P. v. the UNITED KINGDOM
Doc ref: 14751/89 • ECHR ID: 001-791
Document date: December 12, 1990
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AS TO THE ADMISSIBILITY OF
Application No. 14751/89
by P.
against the United Kingdom
The European Commission of Human Rights sitting in private
on 12 December 1990, the following members being present:
MM. S. TRECHSEL, Acting President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. J. RAYMOND, Deputy 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 9 January 1989
by P. against the United Kingdom and registered on 8 March 1989 under
file No. 14751/90;
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 20 February 1990 and the observations in reply submitted
by the applicant on 30 April 1990;
- the submissions made by the parties at the oral hearing on
12 December 1990.
Having deliberated;
Decides as follows:
THE FACTS
The applicants, husband and wife, are British citizens, born in
1933 and 1936. They are represented by Thomas Boyd Whyte, a firm of
solicitors practising in Bexleyheath, Kent. The facts as submitted by
the parties may be summarised as follows.
The applicants are gipsies by blood, though they abandoned
their former nomadic way of life many years previously. They own two
caravans, which since 1972 have been placed at a municipal caravan
site known as Thistlebrook in Greenwich. The applicants had periodic
tenancy agreements with the London Borough of Greenwich (hereafter the
"Council") which had acquired the site by compulsory purchase in 1967.
This area had a history of occupation by gipsy families. In
1967, in pursuance of the powers granted by section 24 of the Caravan
Sites and Control of Development Act 1960, the London Borough of
Greenwich sought a Compulsory Purchase Order in respect of a parcel of
land within their area (occupied by a number of gipsies) as land on
which to provide a site for the accommodation of gipsies. The
Council's case was that although there had been caravans on this piece
of land for some 30 years the conditions were unsatisfactory, and they
intended to create a site with proper facilities. The Compulsory
Purchase Order was confirmed by the Minister on 20 February 1968.
The Council refurbished this piece of land for use as a local
authority gipsy site. This site was opened in three stages between
October 1972 and December 1973 as a site to provide accommodation for
gipsies, in discharge of the Council's duty under section 6 of the
Caravan Sites Act 1968 ("the 1968 Act"). Although the applicants were
not on the site before its acquisition by the Council, they were among
the first to come onto the site after it was opened. The site had 54
pitches, of which some, like that occupied by the applicants,
accommodated more than one caravan.
The Council then applied to the Secretary of State for
designation of their area under section 12 of the 1968 Act. The site
was and is the only official site in the Borough providing
accommodation for gipsies. In May 1974 the Secretary of State for the
Enviroment designated the area by order, on the grounds that adequate
provision had been made in Greenwich for the accommodation of gipsies
residing in or resorting there. The effect of designating the area
was to give the local authority additional powers of removal of any
gipsies camping on unauthorised sites.
The applicants, like the other gipsies on the site, were
seasonal workers who went travelling in their caravans for periods of
the year to find work. They were sometimes away for 4 to 5 months of
the year during which time one caravan was usually left on the site.
The site rules for Thistlebrook, which were incorporated in the
gipsies' agreements with the Council, allowed them to be absent from
the site for up to 20 weeks in one year (or for longer if agreed
in writing with the Council) but still to retain their right to return
to their pitch by paying, for the weeks they were absent, half the
fixed weekly amounts provided for in their agreements. The last
agreement under which the applicants rented a pitch for their caravans
was in writing and dated 16 January 1978.
On 10 October 1986, the Council gave the applicants notice to
quit and in November 1986 commenced proceedings to evict the
applicants from the municipal site. On 3 November 1987, the County
Court granted the Council an order for possession of the site on which
the applicants' caravan stood. The applicants had been given no
reasons in writing by the Council for the decision to evict them.
During the proceedings in the County Court, the applicants' counsel
asked for the reasons for the eviction , but the Council refused to
answer on the ground that this was irrelevant.
The applicants appealed to the Court of Appeal which on
23 February 1988, allowed their appeal and set aside the possession
order. The Council appealed to the House of Lords, which on 8
December 1988 found in its favour.
The main issue before the Courts was whether the caravan site
at Thistlebrook was "a protected site" within the meaning of section
5(1) of the Mobile Homes Act 1983, in which case the applicants'
tenancy would attract statutory protection and could not be terminated
except for the specific reasons set out in the Act. A "protected
site" however is defined by the Act as excluding any land occupied by
a local authority as a caravan site providing accommodation for
gipsies.
