CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 mai 1993

.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. 18401/91                       by Ruby SMITH                       against the United Kingdom             The European Commission of Human Rights sitting in private on 6 May 1993, the following members being present:                MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  G. SPERDUTI                  E. BUSUTTIL                  G. JÖRUNDSSON                  J.-C. SOYER            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI              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 15 May 1991 by Ruby Smith against the United Kingdom and registered on 24 June 1991 under file No. 18401/91;         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 8 July       1992 and the observations in reply submitted by the applicant on       16 October 1992;   -      the oral submissions of the parties at the hearing of 6 May 1993;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a British citizen born in 1962.   She is represented by Mr. Luke Clements of Thorpes, a firm of solicitors practising in Hereford.         The facts, as submitted by the parties and as are apparent from the case-file, may be summarised as follows:         The applicant is a gipsy and is by tradition and cultural preference a caravan dweller.   The applicant is illiterate.   Since 14 August 1984 she has resided at Plot 13 Kempston, Hardwick Caravan Site, Kempston near Bedford ("the Kempston site").   This site is in the district of North Bedfordshire in the County of Bedfordshire.   It was constructed to provide accommodation for gipsies.   The applicant has been resident within the County of Bedfordshire throughout her life. The applicant's father and one of her sisters also reside at this site, in separate caravans.         On 12 January 1988 the Secretary of State for the Environment, acting under Section 12 of the Caravan Sites Act 1968, designated the district of North Bedfordshire as an area to which Section 10 of the said Act applies. Under Section 10 of the Act it is an offence for a gipsy to station a caravan elsewhere in the area outside official or private sites (see Relevant Domestic Law and Practice). All four districts within the County of Bedfordshire have now been designated for the purposes of the 1968 Act.         Many of the districts within counties surrounding Bedfordshire have also been designated for the purposes of the 1968 Act.         On 17 January 1991 the Bedfordshire County Council ("the Council")sought against the applicant an order for summary possession of the applicant's plot.         On 7 February 1991 the County Court adjourned the   application for summary possession to enable the applicant to apply for judicial review.   On 15 March 1991 the applicant was granted leave to apply for judicial review of the Council's decision to evict her from the Kempston site. In her application, the applicant claims, inter alia, that the Council has failed to fulfil its statutory duties to provide adequate or a sufficient number of gipsy sites in the area or adequately to maintain those sites in existence. For example,in or about May 1990, the Fairhill site, which had provided about 20 plots for caravans, had been closed by the Borough Council and the Council has served notices to quit on half the residents of the Kempston site. The applicant alleges there are now an insufficient number of places to meet the demand.         On 25 June 1992, the applicant settled the judicial review proceedings on the basis that she be allowed to stay on the site, that the site be refurbished and that allegations about her bad character be withdrawn.     RELEVANT DOMESTIC LAW AND PRACTICE         Section 16 of the Caravan Sites Act 1968 (the 1968 Act) defines "gipsies" as:         "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 on travelling circuses, travelling       together as such."         Section 6 of the 1968 Act provides that it shall be the duty of local authorities:         "... to exercise their powers...so far as may be necessary to       provide adequate accommodation for gipsies residing in or       resorting to their area."     The designation system         Pursuant to Section 12 of the 1968 Act, where the Secretary of State is satisfied that the duty imposed by Section 6 has been carried out, he may designate the area of that local authority as one to which Section 10 applies.         Section 10 of the 1968 Act provides :         "Prohibition of unauthorised camping in designated areas         (1) In any area designated under the following provisions of this       Act as an area to which this section applies it shall be an       offence for any person being a gipsy to station a caravan for the       purpose of residing for any period -              (a)    on any land situated within the boundaries of a                  highway; or            (b)    on any other unoccupied land; or            (c)    on any occupied land without the consent of the                  occupier.         (2) In proceedings against any person for an offence under this       section it shall be a defence to prove that the caravan was       stationed on the land in consequence of illness, mechanical       breakdown or other immediate emergency and that he removed it (or       intended to remove it) as soon as reasonably practicable.         (3) A person guilty of an offence under this section shall be       liable on summary conviction to a fine not exceeding [level 1 on       the standard scale]; and if the offence of which he is convicted       is continued after the conviction he shall be guilty of a further       offence and shall be liable in respect thereof to a fine not       exceeding £5 for every day on which the offence is so continued."         