CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 14455/88                       by Ruby, John and Tommy SMITH                       against the United Kingdom           The European Commission of Human Rights sitting in private on 4 September 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 14 October 1988 by Ruby, John and Tommy SMITH against the United Kingdom and registered on 8 December 1988 under file No. 14455/88           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to:   -        the Commission's decision of 5 September 1989 to bring         the application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;   -        the observations submitted by the respondent Government on         6 April 1990 and the observations in reply submitted         by the applicant on 9 July 1990.             Having deliberated;           Decides as follows:   THE FACTS           The applicants are gypsies born in 1949, 1947 and 1945 respectively.   They have lived in Hereford all their lives.   They are represented before the Commission by Mr.   L. Clements, solicitor of Messrs Thorpes, Hereford.           The facts of the case may be summarised as follows.           After the entry into force of the Town and Country Planning Act 1947, the Highways Act 1959 and the Caravan Sites and Control of Development Act ("the 1960 Act") it became, in practice, very difficult for gypsies to find accommodation.   At least partly in response to such problems, the Caravan Sites Act 1968 ("the 1968 Act") was passed.   The 1968 Act provides inter alia as follows:   "Section 6   (1) Subject to the provisions of this and the next following section, it shall be the duty of every county council ... 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 gypsies residing in or resorting to their area.   ... Section 9   ... (2) The Minister may, if at any time it appears to him to be necessary so to do, give directions to any [county council] requiring them to provide, pursuant to the said Section 6, such sites or additional sites, for the accommodation of such numbers of caravans, as may be specified in the directions; and any such directions shall be enforceable, on the application of the Minister, by mandamus. ..."           Several studies were subsequently made into the position of gypsies, in particular the Cripps Report (presented to the Minister of Housing and Local Government in December 1976), a report by Mr.   I. McGill of Brighton Polytechnic in 1979/80 and a review on the effectiveness of policy in the area of providing gypsy sites by Professor Wibberly in 1986.   Specific provision was made for gypsies in departmental circular 28/77 of 25 March 1977 to County and District Councils and London Borough Councils; in departmental circular 57/78 of 15 August 1978; in the Local Government, Planning and Land Act 1980 (which provided for 100 per cent grants for the establishment of gypsy caravan sites (since April 1990 any such moneys do not count against other capital expenditure allocations); also in other circulars, for example 8/81.           In 1978, the applicants, with other members of the Hereford Traveller Support Group, petitioned the Secretary of State for the Environment ("the Secretary of State") for the provisions of adequate stopping sites within the area of the former Hereford County Council. The Secretary of State declined to use his powers under the 1968 Act by letter of 2 June 1978.         After various disputes between the applicant and the Hereford and Worcester County Council, in early 1986 the applicants' solicitors instituted judicial review proceedings for declarations that the County Council was in breach of its Section 6 duties and that the Secretary of State had wrongly failed to exercise his Section 9 direction giving powers.   They also requested an order that the County Council acquire specific land for extra pitches, decide on the location and extent of further sites and acquire or appropriate land for such further sites within 24 months.           In a judgment of 28 April 1988 Mr.   Justice Henry found as follows:   "In Hereford and Worcester, the situation is even worse than it is nationwide.   Annual counts show that in January, 1982 75% of all caravans in the country council area were on unauthorised spaces, in January, 1986 that was down to 66%, and in January, 1987 it was 62% - this against the national average of about 33%.   To look at the problem from another angle, as early as 1979 the county council had concluded that four hundred pitches were needed in its area: two hundred and thirty to be provided by the local authority, one hundred by the private sector and seventy transit pitches.   The Department has accepted, and still accepts, that such figure would be adequate provision.   Of the two hundred and thirty that were to be provided by the local authority, to date only seventy-two have been.   Twelve of these were provided as long ago as 1964, another fifteen in March of 1974, a further fifteen in July, 1977, and thirty on 2nd February, 1980.   Additionally to these seventy-two, firm proposals or commitments have been made to a further twenty-nine.   Beyond that there is no certainty where the remainder of the sites will be.   So, eighteen years after the Act came into force, the county council is not even half way to its own target for local authority provision.   In those circumstances it is scarcely surprising that the applicants have obtained legal aid and come to this Court.   ...     ... it should be noted that in 1968 when the Act was passed, public law challenges to local authorities for failure to perform statutory duties were virtually unheard of.   The concept of public law was relatively unfamiliar. Any private law challenge to the actions or inaction of the county council or Secretary of State would have encountered a real obstacle in the House of Lords decision in Pasmore -v- Oswaldtwistle Rural District Council (1898) AC 387."           The judge then found that there could be a breach of the Section 6 duty even though there had been no prior direction under Section 9.           