THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36417/97

by Richard John CARTER

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 29 June 1999 as a Chamber composed of

Mr J.-P. Costa, President ,

Sir Nicolas Bratza ,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mrs H.S. Greve ,

Mr K. Traja , Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 August 1996 by Richard John Carter  against the United Kingdom and registered on 10 June 1997 under file no. 36417/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 20 March 1998 and the observations in reply submitted by the applicant on 19 October 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1943. He is currently living in Yaxley , a village near Peterborough, England.

The applicant is represented in the proceedings before the Court by Hegarty & Co., a firm of solicitors based in Peterborough.

A. Particular circumstances of the case

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

The applicant has served as a retained fireman in Yaxley Fire Brigade in the village of Yaxley for 24 years. On 3 May 1994 he was made Sub-Officer and Station Commander with managerial responsibility for the Yaxley fire station. All the fire-fighters at the Yaxley station work on a retained basis and all live in Yaxley , a community of 2,810 inhabitants. The applicant was at the relevant time employed full-time as a bus driver in Peterborough. Fire service records indicate that the applicant spent, on average, four and a half hours per week at work, including time spent attending fires and other incidents. According to the applicant, he spent considerably more time at the fire station than the hours recorded since as a Sub-Officer he had to attend to a host of other matters relating to the running of the station.

In a letter dated 29 January 1996 addressed to the Cambridgeshire County Fire and Rescue Service a male colleague made a complaint against the applicant accusing him of harassment. The applicant’s colleague was interviewed on 31 January 1996. Certain of the allegations made against the applicant were subsequently confirmed by a leading fireman at the station who was also interviewed. A full disciplinary investigation was conducted into the allegation made against the applicant. On 9 February 1996 the applicant was suspended from duty pending the outcome of the disciplinary proceedings.

Subsequently in a letter dated 15 February 1996 a former female colleague of the applicant complained that the applicant and another member of the fire station had made unsavoury and personal comments of a very explicit sexual nature about her. That complaint also became part of the investigation.

The applicant denied all the accusations made against him.

During his period of suspension the applicant was prohibited from entering any fire service premises without obtaining prior permission and was requested that he should not, at any time, contact or speak to any of his service colleagues. He remained suspended on these terms until 18 February 1998, when the terms of the suspension were varied.

The applicant states that the terms imposed on his suspension placed considerable restrictions on his social and everyday life and prevented him from communicating with his friends and almost went as far as to prevent him from communicating with his family.

By way of illustration of the effects of the restriction, the applicant refers to an incident which occurred on 26 March 1996 while he was present at a local club which counted among its members many of the fire-fighters from the Yaxley Fire Brigade. The applicant states that officers from the fire service entered the premises, noted with whom he was associating and reported back to the fire service. A similar incident occurred shortly afterwards when he was present at the club with his son and wife together with two of his fire service friends and their wives.

The applicant refers to a further incident on 28 June 1996 when he attended the retirement party of a fire officer whom he had known for many years and whose wife was known to his family for some forty-five years. Other fire officers and their families were present. By letter dated 2 July 1996 the fire service cautioned the applicant that any further reports to the effect that he had breached the conditions of his suspension would lead to charges being brought against him under the Fire Service (Discipline) Regulations 1985.

In August 1996 the applicant was informed by the County Fire Officer that he had to request permission to attend his son's wedding because firemen whom his son had known from childhood, and one of whom was his Best Man, were also invited to the wedding. On this occasion a senior officer granted a relaxation of the conditions of the applicant's suspension and permitted him to associate with friends and colleagues from Yaxley Fire Brigade on the day of the wedding.

After hearing witnesses and the applicant on 2 and 3 August 1996, the disciplinary tribunal found each of the charges proven and the disciplinary action taken against him justified. He was sentenced to a reduction in rank to fire-fighter. He appealed to the Disciplinary Appeal Tribunal which modified the disciplinary sanction to reduction in rank to leading fire-fighter. On 10 March 1997 the applicant submitted notice of his appeal to the Secretary of State. The appeal had not yet been decided at the time of the Court’s consideration of the applicant’s complaints.

In a letter dated 18 February 1998 the County Fire Officer notified the applicant that the terms of his suspension had been varied and that he was henceforth permitted to have contacts with his fellow officers but was not to discuss the circumstances of the disciplinary proceedings until the appeal to the Home Secretary had been determined. The applicant continues not to be permitted to enter fire service premises.

B. Relevant domestic law and practice

The Fire Services (Discipline) Regulations 1985 (Statutory Instrument no. 1985/930) made pursuant to section 17 of the Fire Services Act 1947 provide for the maintenance of discipline in fire brigades and set out a code of discipline and the procedures to be followed for the investigation and the taking of disciplinary action against members of the fire service.

