CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 janvier 1997

.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 Nos. 28979/95 and 30343/96                       by Gerard ADAMS and Tony BENN                       against the United Kingdom        The European Commission of Human Rights sitting in private on 13 January 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  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                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION              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 applications introduced on 29 March 1994 by Gerard ADAMS and Tony BENN against the United Kingdom and registered on 26 October 1995 and 1 March 1996 under file Nos. 28979/95 and 30343/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant states that he is an Irish citizen, born in 1948 and resident in Belfast, Northern Ireland. He is the President of Sinn Fein, a lawful political party in both parts of Ireland. The second applicant is a citizen of the United Kingdom, born in 1925 and residing in London. He is an opposition Member of Parliament (MP), former Cabinet Member and member of Her Majesty's Privy Council. In the proceedings before the Commission the applicants are represented by Mr. John Wadham, a lawyer practising in London.   A.    Particular facts of the case        The facts of the case, as submitted by the applicants, may be summarised as follows.        On 21 September 1993, the second applicant wrote to the first applicant inviting him to speak to MPs and a number of journalists in the Grand Committee Room of the House of Commons. The first applicant had been an MP from 1983 until 1992 and had visited Great Britain on a number of occasions to attend meetings and conferences. Although he had been subject to an exclusion order before, the last one having been imposed in December 1982, this had been revoked on his election to Parliament in June 1983.        The first applicant accepted the invitation. On 18 October 1993 the second applicant wrote to the Secretary of State for Northern Ireland to inform him of the invitation for the first applicant and the proposed meeting. On 19 October 1993 the Secretary of State for the Home Department (the Home Secretary) signed an exclusion order under the Prevention of Terrorism Act 1989 ("PTA"), prohibiting the first applicant from "being in, or entering, Great Britain" on the ground that the Secretary of State was satisfied that the first applicant was or had been concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland.        On 23 October 1993, the Government chose to make public the fact that the exclusion order had been imposed against the first applicant. By letter dated 29 October 1993, the first applicant, through his solicitors in Northern Ireland, objected to the making of the order and made representations. On 23 November 1993, the first applicant together with his solicitor attended an interview with an adviser appointed by the Home Secretary under Schedule 2 of the PTA. During this interview the first applicant reiterated his claims that he was not a member of the IRA, nor was he a spokesman for them and that his only reason for going to London was to engage in dialogue and further the peace process. The notes taken by the first applicant record the adviser as stating:        "If you come over to England - what are you going to say - that      is the problem. It is not a question of you being suspected of      carrying explosives or attempting personally to engage in acts      of violence. You may say things that could lead to the      instigation of terrorism..."        By letter dated 12 January 1994, the first applicant was informed that, having considered the representations made by the first applicant and the report prepared by the Home Secretary's adviser, the Home Secretary had decided not to revoke the exclusion order against the first applicant.        On 6 April 1994 the first applicant applied for leave to apply for judicial review of the exclusion order and the Home Secretary's refusal to revoke the order. Leave was granted on 5 May 1994.        In his application for judicial review the first applicant invoked both domestic law and European Community law, in particular Article 8A(1) of the European Community Treaty (as amended by the Treaty of Maastricht) and his right to freedom of expression as guaranteed by Article 10 of the Convention and imported into English law by European Community law.        On 29 July 1994 the Divisional Court gave the judgment in the first applicant's application for judicial review.        In the judgment given by Lord Justice Steyn, the Court dismissed the case under domestic law. It referred to the political context in which from February 1993 a series of secret contacts had taken place between the Government and Sinn Fein in order to find a peaceful solution to the problems in Northern Ireland which had only become public on 28 November 1993. During April 1993, there had been a series of meetings between the first applicant and Mr. John Hulme (leader of the Social Democratic and Labour Party)   pursuant to which they drew up a proposal for peace. The Democratic Unionist Party and the Ulster Unionist Party had condemned these talks. Around the same period, in July 1993, Parliament was considering the enactment of the Maastricht Treaty, in which the Government faced considerable opposition. An important vote taken on 22 July 1993 was won by the Government by 318 votes to 317. The Times reported the next day that nine Unionist MPs had changed their votes at the last moment to support the Government, on the basis that they expected the Government to look more sympathetically on their grievances. The Court agreed that it could be a correct inference that, if the first applicant had been allowed to attend the meeting, it could have been a matter of political embarrassment for the Government.        