In the context of the test to be applied in determining whether a breach of Section 6 existed, he found: "The manifest intention of Parliament was that there should be sufficient sites to accommodate the whole of the gipsy community within the law:   That is to say at sites properly supervised and properly situated so that as at worst to reduce to a minimum the tensions that have often existed between gipsies and the ordinary house dwelling community, and at best to integrate the gipsies. The need for such a policy is patent.   The social damage caused by there not being sufficient sites to accommodate the nation's gipsies goes beyond the obvious effect of homelessness on the families concerned and on the conscience of the community.   If there are not sufficient sites where gipsies may lawfully stop, then they will be without the law whenever and wherever they do stop.   This will result either in them being harried from place to place, or in them being allowed to remain where they should not lawfully be.   If moved on, they and their children will suffer from society's failure to provide for them, and the effect of forced departures on education and employment opportunities will not only perpetuate the cycle of deprivation, but is likely in itself to foster unlawful and anti-social behaviour in them.   Their plight will or should be an affront to the national conscience.   On the other hand, if allowed to remain as trespassers, not only are the tolerated sites likely to be in the wrong place (gipsy sites are not perceived to be the best of neighbours even when properly sited and supervised), and therefore both objectionable and conspicuous, but the community will be indignant to witness necessary laws not being enforced.   Too selective an approach to law enforcement undermines the rule of law.   Either result points to the urgent necessity to make adequate provision for gipsies.   ...   It follows then that on the bare numerical review of the figures for site provision in each county already set out in this judgment, I must find the county councils of Hereford and Worcester in breach of their duty under Section 6 of the Act."           The judge concluded that eighteen years was long enough for county councils to have complied with their obligations, and that where they had not made adequate provision, there was a breach of the statute.           As to the refusal of the Secretary of State to give a Section 9 direction, the judge summed up as follows:   "Ultimately the questions seem to me to be:   (1) Has the Secretary of State properly appreciated the urgency that the passage of eighteen years has injected into the finding of a solution to this problem?   On the evidence before me, I have to conquer the doubts that the bald outline of the facts arouse in me, and pay regard to the care, attention to detail, and quality of reasoning set out in Mr.   McNulty's [of the Department of the Environment] affidavits.   It indicates a lively appreciation of the problem.   Whatever lack of past political will may have contributed to the present position, in assessing whether it is necessary now to give a direction, Mr.   McNulty is in an infinitely better position than the court to judge the presence of the necessary political will in these counties. Parliament entrusted him with the performance of that duty on behalf of the Secretary of State, and there is nothing in the evidence that would permit me to find that his judgment on this matter could be set aside on the tests indicated. The urgency has been properly appreciated.   (2) Has the Secretary of State properly evaluated the present factual position, and each county's plans for the future?   I have already made the point that he is properly informed.   (A) In Hereford and Worcester, the most up-to-date affidavit is Mr.   McNulty's of 30th September 1987.   He there looks at future plans and concludes:   'As much is being done by the county council at the moment as would be likely to be achieved were a direction to be given by him'.   The situation is being kept under review with quarterly reporting.   The minutes of the meeting of the Members Gipsy Group on 3rd December 1987 do not, in my judgment, invalidate the opinion he formed.   Those minutes show that the minority of four of the nine members are clearly pressing hard for sites and impatient as to delays, but I would take this to be a healthy sign for the future, rather than as showing that it demonstrated such an obvious lack of political will in the majority as to make any decision not to give directions as perverse.           It seems to me that Mr.   McNulty's view is one which it is a view open to him within the boundaries of his discretion, and cannot properly be upset by this court.   ...     ... having to answer the question as to whether the county councils have the necessary political will for this task in these proceedings has vividly demonstrated to me that the Department, doing its job properly, will be infinitely better placed to answer that question than the court can be expected to be.           Having said that, as I have already indicated, I do not believe that Parliament could have envisaged that making adequate provision for gipsies should take this long, and surely the time must have now come when the Department will be intensifying its pressure on the counties nation-wide to demonstrate that this relatively small but serious problem must be solved, and its solution must be given priority."           As to relief, the judge refused to make an order that the Secretary of State should make a Section 9 order, and also refused to make a specific order against the County Council: "Parliament entrusted the Secretary of State with responsibility for deciding first, when to give a direction, and second, when to give additional teeth to that direction by coming to the court for an order of mandamus to enforce it.   That clearly must mitigate strongly against the court, in the exercise of its discretion, short-circuiting the procedure provided by itself issuing a direct mandamus against the county council concerned. Such a course would seem to be, in any case such as the present cases, wrong for the following reasons: (i) It shows the court and the Secretary of State (whose original responsibility Parliament made it) to be at odds as to what is necessary to achieve provision of adequate accommodation for gipsies. (ii) The Secretary of State will almost invariably be in the better position to judge what is necessary and what will work towards that goal.   