Section 11 of the Act provides:         "Orders for removal of unlawfully parked caravans and their       occupants         (1) In any area to which section 10 of this Act applies, a       magistrates' court may, on a complaint made by a local authority,       and if satisfied that a caravan is stationed on land within the       authority's area in contravention of that section, make an order       requiring any caravan (whether or not identified in the order)       which is so stationed on the land to be removed together with any       person residing in it.         (2) An order under this section may authorise the local authority       to take such steps as are reasonably necessary to ensure that the       order os complied with and in particular, may authorise the       authority, by its officers and servants -              (a)    to enter upon the land specified in the order; and            (b)    to take, in relation to any caravan to be removed                  pursuant to the order, such steps for securing entry                  and rendering it suitable for removal as may be so                  specified ..."     COMPLAINTS   1.     The applicant submits that, as a member of a minority, her right to respect for her private and family life and home guaranteed under Article 8 of the Convention is being interfered with due to the legislative framework in place in the United Kingdom.   She submits that she is a gipsy and therefore is accustomed to and chooses a nomadic lifestyle, and rejects permanent living accommodation and a conventional stationary existence.   She claims that the designation system interferes with her nomadic lifestyle in effect by "criminalising" it.   2.     The applicant further complains that designation impedes freedom of association between herself and other gipsies.   She invokes Article 11 of the Convention.   3.     The applicant submits that her rights under Article 14 of the Convention are violated in that the designation powers under Section 10 and 11 of the 1968 Act only apply to gipsies as defined in the 1968 Act i.e. making it an offence for gipsies to station their caravans anywhere else and giving powers to order the removal of their caravans.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 15 May 1991 and registered on 24 June 1991.         On 1 April 1992, the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits.         The Government's observations were submitted on 8 July 1992 after an extension of the time-limit and the applicant's observations were submitted on 16 October 1992 also after an extension of the time-limit.         The Commission decided on 8 September 1992 to grant legal aid to the applicant.       By letter dated 2 November 1992, the applicant's representative informed the Commission that pursuant to settlement of the judicial review proceedings, she withdrew her complaints under Articles 5, 6 and 13 of the Convention and Articles 1 and 2 of Protocol No. 1.         On 11 December 1992, the Commission decided to hold an oral hearing on the admissibility and merits of the remaining complaints.         At the oral hearing which was held on 6 May 1993, the parties were represented as follows:   For the Government:   Mrs. A. GlOVER                    Agent Mr. David PANNICK, QC             Counsel   Advisers: Mr. David RUSSELL                 Department of Environment Ms. Virginia HARRISON             Department of Environment Mr. Charles HARKNESS              Department of Environment     For the applicant:   Mr. Peter DUFFY                   Counsel Mr. Luke CLEMENTS                 Solicitor Ms. Clare BLANCHARD               pupil barrister       THE LAW         The applicant complains that, as a member of the nomadic gipsy minority, her rights under Articles 8, 11 and 14 (Art. 8, 11, 14) of the Convention are violated by legislation restricting camping and caravan sites.   Article 26 (Art. 26) of the Convention         The Government submit that the applicant has failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention since she has not proceeded with her application for judicial review to challenge any failure of the local authority to comply with their statutory duties.   Nor has she instituted judicial review proceedings to challenge the designation by the Secretary of State of the district in Bedfordshire where the applicant resides as a prohibited area for gipsy caravans, or any failure of his to revoke such designation.         The applicant has stated that judicial review would not provide an effective method of challenging the content of the relevant legislation.         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 remedies, 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).         It is furthermore established that 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).         The Commission recalls that judicial review proceedings provide only a limited means of challenging a decision. They may be used to seek a remedy against the decision of a public authority on the grounds of illegality, irrationality or procedural impropriety, but cannot impugn the merits of a decision. They cannot be used to challenge the propriety of the legislation itself which is the essence of the applicant's case.         In these circumstances, the Commission finds that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.   Article 8 (Art. 8) of the Convention         The applicant complains that the designation system violates her right to respect for her private and family life and home.         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 Government however submit that the applicant cannot claim to be a victim of any interference with the rights enjoyed under Article 8 para. 1 (Art. 8-1). They refer to the fact that the applicant has lived on the present site provided by the local authority for the previous six years and successfully resisted proceedings to evict her. The Government explain further that gipsies have no right to camp on "common land" because they have no title to the land, and that no-one has any right to camp by the side of highways, in verges or lay-bys or on land belonging to others without the owner's consent. Consequently, the prohibition in force against gipsies under the designation system cannot be said to be an interference with rights under Article 8 (Art. 8).         