CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 décembre 1995

.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. 24839/94                       by Phyllis BOWMAN and the Society for the                          Protection of Unborn Children (SPUC)                       against the United Kingdom         The European Commission of Human Rights sitting in private on 4 December 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              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 11 March 1994 by Phyllis BOWMAN and the Society for the Protection of Unborn Children (SPUC) against the United Kingdom and registered on 8 August 1994 under file No. 24839/94;         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       17 March 1995 and the observations in reply submitted by the       applicants on 12 June 1995;         Having deliberated;         Decides as follows:   THE FACTS         The first applicant is a British citizen born in 1926 and resident in London. The second applicant is an incorporated society founded in 1967 with its registered address in London. The applicants are represented before the Commission by Mr. David Price,   a solicitor practising in London, and Mr. Geoffrey Robertson, Q.C., counsel practising in London.         The facts as submitted by the parties may be summarised as follows.   A.     Particular circumstances of the case         The first applicant is executive director of the second applicant.         The first applicant conscientiously believes that abortion and human embryo experimentation are morally wrong and that the United Kingdom statute which permits abortion up to 22 weeks and embryo experimentation up to 14 days should be changed by Parliament. The second applicant is an organisation of 50 000 members who share the view that Parliament should reconsider and revise the laws on these subjects.         The major political parties have no policies with regard to abortion and embryo experimentation: these are regarded as moral issues and Members of Parliament are allowed to vote according to their conscience.         The first applicant carries out the practice before national elections to Parliament to arrange in those Parliamentary constituencies   where the second applicant has local membership groups:         a. for all candidates to be questioned as to their opinion and       voting intentions in relation to changes in the law relating to       abortion and embryo experimentation and         b. for an accurate factual record of these opinions and voting       intentions to be prepared for each constituency and         c. for leaflets to be printed setting out this record and       distributed widely in the relevant constituency.         Before the elections held in 1992, the first applicant arranged to have distributed 25 000 leaflets in the constituency of Halifax, which outlined the views of the three principal candidates on abortion and setting out the voting record of one candidate on bills in Parliament. The leaflet was entitled, "We are not telling you how to vote but it's essential for you to check Candidates' voting intentions on abortion and on the use of the human embryo as a guinea-pig." The leaflet proceeded to indicate the voting record on these issues of the three candidates from the major political parties and outlined their publicly stated views on the issues. The first applicant was charged under section 75 (1)) and (5) of the Representation of the People Act 1983 which makes it a criminal offence in the period before an election for unauthorised persons to spend more than £5.00 in conveying information to electors about candidates.    At the applicant's trial on 27 September 1993, the charge was amended to one of corrupt practice under section 75 (1) and (5), namely, of incurring expenses of issuing publications with a view to promoting or procuring the election of a candidate for the Halifax constituency at the Parliamentary election held on 9 April 1992.         The judge directed that the first applicant be formally acquitted upholding the submission of the first applicant that the summons had not been issued in accordance within the statutory one year time-limit (section 176 of the 1983 Act) from the relevant expense having been incurred.         The proceedings were reported in the press. Details were given of the charges against the applicant and the prosecution counsel's submission was reported to the effect that in the leaflet the Labour candidate was portrayed in emotive language conjuring up sinister shadows of Dr. Mengele and human experimentation.         The applicant had been prosecuted for similar offences in 1979 and 1982. In 1979, she was convicted in respect of a leaflet distributed in Ilford North by-election and sentenced to a fine and payment of prosecution costs. In 1982, the applicant was convicted in respect of a leaflet distributed during the European elections and sentenced to a fine and payment of prosecution costs.   b.     Relevant domestic law and practice         Section 75 of the Representation of the People Act 1983 provides as relevant:         "(1) No expenses shall, with a view to promoting or procuring the       election of a candidate at an election, be incurred by any person       other than the candidate, his election agent and person       authorised in writing by the election agent on account-              (a)...              (b) of issuing advertisements, circulars or publications;            or              (c) of otherwise presenting to the electors the candidate            or his views or the extent or nature of his backing or            disparaging another candidate,         but paragraph (c) of this subsection shall not-              (i) restrict the publication of any matter relating to an            election in a newspaper or other periodical or in a            broadcast made by the British Broadcasting Corporation or            the Independent Broadcasting Authority;              (ii) apply to any expenses not exceeding <£5.00 as            amended>...         (5)If a person-              (a) incurs, or aids, abets, counsels or procures any other            person to incur, any expenses in contravention of this            section...         he shall be guilty of a corrupt practice..."         The penalty for offences tried on indictment under section 75 is a maximum sentence of imprisonment of 1 year and/or a fine up to a maximum of £5000. In addition, a person convicted of a corrupt practice (of which the first offence set out in section 75(5) is one) is a five year disqualification from being registered as a voter, voting, being elected to or sitting in the House of Commons or holding any judicial or public office.   COMPLAINTS         The applicants complain under Article 10 of the Convention of the prosecution brought against the first applicant. They complain of the effect of section 75 of the 1983 Act   which allows the media   and the political parties themselves to communicate information but prohibits non-party individuals and pressure groups from communicating information and opinion to fellow citizens. It has been used to silence not only abortion issues at election but also in respect of groups protesting against nuclear weapons (Campaign for Nuclear Disarmament), fox-hunting and environmental damage and also against Charter 88 which campaigns for the incorporation of the European Convention on Human Rights into domestic law.         It is submitted that it is not necessary for the law to criminalise the imparting of factually accurate information or the expression of opinion about candidates at election time. The ability to participate in free political debate particularly at time of election is, it is alleged, a key ingredient of the democratic process. The restriction cannot be justified on any of the grounds set out in Article 10 para. 2 and cannot be considered to have a legitimate aim. There is in fact a "pressing social need" for important matters of conscience to be part of the pre-election debate. Finally, in any event, it is submitted that the penalties applicable are disproportionate.         The applicants also invoke Article 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 11 March 1994 and registered on 8 August 1994.         On 30 November 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 17 March 1995 after one extension in the time-limit and the applicant's observations in reply were submitted on 12 June 1995, also after one extension in the time-limit.   THE LAW   1.     The applicants complain of the prosecution brought against the first applicant in respect of the distribution of leaflets produced by the second applicant association concerning the abortion and bioethics views of candidates for election to Parliament in the constituency of Halifax. The applicants invoke Article 10 (Art. 10) of the Convention which provides:         "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.   This Article shall not       prevent States from requiring the licensing of broadcasting,       television or cinema enterprises.         2.    The exercise of these freedoms, since it carries with it       duties and responsibilities, may be subject to such formalities,       conditions, restrictions or penalties as are prescribed by law       and are necessary in a democratic society, in the interests of       national security, territorial integrity or public safety, for       the prevention of disorder or crime, for the protection of health       or morals, for the protection of the reputation or rights of       others, for preventing the disclosure of information received in       confidence, or for maintaining the authority and impartiality of       the judiciary."         Concerning the first applicant         The Government submit that the first applicant cannot claim to be a victim of any interference with her rights. Since the prosecution was dismissed before the court reached any conclusion as to whether the first applicant's activities constituted offences under the 1983 Act, she cannot claim that her conduct is in fact prohibited by the criminal law.         The applicant points out that she was prosecuted and stood trial publicly in proceedings where serious allegations were made against her, that she incurred costs in her defence and that while she was in fact acquitted on a technicality, it cannot be realistically claimed by the Government that her activities fall outside the scope of the 1983 Act.         The Commission recalls that in order to claim to be a victim of an interference with a right an applicant must be "directly affected" by the measure complained of (see eg. Eur. Court H.R. Open Door and Dublin Well Woman judgment of 29 October 1992, Series A no. 246, p. 22, para. 44). The Commission is satisfied that the first applicant was "directly affected" by the prosecution instituted against her for her activities in distributing leaflets. She may accordingly claim to be a victim of an interference with her rights under Article 10 (Art. 10) of the Convention.         