0n 8 December 1988, the House of Lords found that the
municipal site had been opened in 1972 as a site to provide
accommodation for gipsies in discharge of the Council's duty under the
Caravan Sites Act 1968. It found that the site did not become a
"protected site" for the purposes of the 1983 Act even though many of
the residents had given up their nomadic way of life and established
their permanent residence there.
Following the House of Lords' judgment, the applicants applied
to the Council for alternative accommodation as homeless persons. The
Borough replied by letter dated 31 January 1989 that by their
unsatisfactory conduct on the Thistlebrook site in contravention of
the site rules the applicants had made themselves voluntarily homeless
and that the Borough were as a result relieved of their statutory duty
to provide accommodation.
RELEVANT DOMESTIC LAW AND PRACTICE
Caravan Sites Act 1968
Part I of the 1968 Act introduced for the first time a limited
form of statutory security of tenure for the occupier of a residential
caravan on a "protected site" as defined by section 1 (2), either as
licensee of a pitch on which to station his own caravan or as occupier
of a caravan belonging to the site owner. In each case his
contractual right could only be terminated by four weeks' notice and
he could only be evicted by court order. The court was given power to
suspend enforcement of an eviction order "for such period not
exceeding 12 months from the date of the order as the court thinks
reasonable" and from time to time to extend the period of suspension
for not more that 12 months at a time. This limited protection is
referred to as "the 1968 security of tenure".
The effect of these provisions is that the 1968 security of
tenure is available to all occupiers of residential caravans on local
authority sites as well as on privately owned sites, but not to those
on holiday sites or sites otherwise used for only part of the year.
Part II of the 1968 Act, which came into force on 1 April
1970, attempted to resolve the problem of providing caravan sites to
accommodate the gipsy community and and of controlling unauthorised
gipsy encampments. The expression "gipsies" in section 16 of the 1968
Act means:
"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 in travelling
circuses, travelling together as such."
Section 6 (1) of the 1968 Act (as amended) provides that:
"...it shall be the duty of every local authority being the
council of a county, metropolitan district or London borough
to exercise their powers under section 24 of the Caravan
Sites and Control of Development Act 1960 (provision of
caravan sites) so far as may be necessary to provide adequate
accommodation for gipsies residing in or resorting to
their area."
Once sites have been provided under that section, it is the
duty of the relevant district council to operate them.
Section 9 of the 1968 Act enables the Secretary of State, if
he considers it necessary, to give directions to those local
authorities under a duty to provide gipsy caravan sites requiring them
to provide sites for a specified number of caravans. Any directions
so given are enforceable by an Order of the Court, on the application
of the Secretary of State.
Sections 10, 11 and 12 concern "designated areas". The
Secretary of State may, under section 12, designate the area of a
county, metropolitan district or London Borough, or a district or
group of districts, as an area to which sections 10 and 11 apply. He
may not do that unless it appears to him that adequate accommodation
has been provided for gipsies residing in or resorting to that area,
or that it is not necessary or expedient to make any such provision.
Once the Secretary of State has designated an area under section 12,
it is an offence under section 10 for a gipsy to station his caravan
on any highway, or on any unoccupied land, or on any occupied land
without the consent of the occupier (except in case of illness,
mechanical breakdown or other immediate emergency). Under section 11,
unlawfully stationed caravans may be removed by order of a
magistrates' court.
The Mobile Homes Act 1983
The Mobile Homes Act 1983 ("the 1983 Act") does not apply to
gipsy caravan sites provided by local authorities. Section 5 (1)
provides that "protected site" does not include any land occupied by a
local authority as a caravan site providing accommodation for gipsies.
The Act in respect of protected sites gives certain rights to the
occupiers of mobile homes situated on those sites. These include
rights to security of tenure, to transfer the tenancy, and to a
written record of the terms of the agreement. However, the owner is
entitled to terminate the agreement forthwith if he satisfies the
court that the occupier is not occupying the mobile home as his only
or main residence.
The House of Lords held in its judgment on the appeal by the
Council in the applicants' case that sites provided for gipsies under
the 1968 Act were not protected sites within the 1983 Act,
notwithstanding that the gipsies on those sites might have stayed for
long periods. Lord Bridge said:
"Any other construction of 'protected site' in section 5 (1)
of the 1983 Act would, it seems to me, cause great
difficulties both for local authorities and for most of the
gipsy community and would undo much of the good work which
has been done in this difficult field. Those already
established on sites like Thistlebrook would, of course,
enjoy full 1983 security of tenure. But local authorities
in the position of the council would need to start
de novo to discharge their duty under section 6 of the
1968 Act... For the future, local authorities establishing
new sites providing accommodation for gipsies would have to
be vigilant to prevent their residence acquiring any degree
of permanency. This, I think, they could in practice only
do by applying a short rule-of-thumb limit of stay, which
would be quite contrary to the interests of the gipsy
community." /1989/ 1 All ER 65, 71.