As regarded the first applicant, the Court noted that, while his counsel utterly rejected the allegations that he had connections with unlawful organisations stating that he merely had "an ability to speak to the IRA", there was no denial in his affidavit of connections with the IRA. The Court considered it would be naive in the extreme not to infer that he has at least substantial connections with the IRA.        As regarded the first applicant's application challenging the exclusion order, the Court held that because "the Secretary of State is not obliged to give reasons, a decision under section 5(1) (of the PTA) will not in practice be reviewable except in the most exceptional circumstances.... To that extent the desirability of an effective remedy must yield to the higher interest of the state."        While the Court could "readily accept that the exclusion order made against <the first applicant> may have had the effect of saving the Government from political embarrassment", it   nonetheless held that it could not conclude that the Secretary of State acted either for an improper purpose or that his decision was unreasonable. It found issues arising however as to the interpretation and application of Community law and referred a number of questions to the European Court of Justice ("ECJ") by way of preliminary reference under Article 177 of the EC Treaty.        On 8 August 1994 the ECJ received the request for a preliminary reference. During the autumn of 1994, written observations were lodged at the ECJ on behalf of the EC Commission, the United Kingdom Government, some other Member States and the first applicant.        On 31 August 1994, the IRA announced a cease-fire and on 21 October 1994 the Prime Minister announced the lifting of the exclusion order against the first applicant.        On 4 January 1995, the UK Government issued a notice of motion requesting the Divisional Court to both withdraw the reference made on 29 July 1994 and dismiss the first applicant's judicial review proceedings, on the basis that the revocation of the exclusion order had rendered the judicial review proceedings academic.        This application was resisted by the first applicant on the ground that, although the exclusion order in question had been revoked, the power to make such orders remained in place and the PTA remained as a significant tool which had the capability to be re-used as a prior restraint on freedom of speech. Furthermore, although it had become unnecessary for the Divisional Court to bring up and quash the decisions challenged, the first applicant's application for declaratory relief remained outstanding and was of real importance to him. Leave of the court was therefore sought to amend the application for judicial review in order to include a claim for exemplary damages.        On 6 April 1995, the notice of motion and the first applicant's application for leave to amend the application for judicial review was heard by the Divisional Court.        On 12 April 1995, the Divisional Court gave its judgment, refusing to grant the first applicant leave to amend his application for judicial review in order to include a claim for damages and ordered that the reference be withdrawn and the first applicant's application for judicial review be dismissed. By order dated 5 May 1995, the President of the ECJ therefore removed the first applicant's case from its register.        On the same day the first applicant's lawyers had applied for an amendment of his legal aid certificate to include an application for leave to appeal to the Court of Appeal and if granted to pursue the appeal in the Court of Appeal. The Legal Aid Board refused that application and an appeal was brought before the Legal Aid Area Committee.        By letter dated 21 June 1995, the Legal Aid Board turned down this appeal on the grounds that the Committee considered there was insufficient prospect of success to justify the costs and the proposed appeal.   B.    Relevant Domestic Law   Prevention of Terrorism Act (Temporary Provisions) Act 1989   "Section 4        Exclusion Orders: General      (1)    The Secretary of State may exercise the powers conferred on            him by this Part of the Act in such a way as appears to him            expedient to prevent such acts of terrorism to which this            Part of this Act applies.      (2)    The acts of terrorism to which this Part of the Act applies            are acts of terrorism connected with the affairs of Northern            Ireland.   Section 5         Orders Excluding Persons From Great Britain      (1)    If the Secretary of State is satisfied that any person -            (a)    is or has been concerned in the commission,                  preparation or instigation of acts of terrorism to                  which this Part of this Act applies; or            (b)    is attempting or may attempt to enter Great Britain                  with a view to being concerned in the commission,                  preparation or instigation of such acts of terrorism,            the Secretary of State may make an exclusion order against            him.   Section 8         Offences In Respect Of Exclusion Orders      (1)    A person who is subject to an exclusion order is guilty of            an offence if he fails to comply with the order ...        (4)    A person guilty of an offence under this section is liable -            (a)    on conviction on indictment, to imprisonment for a                  term not exceeding five years or a fine or both;            (b)    on summary conviction, to imprisonment for a term not                  exceeding six months or a fine not exceeding the                  statutory maximum of both.   Schedule 2, paragraph 3        (1)    If after being served with notice of the making of an            exclusion order the person against whom it is made objects            to the order he may -            (a)    make representations in writing to the Secretary of                  State setting out the grounds of his objection; and            (b)    include in those representations a request for a                  personal interview with the person or persons                  nominated by the Secretary of State under sub-                  paragraph (5) below.      ...      (5)    If a person exercises those rights within the period which            they are required to be exercised by him, the matter shall            be referred for the advice of one or more persons nominated            by the Secretary of State."   C.    Other relevant material        Article 8 A of the European Community Treaty (as amended by the Maastricht Treaty) provides so far as relevant:        "1. Every citizen of the Union shall have the right to move and      reside freely within the territory of the Member States, subject      to the limitations and conditions laid down in this Treaty and      by measures adopted to give it effect."   COMPLAINTS        Concerning the first applicant   1.    The first applicant complains under Article 10 of the Convention that the expulsion order prohibiting him from entering Great Britain to attend a meeting violated his right to freedom of expression. The first applicant submits that such an order was not necessary in a democratic society and that the reasons adduced for the expulsion order were neither relevant nor sufficient, nor was the action taken proportionate. The first applicant is the president of a lawful political party in Northern Ireland and was seeking to engage in dialogue with the aim of furthering the peace process between the United Kingdom and the IRA.   2.    The first applicant further complains under Article 6 of the Convention that the fact that the domestic court declined to examine the respondent's motive, as well as refusing to investigate the facts and withdrawing the reference to the European Court of Justice, led to the trial being unfair.   3.    The first applicant also complains under Article 13 of the Convention that the lack of effective review procedures available to him through the British courts violated his right to an effective remedy.        Concerning the second applicant   1.    The second applicant complains under Article 10 of the Convention that the expulsion order prohibiting the first applicant   from entering Great Britain to attend the meeting that he had invited him to violated his right to freedom of expression and, in particular, his right to freedom to receive information and ideas. The second applicant submits that such an order was not necessary in a democratic society and that the reasons adduced for the expulsion order were neither relevant nor sufficient, nor was the action taken proportionate. The second applicant is an opposition MP and was seeking to give the first applicant the opportunity to engage in dialogue with the aim of furthering the peace process between the United Kingdom and the IRA.   2.    The second applicant also complains under Article 13 of the Convention that he did not have an effective remedy before a national authority in respect of his complaint.   THE LAW   1.    The applicants complain of a violation of Article 10 (Art. 10) of the Convention in respect of the imposition of an exclusion order on the first applicant which prevented him from attending the meeting in the House of Commons to which the second applicant had invited him.        Article 10 (Art. 10) of the Convention 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."        The Commission recalls that the exclusion order imposed on the first applicant prevented him from attending a specific meeting in the House of Commons to which he had been invited   by the second applicant. In these circumstances, the first applicant has been subject to a restriction on his freedom of expression and to impart information and ideas and the second applicant to a restriction on his right to receive information and ideas, within the meaning of the first paragraph of Article 10 (Art. 10).        It must therefore be determined whether the restrictions were compatible with the requirements of the second paragraph of Article 10 (Art. 10), namely whether they were "prescribed by law", pursued a legitimate aim and were "necessary in a democratic society" to achieve that aim.        The Commission notes that the applicants have not submitted that the measure was not "prescribed by law".        As regards the aim of the measure, the Commission notes that the Secretary of State exercised his power to impose an exclusion order on the basis that he was satisfied that the first applicant was or had been concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland. It appears from the transcript of the first applicant's interview with the adviser that the concern was not that the first applicant would be attempting personally to engage in acts of violence but that he might say things which could lead to the instigation of terrorism. The applicant has pointed to the timing of the order as indicating that the real motivation of the measure was to save the Government from political embarrassment, which effect the domestic courts readily accepted that the measure had. The Commission notes however that the domestic courts did not find that this was in fact the purpose of the restriction, declining to conclude that the order was made for any improper purpose. Lord Justice Steyn did comment that there was no denial by the first applicant of connections with the IRA and that it would be naive not to infer that he has at least substantial connections with them, from his acknowledged "ability to speak to the IRA". The Commission does not consider that it can be excluded that the Government took the measure in order to prevent a highly public exposure of ideas and opinions which might, arguably, purport to lend legitimacy to the use of violence in pursuit of political aims (see, mutatis mutandis, Nos. 15404/89 Purcell v. Ireland, dec. 16.4.91 D.R. 70 p. 262 and 18714/91 Brind and others v. the United Kingdom, dec. 9.5.94 D.R. 77 p.42). The restriction may therefore be reasonably said to pursue the interests of national security and the prevention of disorder or crime.        