisers:

Mr. David RUSSELL Department of Environment

Ms. Virginia HARRISON Department of Environment

Mr. Charles HARKNESS Department of Environment

For the applicant:

Mr. Peter DUFFY Counsel

Mr. Luke CLEMENTS Solicitor

Ms. Clare BLANCHARD pupil barrister

THE LAW

The applicant complains that, as a member of the nomadic gipsy

minority, her rights under Articles 8, 11 and 14 (Art. 8, 11, 14) of

the Convention are violated by legislation restricting camping and

caravan sites.

Article 26 (Art. 26) of the Convention

The Government submit that the applicant has failed to exhaust

domestic remedies as required by Article 26 (Art. 26) of the Convention

since she has not proceeded with her application for judicial review

to challenge any failure of the local authority to comply with their

statutory duties. Nor has she instituted judicial review proceedings

to challenge the designation by the Secretary of State of the district

in Bedfordshire where the applicant resides as a prohibited area for

gipsy caravans, or any failure of his to revoke such designation.

The applicant has stated that judicial review would not provide

an effective method of challenging the content of the relevant

legislation.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress. An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).

It is furthermore established that the burden of proving the

existence of available and sufficient domestic remedies lies upon the

State invoking the rule (cf. Eur. Court. H.R., Deweer judgment of

27 February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80,

Dec. 11.12.82, D.R. 30 p. 96, at p. 102).

The Commission recalls that judicial review proceedings provide

only a limited means of challenging a decision. They may be used to

seek a remedy against the decision of a public authority on the grounds

of illegality, irrationality or procedural impropriety, but cannot

impugn the merits of a decision. They cannot be used to challenge the

propriety of the legislation itself which is the essence of the

applicant's case.

In these circumstances, the Commission finds that the application

cannot be declared inadmissible for non-exhaustion of domestic

remedies.

Article 8 (Art. 8) of the Convention

The applicant complains that the designation system violates her

right to respect for her private and family life and home.

Article 8 (Art. 8) of the Convention provides:

"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 Government however submit that the applicant cannot claim to

be a victim of any interference with the rights enjoyed under Article

8 para. 1 (Art. 8-1). They refer to the fact that the applicant has

lived on the present site provided by the local authority for the

previous six years and successfully resisted proceedings to evict her.

The Government explain further that gipsies have no right to camp on

"common land" because they have no title to the land, and that no-one

has any right to camp by the side of highways, in verges or lay-bys or

on land belonging to others without the owner's consent. Consequently,

the prohibition in force against gipsies under the designation system

cannot be said to be an interference with rights under Article 8

(Art. 8).

The applicant submits that she is a "victim". She points out that

she is a member of a minority which is subject to criminal sanctions,

that she cannot continue her nomadic way of life without the risk of

prosecution and that, as in the Dudgeon and Norris cases (Eur. Court

H.R., Dudgeon judgment of 22 October 1981, Series A no. 45, and Norris

judgment of 26 October 1988, Series A no. 142), the existence of

legislation criminalising the conduct of a minority is sufficient,

without the need to show the sanction has been or will be imposed on

the applicant herself.

The Commission recalls that Article 25 (Art. 25) of the

Convention provides that the Commission may only receive petitions from

persons, non-governmental organisations or groups of individuals

"claiming to be a victim "of a violation by one of the High Contracting

Parties" of the rights contained in the Convention. This requires that

an applicant must be able to claim to be actually affected by the

measure of which she complains. The Commission may not entertain

actions in the nature of an actio popularis nor claims in abstracto

that a law contravenes the provisions of the Convention (see eg Eur.

Court H.R., Klass and Others judgment of 6 September 1978, Series A no.

28, p. 17-18, para. 33).

In the present case, the applicant has not indicated that she in

fact wishes to live or move somewhere else or that section 10 of the

Caravan Sites Act 1968 is being applied in such a way so as to prevent

her achieving that object. Insofar as her complaint is that as a gipsy

she cannot station her caravan in order to reside wherever she might

wish, it fails to disclose any real or immediate effect on her

exercise of any rights guaranteed under Article 8 (Art. 8) of the

Convention. While in the Norris and Dudgeon cases (loc. cit.) the mere

existence of the legislation was sufficient to render the applicants

victims, the Commission would note that this conclusion was based on

considerations of the direct and continuous effect of the existence of

criminal sanctions on the persons affected; for example, the increase

in anxiety and guilt feelings which could lead on occasion to

depression and the serious consequences which can follow from that.

Also the criminal sanction in those cases infringed one of the most

personal and intimate aspects of private life. The Commission has held

that the traditional lifestyle of a minority may, in principle, attract

the guarantees of Article 8 (Art. 8) of the Convention (see eg. Nos.

9278/81 and 9415/81, Dec. 3.10.83, D.R. 35 p.30). However an

individual applicant who is member of a minority must establish that

the measure complained of has a real and direct effect on his or her

pursuit of that lifestyle. The Commission finds on the facts of the

present case that the applicant has failed to do so.

Consequently, the Commission concludes that the applicant cannot

be regarded as a "victim" of any interference with the rights

guaranteed under Article 8 (Art. 8) of the Convention. It follows that

this complaint must be rejected as being manifestly ill-founded within

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

Article 11 (Art. 11) of the Convention

The applicant has also complained that the designation system

violates her right to freedom of association under Article 11 (Art. 11)

of the Convention. This provides:

"1. Everyone has the right to freedom of peaceful assembly

and to freedom of association with others, including the

right to form and to join trade unions for the protection

of his interests.

2. No restrictions shall be placed on the exercise of these

rights other than such as are prescribed by law and are

necessary in a democratic society in the interests of

national security or public safety, 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.

This Article shall not prevent the imposition of lawful

restrictions on the exercise of these rights by members of

the armed forces, of the police or of the administration of

the State."

The Commission recalls that the applicant has not made specific

complaint of being unable to attend any particular gathering, nor

substantiated in what way the designation system has operated to

prevent her associating with other gipsies.

The Commission refers to its findings above under Article 8

(Art. 8) of the Convention. It concludes in light of these

considerations that the applicant has also not established that she has

the character of a "victim" under Article 11 (Art. 11) of the

Convention. It follows that this complaint must also be dismissed as

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

(Art. 27-2) of the Convention.

Article 14 (Art. 14) of the Convention

The applicant complains that the designation system, which

imposes a criminal sanction on gipsies alone, constitutes

discrimination contrary to Article 14 of the Convention in conjunction

with Article 8 and/or Article 11 (Art. 14+8+11).

Article 14 (Art. 14) of the Convention provides:

"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 notes, however, that the above provision is

restricted to discrimination in the enjoyment of the rights and

freedoms guaranteed under the Convention. Since the Commission has

found above that the applicant has not established that she is a

"victim" of an interference with any of the rights guaranteed under

Articles 8 or 11 (Art. 8, 11) of the Convention, this complaint fails

to fall within the scope of Article 14 (Art. 14) of the Convention.

It follows that this complaint is incompatible rationae materiae

with the provisions of the Convention, within the meaning of Article

27 para. 2 (Art. 27-2).

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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SMITH v. THE UNITED KINGDOM

SMITH v. THE UNITED KINGDOM

LEXI