COMPLAINTS
The applicants complain of a lack of respect for their family
life and home contrary to Article 8 of the Convention. They complain
that they have been denied protection from arbitrary eviction. They
submit that they have been discriminated against contrary to Article
14 of the Convention, since other persons engaged in seasonal work or
work requiring long absences (seamen, salesmen, agricultural workers)
who are not classified as "gipsies" will be protected from arbitrary
eviction and enjoy statutory protection in the occupation of their
homes.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 January 1989 and
registered on 8 March 1989.
On 5 September 1989, the Commission decided to bring the
application to the notice of the respondent Government and invite them
to submit observations on its admissibility and merits.
The respondent Government's observations were received on 20
February 1990 after three extensions in the time limit. The
applicants' observations in reply were received on 30 April 1990.
On 16 March 1990, the Commission granted legal aid to the
applicants.
On 7 September 1990, the Commission decided to hold an oral
hearing on the admissibility and merits of the application.
At the hearing, which was held on 12 December 1990, the parties
were represented as follows:
- for the respondent Government: Mrs. A. Glover, Agent
Mr. J. Harper, Counsel
Mrs. S. J. Weinberg, Adviser
Mr. C. Harkness, Adviser
- for the applicants: Mr. David Wade, Counsel
THE LAW
The applicants complain of interference with their right to
respect for their family life and their home contrary to Article 8
(Art. 8) of the Convention as a result of their eviction from the
municipal site by the Council. They also complain of discrimination
contrary to Article 14 (Art. 14) of the Convention and of having no
effective access to court contrary to Article 6 (Art. 6) of the
Convention.
Article 26 (Art. 26) of the Convention
The Government have submitted that the applicants have failed
to exhaust domestic remedies in respect of their complaints since they
have not challenged the reasonableness of their eviction by way of
judicial review or by raising the same points in defence in the
possession proceedings.
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 a remedy, do not in reality offer any chance of
redressing the alleged breach (cf. No. 9248/82, Dec. 10.10.83, D.R. 34
p. 78).
It is furthermore established that the burden of proving the
existence of the 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, Commission
decision No. 9013/80, Dec. 11.12.82, D.R. 30 p. 96, p. 102).
The Commission recalls that the applicants' complaints are
directed against the difference between the regime applying to the
municipal gipsy site where they lived and that applying to other
residential mobile home sites. The Commission also recalls that
during the proceedings in the County Court the applicants' counsel
asked for the reasons for their eviction and the Council refused to
provide the information on the ground that it was irrelevant. In
these circumstances, the Commission is not satisfied that the
applicants would have been able to challenge the Council's decision to
evict on the merits or that the proceedings would have constituted an
effective remedy for their complaints. The Commission is accordingly
unable to accept that the application should be declared inadmissible
for non-exhaustion of domestic remedies.
Article 8 (Art. 8) of the Convention
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 Commission recalls that the applicants complain of their
eviction from the site on which they had lived for 16 years. Under
the terms of their tenancy agreement, the agreement could be
terminated by either side at one month's notice. They complain that
the Council did not give reasons for the eviction until after the
event and that their occupation was not protected under the Mobile
Homes Act 1983 (the 1983 Act). While the Government admit that the
eviction constituted an interference with the applicants' right to
respect for their home, they submit that the interference was in
accordance with law and, in view of the conduct of the applicants,
pursued the aim inter alia of protecting the rights of others on the
site.
The Commission has considered whether the termination of the
applicants' occupation of the site in accordance with the tenancy
agreement can be considered as an interference with their rights under
Article 8 para. 1 (Art. 8-1) of the Convention. Even assuming that it
could constitute an interference, however, the Commission finds that
it would be justified under Article 8 para. 2 (Art. 8-2) of the
Convention for the reasons set out below.
Pursuant to Article 8 para. 2 (Art. 8-2), an interference is
justified if it is "in accordance with the law", pursues one or more
of the legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and
is "necessary in a democratic society" for one or more of those aims.
