Lexploria

The European Commission of Human Rights sitting in private on

18 July 1986, the following members being present:

MM. J.A. FROWEIN, Acting President

F. ERMACORA

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

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

Having regard to Art. 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 August 1985 by

E.F. against the United Kingdom and registered on 22 November 1985

under file No. 11862/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1928, and currently

resident in Wisbech, Cambridgeshire. He is a gypsy.

On 11 August 1985, the applicant saw a poster displayed in a grocer's

shop in Tilney St. Lawrence. The poster concerned the proposal of

the county council to install a permanent gypsy site in the vicinity

and invited people to oppose the proposal. The poster alleged, inter

alia, that gypsies caused smells, left rubbish and attracted rodents

and that local property would drop in value. The applicant noticed

other posters in the area and on enquiring discovered the poster had

been the responsibility of a local property owner.

The applicant complained to the police, who refused to pursue the

matter. He contacted the Commission for Racial Equality who supplied

him with information as to the offence of incitement to racial hatred:

S 5A Public Order Act 1936: no prosecution however can be brought

without the consent of the Attorney-General. The applicant wrote to

the Attorney General but was informed by a letter of 24 October 1985,

that the Solicitor General in consultation with the Director of Public

Prosecutions did not consider the poster infringed the Act and did not

therefore intend to take any action.

The applicant is unable to take any civil action for defamation

against those responsible for the poster, since an action for

defamation does not lie in respect of a member of a defamed class.

COMPLAINTS

The applicant complains that he is unable to take any legal action to

prevent the abusive posters being displayed. He argues that the

posters whip up hatred of gypsies and prejudice them in applying for

caravan sites or council homes. Since the Attorney General will not

take any criminal action and a civil action for defamation will not

lie in respect of a member of a defamed class, the applicant claims he

has no means of seeking redress.

The applicant accordingly invokes Articles 6 and 13 (art. 6,

art. 13).

THE LAW

1. The applicant complains that he has no access to court in

respect of posters which are insulting to gypsies.

a) Article 6 para. 1 (art. 6-1) of the Convention guarantees to

everyone the right of access to a court for the determination of

"civil rights and obligations" or a "criminal charge against him".

However, the right under Article 6 para. 1 (art. 6-1) to have a

criminal charge determined is only a right for the accused and not a

right for the victim of the alleged criminal offence, or for anyone

who makes a charge against another. Accordingly, the applicant has no

right under Article 6 para. 1 (art. 6-1) of the Convention to have

criminal proceedings instituted against the persons responsible for

the posters in question. The Commission refers in this respect to its

constant case law (see e.g. Application No. 7116/75, D.R. 7 p. 91).

It follows that this aspect of the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (art. 27-2).

b) The applicant is also unable to bring civil proceedings in respect

of his complaints. The Commission recalls that while the concept of

"civil rights" has an autonomous meaning under the Convention, the

domestic law remains an important consideration in determining whether

a "civil right" is at stake. Generally speaking Article 6 para. 1

(art. 6-1) of the Convention is not concerned with creating new

substantive rights in the State concerned but at giving procedural

protection to rights which are recognised in domestic law. The

Commission however will not be bound by the classifications imposed by

the domestic legal system and must also have regard to the object and

purpose of the Convention and the national legal systems of the other

Contracting States (Eur. Court H.R., König judgment of 23 April 1977,

Series A no. 27, p. 24 paras. 88-89, Application No. 9840/82,

B. v. the United Kingdom, p. 23 para. 89 and Application No. 10496/83,

R. v. the United Kingdom, p. 25 para. 117).

The Commission recalls that in Application No. 8282/78 (D.R. 21

p. 109) the Church of Scientology in Sweden sought to bring an action

for loss of reputation. The Commission held as follows:

"The Commission notes that national legislation and the Swedish

Supreme Court does not recognise such a 'right' entitling the group to

seek damages in civil proceedings before national courts. Although

the Commission has held on several occasions that the right of an

individual to protect his reputation can be regarded as a 'civil

right' within the meaning of Article 6 para. 1 (art. 6-1), (see e.g.

Application No. 7116/75, D.R. 7 p. 90) it must attach importance to

the characterisation of the right of the group under Swedish law. ...

Accordingly, it does not consider that the right of the group in the

present case to protect its reputation can be considered a 'civil

right' under Article 6 para. 1 (art. 6-1)."

The Commission notes that in the present case English law does not

recognise a right for a member of a defamed class to bring an action

for loss of reputation. It also notes there is no such right

guaranteed under the provisions of the Convention. The Commission

therefore concludes that there is no basis for the subject-matter of

the applicant's complaint to be considered as a "civil right" under

Article 6 para. 1 (art. 6-1).

It follows therefore that this complaint is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (art. 27-2) of the Convention.

2. The applicant also complains that he has no effective remedy

for his complaint.

It is true that Article 13 (art. 13) guarantees that everyone whose

rights and freedoms as set forth in the Convention are violated shall

have an effective remedy before a national authority.

The Commission observes that this provision is only applicable where

an applicant claims the violation of one of the rights and freedoms

listed in the Convention. However, the Commission has already found

that the applicant's complaint under Article 6 (art. 6) falls outside

the scope of the Convention and it has not found any appearance of a

violation of the other rights and freedoms in the Convention. There

is therefore no basis in the present case for the application of

Article 13 (art. 13).

It follows that this complaint is incompatible ratione materiae with

the provisions of the Convention within the meaning of Article 27

para. 2 (art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

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F. v. THE UNITED KINGDOM

F. v. THE UNITED KINGDOM