The terms under which a fire officer can be suspended are contained in section VIII of the National Joint Council for Local Authorities’ Fire Brigades Scheme of Conditions of Service (“NJC”). These conditions formed part of the contract between the applicant and Cambridgeshire County Council. Under the relevant provisions of section VIII the County Fire Officer (“the Chief Officer”) may suspend a fire officer who has committed a disciplinary or criminal offence. The period of suspension continues until it is either terminated by the Chief Officer or until disciplinary proceedings have been concluded.

The NJC Terms of Conditions of Service do not deal with the imposition of terms in connection with the suspension of a fire officer.

In December 1995 the fire service published a Fair Treatment Policy setting out procedures to enable employees to raise matters of concern with their superior officers in the service. The Policy implements an outline grievance procedure set out in section X of the NJC terms of service. Under the Policy any grievance is to be pursued in the first instance with the employee’s line manager. If dissatisfied, the employee may then take the matter up with the Manager, then the County Fire Officer and finally with the appropriate committee of the County Council.

COMPLAINTS

The applicant complains that his right to respect for his private and family life under Article 8 of the Convention was violated because he was restricted as regards the persons with whom he could speak and the places he could visit. He asserts that this situation caused him and his family serious hardship and distress. He submits that as he lives in a small village it was difficult for him to go about his daily activities and not meet a colleague from the fire service.

The applicant also complains that the same facts constitute a breach of Article 10 of the Convention in so far as this relates to his right to receive and impart information.

The applicant invokes Article 11 of the Convention in respect of the same matters .

PROCEDURE

The application was introduced on 8 August 1996 and registered on 10 June 1997.

On 3 December 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 20 March 1998. The applicant replied on 19 October 1998.

On 15 September 1998 the Commission granted the applicant legal aid.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1 . The applicant complains that his suspension from the local fire brigade, coupled with restrictions on his access to other local fire-fighters pending the outcome of disciplinary proceedings against him for harassment, violates his rights under Articles 8, 10 and 11 of the Convention.

The Government submit that the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention. Referring to the above description of domestic law and practice, they maintain that the applicant could at any time have requested the County Fire Officer to review the terms of his suspension and if dissatisfied with the response could have asked the appropriate committee of the County Council to consider the matter. However the applicant did not make use of this procedure to the extent commensurate with his complaint, limiting himself to a request to have a relaxation of the terms of his suspension in order to attend his son’s wedding. The Government also draw attention to the fact that the County Fire Officer had informed the applicant that he could if he so wished contact the Safety, Health and Welfare Officer during his suspension for support. He did not avail himself of this facility either.

The applicant replied that on 14 March 1996 he contacted the Fire Service’s Personnel Manager and asked him whether the suspension could be lifted in other ways. He was told that this could not be done. In the applicant’s submission, any further application would have been pointless.

The Court considers that none of the internal remedies relied on by the Government would have proved effective in respect of the applicant’s particular complaint. That complaint was that the impugned term of the suspension should have been lifted on account of its unreasonable and intrusive nature. While it is true that the prohibition on contacting or communicating with colleagues at the fire station may have been relaxed to accommodate certain situations, a request to have the overall prohibition lifted would have had very limited prospects of success having regard to the fact that it was imposed, inter alia , with a view to ensuring that the disciplinary proceedings would not be prejudiced.

For the above reason the Court considers that that the applicant can be considered to have exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention.

2 . The applicant alleges that the terms of his suspension amounted to an interference with his right to respect for his private and family life under Article 8 of the Convention, which provides as relevant:

“1. Everyone has the right to respect for his private and family life...

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 ... public safety ..., for the prevention of disorder or crime ..., or for the protection of the rights and freedoms of others.”

As to the applicability of Article 8

According to the Government, the facts of the case did not disclose any interference with the applicant’s right to respect for his family life. As to the claim that the terms of his suspension interfered with his right to respect for his private life, the Government assert that this complaint essentially concerned an alleged restriction on his social life. They point out that there had been no total severance of ties with those within the applicant’s social circle, only a temporary separation from 17 colleagues with whom he worked on a part-time basis.

The applicant replied that his entire social circle was made up of persons either directly employed at or least associated with the fire station. He affirms that he and his family socialised at least once a week with other fire officers and their families and that his life was inextricably linked to the local fire service.

The Court recalls that respect for private life also comprises to a certain degree the right to establish and develop relationships with other human beings and that it would be too restrictive to limit the notion of “private life” to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not within that circle (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 33, § 29). While noting that the impugned condition by no means excluded “entirely the outside world” or confined the applicant’s enjoyment of personal relationships to an “inner circle”, the Court considers that it is not necessary in the instant case to decide on whether the applicant’s right to respect for his private life is at issue since his complaint is inadmissible on other grounds.