As regards the existence of any restriction with the first applicant's freedom of expression, the Government submit that section 75 of the 1983 Act does not prohibit expression of views about candidates as such, only unauthorised expenditure with a view to promoting or procuring the election of a particular candidate. They emphasise that it has not been established that the applicant's conduct is contrary to this prohibition. Concerning the conformity of any restriction with the requirements of Article 10 para. 2 (Art. 10-2) of the Convention, the Government submit the system of control of election expenses is necessary to ensure the right of each individual candidate to stand on equal terms with his rivals in that constituency. Controlling the individual candidate's expenses would be pointless if other persons were allowed to incur expenses on their behalf: it would put at an advantage those candidates who had wealthy supporters or the support of particular pressure or campaign groups.         The first applicant does not challenge the lawfulness of the restriction but disputes that it has a legitimate aim or that it is required by a pressing social need or is proportionate.          The first applicant contends that the legislation does not deal with the real issues of corruption which lie nowadays in the secret donations made by private persons to political parties. She emphasises the nature of elections in the United Kingdom where all elected members of Parliament are members of established and well-funded parties who wage campaigns on a national basis. What is in fact being   prohibited by section 75 is the participation on a local level of electors who wish to raise issues of importance to them. She stresses the importance of free political debate in a democratic society, and the lack of any "pressing social need" to suppress the dissemination of factually accurate information about the position of candidates for public office on important moral issues.         The Commission considers, in the light of the parties' submissions, that the complaints raised by the first applicant raise serious issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.         Concerning the second applicant         The Government have submitted that the second applicant, an association which promotes the views of its members as regards, inter alia, abortion cannot claim to be a victim of any interference with its rights.         The applicants' observations do not address the point as regards the second applicant.         The Commission notes that the application is submitted almost wholly from the point of view of the first applicant and that the second applicant is barely mentioned in the complaints and submissions.         The Commission recalls that the second applicant has not been subject to criminal prosecution, nor has it been subject to any measure of seizure or confiscation. The Commission finds that it cannot claim to be affected as a victim itself by the prosecution of the first applicant and that in reality the complaints concern the first applicant alone.         Accordingly, the Commission finds that, to the extent that the complaints appear to be put forward on behalf of the second applicant, they must be rejected as incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicants also invoke Article 13 (Art. 13) of the Convention, which provides that :         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."         The Commission recalls however that Article 13 (Art. 13) does not require a remedy under domestic law in respect of any alleged violation of the Convention.   It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23, para. 52). Further, the case-law of the Commission and Court indicates that Article 13 (Art. 13) cannot be interpreted as guaranteeing a remedy by which a Contracting State's laws as such can be challenged before a   national authority on the ground of being contrary to the Convention (see eg. Eur. Court H.R., James and others judgment of 21 February 1986, Series A no. 98, p. 47, para. 84).         Given its findings above concerning the lack of victim status of the second applicant in the context of Article 10 (Art. 10), the Commission finds that it cannot be said to have an "arguable claim" of a violation of its Convention rights as required by Article 13 (Art. 13) of the Convention. As regards the first applicant, the Commission notes that her complaints are effectively that section 75 of the 1983 Act, a legislative provision, does not conform with the requirements of Article 10 (Art. 10) of the Convention, which allegation, applying the case-law above, cannot disclose a violation of Article 13 (Art. 13) of the Convention.         It follows that this part of the application must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES ADMISSIBLE the application insofar as it concerns the       first applicant's complaints of restriction on her freedom of       expression, without prejudging the merits of the case;         DECLARES INADMISSIBLE the remainder of the application.     Secretary to the Commission                 President of the Commission          (H.C. KRÜGER)                               (S. TRECHSEL)