As regards the necessity of the restriction, the case-law of the Court and Commission emphasises the importance of freedom of expression which is one of the essential foundations of a democratic society and that as a matter of principle the necessity for any restriction must be convincingly established (see eg. Eur. Court HR, Goodwin v. United Kingdom judgment of 27 March 1996, to be published in Reports 1996, paras. 39-40). Nonetheless, it is in the first place for the national authorities to assess whether there is a pressing social need for a restriction and in making their assessment they enjoy a certain margin of appreciation.        In the present case,   the restriction complained of prevented the first applicant from attending a specific meeting in London. The Commssion notes in that context that the United Kingdom is not a party to Protocol No. 4 to the Convention which in Article 2 (Art. 2) guarantees freedom of movement within the territory of a State. It remained open to the first applicant to express his views by other means or in Northern Ireland and for the second applicant to receive those views. The limitation was thus narrowly confined in its scope insofar as it affected the freedom to receive and impart information. The Commission recalls the sensitive and complex issues arising in the context of Northern Ireland where there have been ongoing efforts to establish a peace process acceptable to the various communities and parties involved and where the threat of renewed incidents of violence remains real and continuous. It also notes that the exclusion order was lifted following the announcement of a ceasefire by the IRA. In these circumstances, the Commission finds that the decision of the Secretary of State to impose an exclusion order which prevented the first applicant from attending a meeting in London was not disproportionate to the aim of protecting national security and preventing disorder and crime and that it could be regarded as necessary in a democratic society for those purposes.        It follows that the applicants' complaints must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The first applicant has also complained that   he did not receive a fair hearing before the domestic courts, invoking Article 6 para. 1 (Art. 6-1) of the Convention which provides, in its first sentence:        "1.    In the determination of his civil rights and obligations or      of any criminal charge against him, everyone is entitled to a      fair and public hearing within a reasonable time by an      independent and impartial tribunal established by law..."        The first applicant submits that Article 8A(1) of the EC Treaty confers on European Union citizens the right to move and reside freely within the territory of the Member States and that he was denied the possibility of having his "arguable" claim determined by a court, since the domestic courts were unable in judicial review to examine whether the Secretary of State's decision was in fact justified in the interests of national security and since the domestic courts withdrew the Article 177 reference from the ECJ when the exclusion order was lifted.        The Commission recalls that Article 6 para. 1 (Art. 6-1) applies only to disputes ("contestations") over rights and obligations which can be said, at least on arguable grounds to be recognised under domestic law. It does not in itself guarantee any particular content for "rights and obligations" in the substantive law of Contracting States (cf. Eur. Court H.R., James and others v. United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46, para. 81, Lithgow and others v. United Kingdom judgment of 8 July 1986, Series A no. 102, p.70, para. 192). It is also established case-law that Article 6 para. 1 (Art. 6-1) guarantees to everyone who claims that an interference with his "civil rights" is unlawful   the right to submit that claim to a tribunal satisfying the requirements of that provision (Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20, para. 44).        The Commission notes however that the applicant's claim is based on a provision of a treaty which provides in general terms for freedom of movement of citizens of the European Union within the territory of Member States. While it appears subject to argument in the English courts as to whether this provision is declaratory or confers directly applicable rights in domestic law, the Commission in any event is of the opinion that any right involved is of a public law nature, having regard to the origin and general nature of the provision, which lacks the personal, economic or individual aspects which are characteristic to the private law sphere (see eg. Eur. Court HR, Schouten and Meldrum judgment of 9 December 1994, Series A no. 304 pp. 21-24 paras. 52-60). Consequently, the matter falls outside the scope of the concept of "civil rights and obligations".        It follows that this part of the application must be rejected as incompatible ratione materiae with the provisions of the Convention pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicants have complained that they did not have available to them an effective remedy in respect of their complaints, invoking Article 13 (Art. 13) of the Convention:        "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).        The Commission finds that the applicants cannot be said, in light of its findings above to have an "arguable claim" of a violation of their Convention rights.        It follows that this complaint 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, unanimously,        DECLARES THE APPLICATIONS INADMISSIBLE.             H.C. KRÜGER                          S. TRECHSEL          Secretary                              President      to the Commission                     of the Commission