The Court would also observe that the none of the members of the applicant’s family were employed by the Yaxley Fire Brigade. Accordingly, the impugned condition cannot be said to have impinged on his right to respect for his family life.

The Court will accordingly proceed on the assumption that the applicant can rely on Article 8 and that the impugned condition constituted an interference with his enjoyment of his right to respect for his private life. It notes in this connection that the Government have not disputed that there has been an interference should the Court be minded to find that Article 8 may be applicable on the facts of the case.

The Court will examine whether that interference was “in accordance with the law”, had one or more legitimate aims referred to in paragraph 2 of Article 8 and “was necessary in a democratic society” for achieving such aims.

1. “ In accordance with the law”

As to the legal basis for the alleged interference the Government state that the NJC Conditions of Service formed part of the applicant’s contract of service and had been imported into the contract by virtue of the County Fire Officer’s letter of 7 April 1994 to the applicant confirming the latter’s promotion to the rank of Sub-Officer. That letter had referred to the applicant’s conditions of service being supplemented by “this Authority’s regulations, orders and instructions”. As to the terms accompanying the applicant’s suspension from duties pending the outcome of the investigation, the Government further maintain that there was an implied term of the applicant’s contract of employment that his employer could give him reasonable instructions from time to time.

In the applicant’s submission the condition to which he was subjected during his suspension could not be considered an implied term of his contract of employment. Having regard to its wide-ranging nature, it could not fall into the category of “reasonable instructions”.

The Court observes that the County Fire Officer was clearly authorised to suspend a fire officer pursuant to section VIII of the NJC Conditions of Service, which Conditions were drawn up pursuant to the Fire Service (Discipline) Regulations 1985. Although the Conditions of Service do not address the attachment of additional restrictions to a term of suspension, it is to be noted that the County Fire Officer was authorised to give fire officers “instructions”. In the Court’s opinion, a fire officer of the applicant’s seniority and experience in personnel matters must be taken to have foreseen that the County Fire Officer in the exercise of his power of suspension might be called on to instruct a fire officer not to communicate with his colleagues pending the outcome of disciplinary proceedings, all the more so where there was a real possibility that the status of the fire officer concerned might unduly influence his subordinates’ approach to the giving of evidence in those proceedings.

For these reasons, the Court considers that the interference was “in accordance with the law”.

2. Legitimate aim

The Government submit that the County Fire Officer had to bear in mind the safe and efficient running of the fire station, which could be endangered if the applicant remained in contact with his fellow fire officers during his period of suspension. They draw attention to the fact that at the relevant time morale was low at the fire station and loyalties were divided over the decision to take disciplinary proceedings against the applicant. The restrictions imposed on the applicant were thus aimed at protecting public safety and the prevention of disorder or crime as well as the protection of the rights and freedoms of others by ensuring that witnesses were not deterred from giving evidence at the future disciplinary proceedings.

The applicant replied that his colleagues at the fire station were, like him, dedicated to the protection of the public. There was no evidence to suggest that the allegations levelled against him had any implications for the efficient operation of the fire service and its responsiveness to calls from the public. Nor was there anything to indicate that he had tried to bring pressure to bear on any of his colleagues in order to dissuade them from giving evidence at the disciplinary proceedings.

The Court considers, and for the reasons advanced by the Government, that the impugned condition was imposed on the applicant in the interests of protecting public safety and preventing disorder and crime. It cannot overlook in this connection the paramount importance of ensuring internal cohesion and professionalism in the running of a vital public service capable of responding rapidly to the urgency of the demands placed on it. It further notes that the imposition of a condition of the type at issue may also be considered to be aimed at securing the fairness of the disciplinary proceedings and the rights of the applicant’s colleagues to testify freely about the events which gave rise to the accusations against him. While the applicant disputes the legitimacy of these aims, the Court considers that his arguments in this respect fall to be examined under the head of “necessity”.

3. “ Necessary in a democratic society”

The Government contended that the condition accompanying the applicant’s suspension was a proportionate response to a pressing social need. Any contact between the applicant and a colleague was likely to become a matter of general knowledge at the fire station, which may have triggered off heated exchanges among the colleagues at the station, damaging working relationships and discipline and affecting the ability of the station to answer calls from the public. They noted that between the first hearing and the appeal hearing an incident occurred in which two fire-fighters at the station vented their anger at the colleague who had made the allegations against the applicant. Furthermore, contacts between the applicant and colleagues who were to be heard as witnesses in the disciplinary proceedings could also have affected the latter’s willingness to give evidence as planned. As to the proportionality of the impugned restriction on the applicant’s private life, the Government observed that the village was relatively large in population and that the applicant only spent some four and a half hours per week with his colleagues on fire service duties.

