CEDH · CASELAW;REPORTS;ENG — 12 septembre 1996

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                            Application No. 24839/94                                 Phyllis BOWMAN                                     against                               the United Kingdom                               REPORT OF THE COMMISSION                       (adopted on 12 September 1996)                                TABLE OF CONTENTS                                                                  page   I.     INTRODUCTION       (paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.   The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1         B.   The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . . . . . 1         C.   The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . . . . . 2     II.    ESTABLISHMENT OF THE FACTS       (paras. 17-27). . . . . . . . . . . . . . . . . . . . . . . . 3         A.   Particular circumstances of the case           (paras. 17-25). . . . . . . . . . . . . . . . . . . . . . 3         B.   Relevant domestic law and practice           (paras. 26-27). . . . . . . . . . . . . . . . . . . . . . 4     III.   OPINION OF THE COMMISSION       (paras. 28-49). . . . . . . . . . . . . . . . . . . . . . . . 6         A.   Complaint declared admissible           (para. 28). . . . . . . . . . . . . . . . . . . . . . . . 6         B.   Point at issue           (para. 29). . . . . . . . . . . . . . . . . . . . . . . . 6         C.   Article 10 of the Convention           (paras. 30-49). . . . . . . . . . . . . . . . . . . . . . 6             CONCLUSION           (para. 49). . . . . . . . . . . . . . . . . . . . . . . .10     DISSENTING OPINION OF MR. F. MARTINEZ . . . . . . . . . . . . . . .11     APPENDIX:         DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . .. . . . . . 12   I.INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is Phyllis Bowman, a British citizen born in 1926 and resident in London. She is represented by Mr. David Price, a solicitor practising in London, and Mr. Geoffrey Robertson, Q.C., counsel practising in London.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by Mr. Martin Eaton, Foreign and Commonwealth Office, as Agent.   4.     The case, as declared admissible, concerns the complaints of the applicant that the prosecution brought against her for distributing leaflets concerning candidates in a Parliamentary election constitutes an unjustified restriction on her freedom of expression.   The application raises issues under Article 10 of the Convention.   B.     The proceedings   5.     The application was introduced on 11 March 1994 and registered on 8 August 1994.   6.     On 30 November 1994, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the application.   7.     The Government submitted their written observations on 17 March 1995.   The applicant submitted her written observations in reply on 12 June 1995.   8.     On 4 December 1995, the Commission declared the application admissible insofar as it concerned the applicant's complaints of restriction on her freedom of expression. The remainder of the application was declared inadmissible. The Commission did not take into account further observations submitted by the Government on 22 November 1995. Following the decision on admissibility, these observations were admitted and sent to the applicant.   9.     The parties were then invited to submit any additional observations on the merits of the application.   10.    The Government submitted observations on 17 January 1996 and 15 March 1996 and the applicant submitted additional observations on 30 January 1996.   11.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   12.    The present Report has been drawn up by the Commission   in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS   13.    The text of the Report was adopted by the Commission on 12 September 1996 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.    The Commission's decision on the admissibility of the application is attached hereto as an Appendix.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   17.    The applicant is executive director of the Society for the Protection of the Unborn Child (SPUC).   18.    The 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.   19.    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.   20.    The applicant carries out the practice before national elections to Parliament to arrange in those Parliamentary constituencies   where SPUC 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.   21.    Before the elections held in 1992, the 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 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.   22.    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.   23.    The judge directed that the applicant be formally acquitted upholding the submission of the 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.   24.    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.   25.    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   26.    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..."   27.    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.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   28.    The Commission has declared admissible the applicant's complaints concerning the prosecution which was brought against her in respect of her distribution of leaflets referring to candidates in a Parliamentary election.   B.     Point at issue   29.    The issue to be determined is:         - whether there has been a violation of Article 10 (Art. 10) of       the Convention.   C.     Article 10 (Art. 10) of the Convention   30.    Article 10 (Art. 10) 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...         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."     1.     Existence of a restriction on the applicant's freedom of       expression: Article 10 para. 1 (Art. 10-1)   31.    The applicant submits that her freedom of expression has been restricted by the operation of the 1983 Act. She has been convicted and fined on earlier occasions and the prosecution in 1993 failed because of a technicality. She has no doubt that if she distributes leaflets at future elections she will face further prosecutions. This situation discloses in her view clear restriction on her expression of opinion and ideas contrary to Article 10 para. 1 (Art. 10-1) of the Convention.   32.    The Government dispute the existence of any restriction on the freedom of expression. They 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, in particular, since the prosecution against her in fact failed.   33.    