The Commission notes that the applicants challenged their
eviction in the United Kingdom courts. The House of Lords found that
the Council were entitled to obtain an order for possession. The
applicants do not allege that the eviction was unlawful and in the
circumstances of this case, the Commission finds that the alleged
interference was "in accordance with the law". While the Commission
notes that the Council considered the eviction of the applicants
necessary in light of problems arising out of the applicants' conduct
in infringement of the site rules, it finds it unnecessary to deal
with this aspect of the case, since in any event the interference
pursued the legitimate aim of the protection of the rights and
freedoms of others in that it enforced the Council's rights under the
tenancy agreement.
The question remains whether the decision was "necessary"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
The case-law of the Commission and the Court establishes that the notion
of necessity implies that the interference corresponds to a pressing
social need and that it is proportionate to the aim pursued. Further,
in determining whether an interference is necessary the Commission and
the Court will take into account that a margin of appreciation is left
to the Contracting States, which are in principle in a better position
to make an initial assessment of the necessity of a given interference
(c.g. Eur. Court H.R., Leander judgment of 26 March 1987, Series A
no. 116, p. 25, paras. 55-59).
The applicants submit that their eviction was arbitrary since
the Council were not obliged to give reasons and that their occupation
was unreasonably excluded from the protection of the 1983 Act, which
requires, inter alia, the owner of a site to establish that the tenant
has failed to observe the terms of the tenancy agreement and has not
complied with a notice to remedy the breach in question. The
Commission recalls, however, that the applicants occupied the site
under a tenancy agreement and that their occupation was terminated in
accordance with this agreement. Under this agreement the Council were
not under a duty to give reasons for terminating the agreement. As
regards the applicants' complaints that different rules apply to other
sites, the Commission has had regard to the fact that under the 1968
Act local authorities are under a duty to provide sites for gipsies
and that these sites are run on the basis that the tenants may leave
for long periods during the year. However, these sites are excluded
from the protection of the 1983 Act. The Commission further notes the
Government's submission that local authorities are under no duty to
provide sites for mobile home dwellers who do not fall within the
scope of section 16 of the 1968 Act and that gipsies who wish to enjoy
the protection of the 1983 Act are at liberty to live on other sites.
The Commission considers that the applicants cannot derive
from Article 8 (Art. 8) of the Convention an unconditional right to
remain on the Thistlebrook site. In view of the above and having
regard to the margin of appreciation enjoyed by the Contracting
States in regulating housing problems of the kind at issue here, the
Commission considers that the principle of proportionality has not
been offended.
The Commission concludes that the alleged interference is
justified as necessary in a democratic society for the protection of
the rights and freedoms of others. It follows that this part of the
application is 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 applicants complain that they are subject to discrimination
as gipsies since they were excluded from the protection of the 1983 Act.
Article 14 (Art. 14) of the Convention provides that:
"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 applicants submit that other persons pursuing a nomadic
way of life e.g. seasonal workers are not excluded from the protection
of the 1983 Act and they contend there is no reasonable or objective
justification for this difference in treatment.
The Commission recalls, however, that the different rules
applying with regard to occupation of caravan sites depends on the
classification of the site and not on the status of the individual
caravan-dweller. Sites occupied by local authorities for the purpose
of providing accommodation for gipsies - "protected sites" - are
excluded from the operation of the 1983 Act, which applies to other
residential sites. Gipsies, however, who were to reside on such
residential sites equally enjoy the protection of that Act. The
Commission therefore finds no indication that the applicants have
suffered a difference in treatment on the ground of association with a
national minority or other status personal to them.
The Commission consequently finds no appearance of a violation
of Article 14 (Art. 14) of the Convention in the circumstances of this
case. It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Article 6 (Art. 6) of the Convention
The applicants also complain that they have had no effective
access to court as required by Article 6 (Art. 6) of the Convention in
respect of their complaints since the courts found that they fell
outside the scope of the protection offered by the 1983 Act.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of this provision, as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ...
within a period of six months from the date on which the final
decision was taken".
In the present case the decision of the House of Lords
which was the final decision regarding the subject of this particular
complaint, was given on 8 December 1988, whereas this complaint was
first raised before the Commission in the observations of the
applicants submitted on 30 April 1990, that is, more than six months
after the date of this decision. Furthermore, an examination of the
case does not disclose the existence of any special circumstances
which might have interrupted or suspended the running of that period.
It follows that this part of the application has been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THIS APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)