CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1994

.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. 23442/94                       by Carol and Walter SMITH                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 12 October 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 28 October 1993 by Carol and Walter SMITH against the United Kingdom and registered on 11 February 1994 under file No. 23442/94 ;         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       12 May 1994 and the observations in reply submitted by the       applicant on 5 August 1994;         Having deliberated;         Decides as follows:   THE FACTS   1.     Particular circumstances of the case         The applicants are British citizens born in 1959 and 1971 respectively and resident in Willingham. They are represented before the Commission by Mr. Luke Clements, a solicitor practising in Hereford. The facts as submitted by the parties may be summarised as follows.         The applicants are gypsies by birth. The first applicant's parents came from Suffolk and she was brought up travelling with her parents each year between June and October engaging in casual seasonal farm work. The second applicant comes from a travelling family based in Wisbech Cambridgeshire, who also engaged in casual farm work during the summer.         The applicants began living together in or about 1989. They initially lived in a caravan at Bluntisham in Cambridgeshire where the second applicant was involved in casual farm labour. When the farm work ceased in or about 1990, they moved to the Willingham area in Cambridgeshire where they purchased a small plot of land to the rear of Green Acres, Meadow Drove where a number of other gypsies were living on land which they had bought. The applicants applied retrospectively for planning permission on 20 August 1991 but this was refused by the District Council on 26 September 1991.         On 19 December 1991, the District Council issued enforcement notices in respect of the applicants' occupation of their land. The applicants appealed. An Inspector visited the site and the District Council and the applicants made written representations. By decision dated 17 July 1992, the appeal was refused. The Inspector noted problems with the highway safety aspect of the site but found the principal objection lay in the detriment to the rural nature of the area. While she noted that there was doubt as to whether there was sufficient provision for gypsy sites in the area, she considered that the overall need for sites was not sufficient to outweigh the strong planning objections to the site. The Inspector extended the time for compliance to nine months.         In February 1992, the first applicant's mother was diagnosed as suffering from cancer and the first applicant's parents moved their caravans onto the applicants' site in order that the first applicant could care for her mother. The District Council were informed of this and informed the applicants that, though they would not take any action in respect to this, they could not agree to any further extension in time for compliance with the enforcement notices.         On 2 December 1992, the first applicant's daughter was born.         In December 1992, the first applicant's mother died. Her father suffered a stroke shortly afterwards and has required hospital treatment. He remains in poor health and continues to live in a caravan next to the applicants.         By letter dated 20 May 1993, the Department of the Environment informed the District Council that the Secretary of State had decided to designate the area of South Cambridgeshire under section 12 of the Caravan Sites Act 1968 (see below). Designation was granted on the basis of the Council's assurance that they will apply their powers humanely and give sympathetic consideration to applications for gypsy sites. It was noted that a small number of gypsies still remained on unauthorised sites but that, in light of the provision made for sites which is greater than in any other district, it was considered "not expedient for adequate accommodation to be provided for gypsies residing in or resorting to South Cambridgeshire District".         The Order designating the district of South Cambridgeshire came into force on 13 August 1993.         The District Council brought proceedings for breach of the enforcement notices against the applicants. On 29 September 1993, the case was heard at a magistrates' court. The prosecution against the first applicant was withdrawn and the second applicant was given a conditional discharge and ordered to pay £ 75 costs. The District Council undertook not to prosecute again for another three months.         On 1 July 1994, the first applicant was summonsed to appear at the magistrates' court on 24 August 1994.   2.     Relevant domestic law and practice   Caravan Sites Act 1968         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 is 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         The applicants complain of a violation of their right to a home under Article 8 of the Convention. They submit that there is an acknowledged shortfall of sites for gypsies in South Cambridgeshire and that despite the alleged site to be built nearby no work has been done for the two and a half years since the initial plan. They submit that local authorities are failing to fulfil their statutory duty to provide sites. South Cambridgeshire and the surrounding districts are designated areas which empowers local authorities to evict gypsies on unauthorised sites in criminal proceedings. As a result, the applicants contend that they have nowhere they can legally or safely go and that they wish to stay on their land where their children can live in a stable environment and receive a continuous education.         The applicants also invoke Article 14 of the Convention in conjunction with Article 8.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 28 October 1993 and registered on 11 February 1994.         On 8 March 1994, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 12 May 1994 and the applicants' observations in reply were   submitted on 5 August 1994 after one extension in the time-limit.         On   5 July 1994, the Commission decided to grant legal aid to the first applicant.   THE LAW         The applicants complain that they are prevented from living with their family in caravans on their own land and from pursuing their traditional way of life as a gypsies. They invoke Article 8 (Art. 8) of the Convention and Article 14 (Art. 14) of the Convention which provide:         Article 8 (Art. 8) of the Convention         "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."         Article 14 (Art. 14) of the Convention         "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 Government have submitted that the applicants' complaints have been introduced outside the six month time-limit imposed by Article 26 (Art. 26) of the Convention since the final decision taken in respect of the applicants' planning position was that of the inspector dated 17 July 1992 whereas the application was introduced before the Commission on   28 October 1993.         The applicants contend that they are not complaining merely of the inspector's decision but of the statutory and administrative regime to which they are subjected as gypsies.         The Commission notes that the applicants' complaints   extend beyond the planning decision of 17 July 1992 and challenge the legal framework which applies to them in their current position. It finds that these complaints may be construed as relating to a continuing situation to which the six month rule is not applicable (see eg. No. 93081/86, Dec. 13.10.86, D.R. 49 p. 44). Consequently, the application   cannot be rejected as having been introduced out of time.         The Government contend, inter alia, that the applicants cannot be considered victims of any violation of their rights under Article 8 (Art. 8) since as a matter of fact they were and are able to apply for a place on one of the many other local authority sites or pursue the option of seeking private land with planning permission. They point out that since the applicants are currently on their own land they have not been subject to any of the criminal sanctions which may apply under the designation system. Further, they emphasise that the applicants took up residence on their land without prior planning permission and argue that the applicants cannot claim as a member of a minority group to be immune from general planning control. To the extent that there might have been any interference with their rights under Article 8 (Art. 8), the Government consider that the continued effect of planning restrictions is justified by the interests of the protection of the environment and rural amenity. As regards Article 14 (Art. 14) of the Convention,   it is submitted that the case discloses no discrimination in a right guaranteed under the Convention. Further, even assuming that there was, the difference in treatment would be justified as being   in the interests of balancing the interests of the settled population and those of the gypsy minority.         The applicants complain of a violation of their rights under Articles 8 and 14 (Art. 8, 14) of the Convention. They are subject to pressure to leave their own land but will face criminal sanctions if they move on to public or unoccupied land. There are no suitable available places on public sites, there being an acknowledged shortfall of sites for gypsies in the area. The measures to which they are subjected are, it is submitted, draconian, severely discriminatory and disproportionate. These factors operate cumulatively to put pressure on gypsies to abandon their traditional lifestyle of a gypsy and render such lifestyle practically impossible.         The Commission has taken cognizance of the submissions of the parties. It considers that the applicants' complaints raise serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. It follows that the application cannot be dismissed as manifestly ill-founded. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits.   Secretary to the First Chamber          President of the First Chamber         (M.F. BUQUICCHIO)                         (A. WEITZEL)