The Commission notes the history of prosecutions and convictions in respect of the applicant's activities in distributing leaflets before elections. It recalls that the most recent prosecution did not result in a conviction as a result of a procedural time-bar. It does not find it useful to speculate as to whether or not the applicant would in fact have been convicted if the matter had been left to the jury. The Commission considers that the prosecution authorities regard her conduct as falling within the statutory prohibition and that the applicant must be regarded as being at a risk of prosecution and conviction which is real and substantial. Consequently, it must be concluded that the applicant is subject thereby to restriction on her freedom of expression within the first paragraph of Article 10 (Art. 10) of the Convention.   2.     Conformity with Article 10 para. 2 (Art. 10-2)   34.    The Commission must therefore determine whether this restriction conforms with the requirements of the second paragraph of Article 10, (Art. 10) namely, whether it is prescribed by law and necessary in a democratic society for one or more of the legitimate aims specified.         a.    "Prescribed by law"   35.    The applicant has not disputed that the prosecution brought against her complied with this criterion.   36.    The Commission finds no issue arising, either as to the existence of a basis in domestic law or as to the quality of the applicable law, which requires examination (see eg. Eur. Court HR, Margareta and Roger Andersson v. Sweden judgment of 25 February 1992, Series A no. 226-A, p. 25 para. 75).         b.    legitimate aim or aims   37.    The applicant disputes that the restriction is necessary for any of the legitimate aims provided for in paragraph 2 of Article 10 (Art. 10-2) .   She states that the law in question 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.   38.    The Government submits that the restriction, which seeks to control expenditure by candidates, pursues the legitimate aim of protecting the rights of others, namely, the rights of the candidates whose chances of election may be affected and the rights of the electors not to be subject to potential distortion in the choice of candidates available to them.   39.    The Commission accepts that the purpose of section 75 of the 1983 Act, pursuant to which the applicant was prosecuted, is to control the expenditure of individual candidates standing for election and to contribute to securing, as far as may be practicable, that they are on a footing of equality as regards the financing of their personal campaigns. The measure in this case may therefore be considered as pursuing the legitimate aim of protecting the rights of others, namely, the candidates and the electors in a particular constituency.         c.    "Necessary in a democratic society..."   40.      The applicant submits the restriction is not necessary in pursuit of any alleged legitimate aim, and is not required by a pressing social need and is   disproportionate. The 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 and bodies 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 individual electors who wish to raise single issues of importance to them. While other provisions in the 1983 Act are aimed at preventing corrupt election practices such as bribery and vote-rigging, these cannot lend justification to the restriction on freedom of expression imposed by   section 75. Since she is not a supporter or opponent of any particular candidate, prosecution cannot serve the alleged purpose of stopping supporters of a candidate from publicising his or her merits.   41.    In any event however, the applicant would question that expenditure of reasonable amounts of money by supporters or opponents of candidates must necessarily be prohibited. 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 function of section 75 in the context of current electoral practice is to ensure that the agenda for elections is set by the major political parties and reflected in the news media, without the intrusion of single issues of a moral dimension which no major party wishes to confront. The applicant points to a number of issues which many individuals and groups consider are of crucial importance to their voting choice eg. issues relating to the arms trade, cruelty to animals in sport, Republicanism and the monarchy, need for a Bill of Rights, need for greater protection of the environment, Sunday trading and submits that section 75 frustrates any effective attempt to direct public attention towards these issues during an election. Because of the tendency of political parties to make these issues subject of "conscience votes" by MPs the beliefs of individual candidates about them is much more important that their views about other matters which are or will become the subject of party policy, which means that their vote will be "whipped" into the party line.   42.    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 or her 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.   43.    The Government also reiterates that the restriction imposed on freedom of expression is limited only to the incurring of expenditure "with a view to promoting or procuring the election of a candidate" : it does not prohibit expression of opinion generally or the conveying of information concerning topics of public interest and legislative action or even factual, accurate information about candidates. The applicant is free at any time during an election or otherwise to express her opinions about abortion and other matters and to criticise the views of politicians and others. Section 75 is, in their submission, part of a statutory code designed to ensure that the result of an election is not determined by the wealth of a candidate or his or her supporters and as such, the means used to achieve this aim are well within their margin of appreciation.   44.    The Government submit that the legislation is not directed at prohibiting "single issue" campaigning but applies generally to expenditure "with a view to promoting or procuring the election of a candidate". Further, if an individual were permitted to incur expense in supporting or opposing a candidate on a particular issue, a candidate who was affected would have to incur expense to answer the points raised, which would either defeat the purpose of limiting candidate's expenditure or adversely affect a candidate who would be unable to respond.   45.    