I am strongly of the view that even in the truly exceptional case it might be right to grant mandatory relief against a county council other than in support of a Section 9 direction, it would be quite wrong for that relief to impose a fixed time limit for the provision of sites, ... because the court is not in a position to know how long it will take the county council, in the proper discretionary exercise of their various statutory duties, to achieve the required target.   Therefore, to make such an order would be for the court to order what might prove impossible, in circumstances where the pressure from such an order might put the county councils in danger of breaking other conflicting legal duties."           Finally, a declaration that the county council was in breach of its obligations under Section 6 was granted.           Shortly after the judgment, counsel advised the solicitors that the applicants had no prospect of obtaining mandatory relief or damages and that nothing would be achieved by an appeal.   On 22 November 1988 this was confirmed by a written opinion in which he stated inter alia:   "I am of the firm opinion that the English courts will not grant gypsies anything more than a declaration against offending county councils ...   It follows that any appeal would be pointless as far as English law is concerned.   As such legal aid would definitely not be available.   I have met the applicants.   They are virtually illiterate having received little education.   They could not possibly conduct a case without legal representation.   Nor could they afford to pay privately for representation in the Court of Appeal."   COMPLAINTS           The applicants allege violations of Articles 3, 8, 13 and 14 of the Convention, and of Articles 1 and 2 of Protocol No. 1.         The applicants submit that gypsies in general and themselves in particular have been forced to move from one unsatisfactory stopping place to another time after time by local and national government, and that the manner in which they have been forced from one location to another amounts to degrading treatment, lack of respect for their private and family lives and their homes and a denial of the right to peaceful enjoyment of their possessions.   As a consequence of such forced moves and the failure to provide sites, gypsy children (including the applicants' children) receive little or no education and grow into illiterate or barely literate adults.   The applicants submit that these denials of human rights would not be tolerated at all if the victims were United Kingdom house-dwellers, and that this constitutes discrimination within the meaning of Article 14 of the Convention.           The applicants state that, notwithstanding a clear statutory duty on county councils and other local authorities, the only remedy they have is to seek a declaration that the local authority is in breach of its duty.   No right to sue for damages exists nor is other compensation available.           The applicants state that since the declaration was made in April 1988, no noticeable effect has been discerned in the local authorities' behaviour; the County Council of Hereford and Worcester had a declaration of a breach of Section 6 made against it and thereafter made less progress in the provision of gypsy sites than it had stated it would make before the declaration was granted.   The consequence of this is that no effective remedy before a national authority exists for gypsies such as the applicants who take legal proceedings which result in a clear judicial decision that a law meant for their benefit and the benefit of their families has been disobeyed to a substantial extent for many years.       PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 14 October 1988 and registered on 8 December 1988.   On 5 September 1989 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits.   The respondent Government submitted their observations on 6 April 1990 after an extension of the time limit to 12 January 1990 and the applicants submitted their observations in reply on 9 July 1990 after an extension of the time limit to 13 July 1990.   THE LAW   1.       The applicants complain that they are unable to find satisfactory lawful stopping places.   The Commission has examined this complaint under Article 8 (Art. 8) of the Convention, which provides as follows:   "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 consider first, that the applicants have failed to exhaust domestic remedies in that they did not appeal against the part of the judgment of Mr.   Justice Henry of 28 April 1988 which refused them the relief they sought beyond a declaration. Secondly, the Government consider that the applicants' complaints do not come within the scope of Article 8 (Art. 8) of the Convention because the complaints in respect of their homes are tantamount to a claim to a right to a home or to housing.   They contrast the provisions of the Convention and in particular Article 8 (Art. 8) with Article 16 of the European Social Charter and Article 11 of the International Covenant on Economic, Social and Cultural Rights, which make clear and express provision for a right to housing.           As to the question of domestic remedies, the applicants point out that, although the Government indicate the scope of the powers of the Court of Appeal on appeal from the High Court, they do not indicate any possible grounds of appeal.   The applicants consider that this is because there were none.   As to the merits of the Article 8 (Art. 8) issues, the applicants consider that their homes are their caravans, and that if the local authority had obeyed the domestic laws, respect would have been shown for their homes.           Concerning exhaustion of domestic remedies, 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 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. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).           The Commission recalls that in the present case, shortly after Mr.   