The applicant submits that she is a "victim". She points out that she is a member of a minority which is subject to criminal sanctions, that she cannot continue her nomadic way of life without the risk of prosecution and that, as in the Dudgeon and Norris cases (Eur. Court H.R., Dudgeon judgment of 22 October 1981, Series A no. 45, and Norris judgment of 26 October 1988, Series A no. 142), the existence of legislation criminalising the conduct of a minority is sufficient, without the need to show the sanction has been or will be imposed on the applicant herself.         The Commission recalls that Article 25 (Art. 25) of the Convention provides that the Commission may only receive petitions from persons, non-governmental organisations or groups of individuals "claiming to be a victim "of a violation by one of the High Contracting Parties" of the rights contained in the Convention. This requires that an applicant must be able to claim to be actually affected by the measure of which she complains. The Commission may not entertain actions in the nature of an actio popularis nor claims in abstracto that a law contravenes the provisions of the Convention (see eg Eur. Court H.R., Klass and Others judgment of 6 September 1978, Series A no. 28, p. 17-18, para. 33).         In the present case, the applicant has not indicated that she in fact wishes to live or move somewhere else or that section 10 of the Caravan Sites Act 1968 is being applied in such a way so as to prevent her achieving that object. Insofar as her complaint is that as a gipsy she cannot station her caravan in order to reside wherever she might wish,   it fails to disclose any real or immediate effect on her exercise of any rights guaranteed under Article 8 (Art. 8) of the Convention. While in the Norris and Dudgeon cases (loc. cit.) the mere existence of the legislation was sufficient to render the applicants victims, the Commission would note that this conclusion was based on considerations of the direct and continuous effect of the existence of criminal sanctions on the persons affected; for example, the increase in anxiety and guilt feelings which could lead on occasion to depression and the serious consequences which can follow from that. Also the criminal sanction in those cases infringed one of the most personal and intimate aspects of private life. The Commission has held that the traditional lifestyle of a minority may, in principle, attract the guarantees of Article 8 (Art. 8) of the Convention (see eg. Nos. 9278/81 and 9415/81, Dec. 3.10.83, D.R. 35 p.30). However   an individual applicant who is member of a minority must establish that the measure complained of has a real and direct effect on his or her pursuit of that lifestyle.   The Commission finds on the facts of the present case that the applicant has failed to do so.         Consequently, the Commission concludes that the applicant cannot be regarded as a "victim" of any interference with the rights guaranteed under Article 8 (Art. 8) of the Convention. It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   Article 11 (Art. 11) of the Convention         The applicant has also complained that the designation system violates her right to freedom of association under Article 11 (Art. 11) of the Convention. This provides:         "1. Everyone has the right to freedom of peaceful assembly       and to freedom of association with others, including the       right to form and to join trade unions for the protection       of his interests.         2. No restrictions shall be placed on the exercise of these       rights other than such as are prescribed by law and are       necessary in a democratic society in the interests of       national security or public safety, 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.       This Article shall not prevent the imposition of lawful       restrictions on the exercise of these rights by members of       the armed forces, of the police or of the administration of       the State."         The Commission recalls that the applicant has not made specific complaint of being unable to attend any particular gathering, nor substantiated in what way the designation system has operated to prevent her associating with other gipsies.         The Commission refers to its findings above under Article 8 (Art. 8) of the Convention. It concludes in light of these considerations that the applicant has also not established that she has the character of a "victim" under Article 11 (Art. 11) of the Convention. It follows that this complaint must also be dismissed as 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 applicant complains that the designation system, which imposes a criminal sanction on gipsies alone, constitutes discrimination contrary to Article 14 of the Convention in conjunction with Article 8 and/or Article 11 (Art. 14+8+11).         Article 14 (Art. 14) of the Convention provides:         "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 Commission notes, however, that the above provision is restricted to discrimination in the enjoyment of the rights and freedoms guaranteed under the Convention. Since the Commission has found above that the applicant has not established that she is a "victim" of an interference with any of the rights guaranteed under Articles 8 or 11 (Art. 8, 11) of the Convention, this complaint fails to fall within the scope of Article 14 (Art. 14) of the Convention.         It follows that this complaint is incompatible rationae materiae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2).         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission         (H.C. KRÜGER)                              (C.A. NØRGAARD)