THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39641/98 by Brian LOVERIDGE against the United Kingdom

The European Court of Human Rights, sitting on 23 October 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mr T.L. . Early , Deputy Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 29 October 1997 and registered on 3 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Brian Loveridge, is a British national, born in 1938 and living in Aberdare, South Wales. He is represented before the Court by Steel and Shamash , solicitors practising in London. The respondent Government are represented by Mr C. Whomersley, Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant stood as a candidate in a local authority by-election on 23 November 1995.

On 17 November 1995 he voluntarily took part in an interview filmed by the British Broadcasting Corporation (“BBC”) on the subject of a controversial waste tip which fell within the “relevant electoral area” for the purposes of section 93 of the Representation of the People Act 1983 (“the 1983 Act”: see below).

On 22 November 1995 the BBC broadcast, both on television and radio, extracts from the interview with the applicant. The journalist who had recorded the interview was unaware of the pending election, and neither the by-election, the applicant’s candidacy nor his party affiliation were mentioned in the broadcasts.

Both the interview and the broadcasts took place after the latest time for delivery of nomination papers and without the consent of the other validly nominated candidate (see section 93 of the 1983 Act, below).

The poll and the count took place on 23 November 1995. The applicant was elected by a majority of one vote.

On 7 June 1996 the Commissioner of the Election Court determined that it had been proven, beyond reasonable doubt, that the applicant consented to the broadcast, and that one of his reasons for taking part in it was to promote his election. Accordingly, under section 93(1)(b) of the 1983 Act the election was void. As an automatic consequence of this decision, the applicant lost the right to vote and to be a member of the local authority for five years (section 160 of the 1983 Act).

On 14 January 1997, the High Court rejected the applicant’s argument that the Commissioner had been wrong to decide that the interview had been consensual, and refused leave to apply for judicial review against the Commissioner’s decision.

After a hearing on 14 April 1997, the Court of Appeal refused on 24 April 1997 a renewed application for leave to apply for judicial review. The order, which stated merely that “the renewed application for leave to apply for judicial review be refused”, was sealed on 29 April 1997.

B. Relevant domestic law

Section 93(1) of the Representation of the People Act 1983 provides:

“In relation to a parliamentary or local government election -

(a) pending such an election it shall not be lawful for any item about the constituency or electoral area to be broadcast by (i) the British Broadcasting Corporation ...  or (ii) included in any service licensed under Part 1 or 3 of the Broadcasting Act 1990 if any of the persons who are for the time being candidates of the election takes part in the item and the broadcast is not made with his consent; and

(b) where an item about a constituency or electoral area is so broadcast pending such an election there, then if the broadcast either is made before the latest time for delivery of nomination papers, or is made after that time but without the consent of any candidate remaining validly nominated, any person taking part in the item for the purpose of promoting or procuring his election shall be guilty of an illegal practice, unless the broadcast is so made without his consent.”

COMPLAINT

In his application the applicant complained under Article 10 of the Convention, principally that the restrictions under the 1983 Act placed on election candidates taking part in television and radio broadcasts had breached his right to freedom of expression.

THE LAW

The Government submitted that the application should be declared inadmissible under Article 35 § 1 of the Convention, which provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted ... and within a period of six months from the date on which the final decision was taken.”

They pointed out that the final domestic decision in the applicant’s case was that of the Court of Appeal on 24 April 1997. Although the court’s order was not sealed until 29 April, the applicant must have known about the decision five days earlier, since it was made at an oral hearing on 24 April, where the applicant was represented by counsel. Since his application was not introduced until 29 October 1997, the six months’ time limit had been exceeeded by five days.

The applicant contended that the Court of Appeal’s decision did not become final until it was sealed on 29 April 1997; until that date the court still had power to amend it. His application had therefore been introduced exactly six months from the final decision.

The Court recalls that the first day of the six months’ time-limit is considered to start on the day following the final decision, and that “months” are calculated as calendar months regardless of their actual duration (see the Istituto di Vigilanza v. Italy judgment of 22 September 1993, Series A no. 265-C, § 14; the Figus Milone v. Italy judgment of 22 September 1993, Series A no. 265-D, § 14; and the Goisis v. Italy judgment of 22 September 1993, Series A no. 265-E., p. 51, § 19).

It notes that it was the Commission’s practice to take as the date of the final decision, the day on which the judgment was rendered orally in public, or, where judgment was not publicly pronounced, the day on which the applicant or his representative were informed of it, whichever took place earlier (see, for example, K.C.M. v. the Netherlands, no. 21034/92, decision of 9 January 1995, Decisions and Reports (DR) 80-A, p. 87). Where, pursuant to domestic law and practice, the applicant is entitled to be served ex officio with a written copy of the judgment, time starts to run on the date the judgment is received (see the Worm v. Austria judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, § 33).

The Court is not persuaded that it should depart from the Commission’s practice on this question. There was no obligation under domestic law or practice requiring the Court of Appeal’s judgment to be served on the applicant by the court (cf. the above-mentioned Worm case). The judgment did not involve complex or lengthy reasoning ( ibid ) and the applicant does not contend that he was not aware, on 24 April 1997, of the content of the court’s decision delivered at the oral hearing on that date.

The Court therefore accepts the Government’s objection and rejects the application for non-observance of the six months’ rule, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L . Early J.-P. Costa Deputy Registrar President