Justice Henry gave his judgment on 28 April 1988, counsel for the applicants expressed his opinion to the applicants' solicitors that the applicants had no prospect of obtaining mandatory relief or damages and that nothing could be achieved by an appeal.   This oral opinion was confirmed, in the course of the Commission's proceedings, by an opinion of 22 November 1988.   It is true that the applicants did not apply for legal aid for an appeal, but given that the barrister involved in the case at first instance had concluded that there was no prospect of a successful appeal, and that the same barrister may have been called on to give an opinion if legal aid had been applied for, the Commission finds that the failure to apply for legal aid is not conclusive for the question whether the applicants have exhausted remedies.           The Government further consider that the written opinion eventually proferred was wrong and that the Court of Appeal could have granted mandatory or other further relief against the local authority or the Secretary of State.   However, the Commission notes, as the applicants point out, that the Government do not indicate any specific grounds on which the applicants could have relied on appeal.   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), and an indication of the existence of a superior jurisdiction is not sufficient to establish the existence of a remedy complying with Article 26 (Art. 26):   the State invoking the rule must show that the remedy relied on is available and sufficient.   In the absence of any indication that there is a possible ground of appeal, the Commission is unable to accept that the application should be declared inadmissible for non-exhaustion of domestic remedies.           The Commission recalls that the traditional way of life of a minority can, in principle, attract the guarantees of Article 8 (Art. 8) of the Convention (cf.   Nos. 9281/81 and 9415/81, Dec. 3.10.83, D.R. 25 p. 30).   The Commission also notes that since 1948, in particular, a series of Acts of Parliament and other developments have made life progressively more difficult for gypsies.   In recognition of this fact, Part II of the Caravan Sites Act 1968, which entered into force on 1 April 1970, inter alia imposes a duty on local authorities to make adequate provisions for gypsies in their area. The Secretary of State is given various powers to ensure and coerce local authorities in their duties; in particular by "designation" of areas which have made adequate provisions (thereby giving local authorities certain additional powers) and by giving "directions" to local authority requiring them to provide sites.   The present case does not concern a designated area, and Mr.   Justice Henry found (a) that adequate provision had not been made for gypsies in Hereford and Worcester, (b) that the Secretary of State could refuse to give a direction and (c) that he (the judge) would not substitute his view for that of the Secretary of State.           The question for the Commission is, accordingly, whether the legislation and enforcement mechanisms referred to above, secure the applicants' rights to respect for their private and family lives and homes.           In this regard, the Commission notes first that it is the function of Article 13 (Art. 13) of the Convention, and not Article 8 (Art. 8), to guarantee remedies in respect of alleged violations of the Convention. Moreover, the Convention does not as such create new procedural rights. Accordingly the absence of a remedy cannot of itself constitute a violation of Article 8 (Art. 8).           The Commission next recalls the finding of Mr.   Justice Henry that the Secretary of State had been alive to the problems facing both the applicants and the local authority, that the Secretary of State was better placed than he (the judge) to assess the political climate in the county and that the factual position had been fully evaluated.           The Commission recalls that Article 8 (Art. 8) of the Convention does not contain an express right to living accommodation. Moreover, although Article 8 (Art. 8) may require positive action from Contracting States in certain circumstances, it is inevitable that when questions of policy and implementation arise, a considerable discretion must be left to them.   The Commission finds that, in the present case, questions relating to the immediate provision of gypsy sites in Hereford and Worcester were broadly canvassed by the Secretary of State and by the Court, and there is no indication that the authorities acted in such a way as not to respect the applicants' right under Article 8 (Art. 8) of the Convention.           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.   2.       The applicants also allege a violation of Article 13 (Art. 13) of the Convention in connection with the complaints under Article 8 (Art. 8).           The Commission has just declared inadmissible the applicants' complaints under Article 8 (Art. 8) of the Convention.   It finds that they were not "arguable" within the meaning of the case-law of the European Court of Human Rights (see, for example, Powell and Rayner judgment of 21 February 1990, Series A No. 172, p. 14, para. 31 with further references).           Accordingly, this complaint must also be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicants also allege violations of Articles 3 and 14 of (Art. 3, 14) the Convention and Articles 1 and 2 of Protocol No. 1 (P1-1, P1-2).           The Commission has considered these complaints in the light of the material submitted by the applicants.   However, insofar as these matters are within the Commission's competence and to the extent that the allegations have been substantiated, the Commission finds that they do not disclose any appearance of a violation of the rights and freedoms referred to.           This part of the application must therefore be rejected in accordance of Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.           Accordingly, the Commission, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission       President of the Commission                (H.C. KRÜGER)                     (C.A. NØRGAARD)