The Commission recalls the key principles underlying the application of the "necessity" test in the second paragraph of Article 10 (Art. 10) of the Convention. Paramount is the consideration that freedom of expression constitutes one of the essential foundations of a democratic society: exceptions to it must be narrowly interpreted and the necessity for any restrictions convincingly established. The adjective "necessary" has also been held to imply the existence of a "pressing social need". In assessing whether such need exists, Contracting States have a certain margin of appreciation, but this is subject to review by the Convention organs, which in exercising their supervisory jurisdiction do not take the place of the national authorities but look at the interference complained of in light of the case as a whole and determine whether is proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it are   "relevant and sufficient" (see, amongst others, Eur. Court HR, The Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 29 para. 50).   46.    As regards   whether the restriction imposed on the applicant by the operation of section 75 is proportionate with its aim, the Commission notes that the provision covers the incurring of unauthorised expenditure with a view to promoting or procuring the election of a particular candidate. It is apparent that this is phrased in broad terms which extend beyond prohibition of direct publicity for or against a particular candidate. Assuming, as the Government argue for the purposes of the current application, that the applicant's leaflets are to be regarded as being distributed with a view to promoting the election of the candidate with the stand on abortion most acceptable to the applicant, the Commission is not satisfied that the need to regulate candidates' finances extends to a prohibition of the expression of opinion or information which may indirectly have the effect of influencing voting opinion. The Commission notes that the information concerning abortion views of candidates might in fact have the tendency to influence certain voters in different directions, depending on their own personal convictions. The Commission is not persuaded therefore that the communication of information concerning candidates' position on single issues, such as abortion, can be considered as unbalancing the position of equality of candidates in a particular constituency. While the Government has stated that publicity on a particular topic may force a candidate to incur expense in answering the point or countering any   effect, the Commission finds no indication in the circumstances of the present case that the applicant's publication of her leaflet placed any candidate in an unfair or unequal position. The Commission does not doubt that the insistence on "conscience" issues by individuals with strongly-held opinions may be a nuisance or annoyance to candidates, who fight elections as part of a national party campaign. However, individual freedom of expression, as a key ingredient of a democratic society, must be considered inextricably linked with a free election system and cannot be excluded without convincing justification.   47.    The Commission has had regard to whether the expression of opinion or information on "single issues" addressed by individuals or groups with strongly held views may operate in particular constituencies so as to "distort" election results. It has previously considered in the context of Article 3 (P1-3) of the First Protocol, which guarantees the "free expression of the opinion of the people in the choice of the legislature", that one of the legitimate objectives of national electoral systems is to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will (see eg. No. 11406/85 dec. 10.3.88 DR 55 p. 130). The Government have not however produced any argument to the effect that "single issue" campaigning of the kind illustrated in the applicant's case would distract voters from the   political platforms which are the basis of national party campaigns to such a degree as would hinder the electoral process.   48.    Having regard to the above and in light of the fact that the restriction applied to the distribution by the applicant of factually accurate information concerning candidates' views or voting record on important legal and moral issues, such as abortion and foetal experimentation, which are of public interest and not irrelevant to pre-election debate, the Commission is of the opinion that the measure was disproportionate to the legitimate aim pursued and cannot be regarded as "necessary in a democratic society" for the protection of the rights of others.         CONCLUSION   49.    The Commission concludes, by 28 votes to 1, that there has been a violation of Article 10 (Art. 10) of the Convention.           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission                                                          (Or. français)                      OPINION DISSIDENTE DE M. F. MARTINEZ           J'ai voté contre l'avis de la majorité car j'estime que, dans les circonstances de l'espèce, il n'y a pas eu violation de l'article 10 de la Convention .         Il est vrai que la liberté d'expression constitue l'un des fondements essentiels dans une société démocratique ; mais cette liberté repose elle-même sur une société dotée d'une structure la plus démocratique possible. Or, l'institution qui symbolise par excellence la démocratie est le Parlement. Tous les candidats au Parlement doivent être élus dans une dynamique qui assure l'égalité des chances entre eux et je considère que les modalités de la confrontation électorale font partie de a marge d'appréciation des Etats, compte tenu de leur particulières spécificités. Je suis d'avis que, lorsque le système est établi par des lois issues du Parlement - institution qui incarne l'expression de la volonté du peuple - les organes de la Convention doivent les respecter dans toute la mesure du possible et ne pas substituer leurs propres idées à celles de la volonté démocratique exprimée par la loi interne.         Cela dit, je vois que la Commission censure la loi britannique tendant à favoriser l'égalité de chances pour les candidats aux élections législatives moyennant l'interdiction faite aux tierces personnes de dépenser de l'argent dans la promotion de l'élection d'un candidat.         En ce qui me concerne, je trouve en cela un procédé légitime, même si les dépenses servent à diffuser des idées qui sont en dehors du contexte des élections.         En conséquence, il me semble que la loi en question est pertinente dans une société démocratique non pas seulement pour la protection des droits des autres candidats, mais aussi pour assurer que la première institution de la société démocratique - le Parlement - soit composée de la manière la plus démocratique, à savoir que les candidats bénéficiant d'un appui financier ne puissent avantager   à ceux qui en sont démuni.         Or, le cas de la requérante est justifié par le second paragraphe de l'article 10 de la Convention.