The applicant disputed the merits of the Government’s arguments. In his submission the ban on speaking to colleagues had the effect of hindering the preparation of his defence to the charges and placed him at a disadvantage at the hearing since there were colleagues who were willing to support him. He maintained that the incident relied on by the Government to illustrate the fire service’s concern had no relevance to his case. He further stressed that he had to live under the restriction for over two years and its wide-ranging and unreasonable nature infringed his personal life in a draconian and intrusive manner. Moreover, the time which he invested at the fire station was considerably more than that alleged by the Government.

The Court observes that the accusations levelled against the applicant were serious, all the more so since he was at the relevant time the Station Commander with managerial responsibility for the running of the Yaxley fire station. The applicant’s suspension from duty pending the outcome of the disciplinary proceedings against him was in the circumstances entirely justified. It is to be noted that his suspension from duty alone would have restricted his contacts with his colleagues at the fire station. Whether it was “necessary” to attach the impugned condition to his suspension can only be answered in the light of all the circumstances of the case and with due regard to the respondent State’s margin of appreciation in assessing the need for the imposition of the condition and its practical impact on the applicant’s enjoyment of his right to private life.

The Court notes that the applicant’s suspension was a divisive issue within the small team of fire fighters on whom the local community depended. Working relationships were damaged and rival camps emerged in the run up to the disciplinary hearing. In the circumstances, the Court considers that the reasons given by the authorities for prohibiting the applicant from contacting his colleagues either at or outside the fire station were relevant and sufficient having regard to the aims which motivated the prohibition.

As to whether these aims were pursued with minimum impairment of the applicant’s right to respect for his private life, the Court would observe that the applicant was a part-time fire officer. Even supposing that he spent more hours at the fire station than the Government maintain, it is nonetheless the case that his entire life did not centre on his activities there. Nor was his sphere of relationships with others determined solely by his work at the fire station. He had a full time job in a neighbouring town and it may reasonably be concluded that that job also allowed him maximum opportunity for interaction with others both at and outside the place of work. Although the applicant has pointed to a number of incidents in which the impugned condition was a source of embarrassment and intrusiveness, it cannot be said that such incidents occurred with a degree of frequency which could be said to impinge to a disproportionate effect on his right to respect for his private life (see, mutatis mutandis , the Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998 , Reports of Judgments and Decisions 1998-V, pp. 2028-29, § 59).

Although the Court has concluded that the internal complaints procedure did not constitute an effective remedy in respect of the applicant’s specific complaint about the condition imposed on him, it must nevertheless be noted that the procedure provided the applicant with the opportunity to discuss with his authorities the impact of the condition in particular contexts. It is noteworthy that on the one occasion when he did invoke the procedure the prohibition was in fact relaxed. In the Court’s view this consideration must also be weighed in the balance when assessing the proportionality of any restriction which the condition may have had on the applicant’s enjoyment of his right to respect for his private life.

In the opinion of the Court the condition imposed on the applicant was a proportionate response to a pressing social need and one which was well within the authorities’ margin of appreciation in view of the context.

For the above reasons, the Court finds that the applicant’s complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

3 . The applicant also challenged the condition attached to his suspension under Article 10 of the Convention, which provides as relevant:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...”

The Government in their primary submission disputed the applicability of Article 10 to the complaint at issue, contending that the scope of that provision did not extend to social relations between an individual and his work colleagues. They pleaded in the alternative that the matters complained of were more properly addressed within the framework of Article 8 of the Convention, having regard to the fact that the notion of the applicant’s right to social communication lay at the heart of his allegation under this head.

The applicant replied that Article 10 guaranteed him the right to discuss with colleagues the allegations made against him and to prepare in the fullest way possible his answers to these allegations. In his submission there has been an interference with the exercise of that right on account of the condition attached to his suspension.

The Court considers that where an interference is alleged in the communication of information in the circumstances at issue in the instant case, Article 8 is the lex specialis . For that reason it does not propose to examine the applicant’s complaint under this provision.

4 . The applicant further invoked Article 11 of the Convention, which provides as relevant:

“1. Everyone has the right to freedom ... of association with others...”

The applicant stressed that on one occasion two fire officers from the Yaxley fire station had attended his club to observe his conduct. Furthermore, he had been cautioned for having attended a retirement party organised for the benefit of one of his colleagues. In his submission the condition imposed on his suspension had to be considered an unlawful interference with his freedom to associate with others.

The Court observes that the concept of freedom of association is concerned with the right to form or be affiliated to a group or organisation pursuing particular aims. It does not extend to the right to share the company of third parties or to “associate” with them in this sense.

In consequence, the Court considers that this complaint must be rejected under Article 35 §§ 3 and 4 of the Convention as being incompatible ratione materiae with the provisions of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa

Registrar President