ANDERSON AND NINE OTHERS v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 33689/96

                      by Mark ANDERSON and nine others

                      against the United Kingdom

     The European Commission of Human Rights sitting in private on

27 October 1997, the following members being present:

           Mr    S. TRECHSEL, President

           Mrs   G.H. THUNE

           Mrs   J. LIDDY

           MM    E. BUSUTTIL

                 G. JÖRUNDSSON

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 M.P. PELLONPÄÄ

                 B. MARXER

                 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

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, 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 13 May 1996 by

Mark ANDERSON and nine others against the United Kingdom and registered

on 7 November 1996 under file No. 33689/96;

     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 applicants are British citizens.  Their names and dates of

birth are set out in the Annex to the present decision.  They are

represented by Mr. P. Leach, solicitor, of Liberty, London.  The facts

of the case, as submitted by the applicants' representative, may be

summarised as follows.

     The applicants are West Indian in origin and are black.  At the

material time they were all resident in Wellingborough,

Northamptonshire.

     CIN Properties Limited ("the Company") is a commercial property

company which owns a 125 year lease of the Swansgate Shopping Centre

("the Centre") in Wellingborough.  The freehold estate is owned by

Wellingborough Borough Council.  The lease was granted by

Wellingborough Borough Council in 1980, backdated to run from 1 April

1975.  According to the terms of the lease the Company is required:

     "to allow full pedestrian access to the common parts of the

     demised premises from 7am to 11pm (or between such other hours

     as may be mutually agreed between the Council and the Lessee from

     time to time) daily throughout the year....in the event of

     excessive cost or vandalism the [Company] may make representation

     to the Council for a relaxation of this covenant...".

     The Centre covers 40,000 square metres and occupies a large part

(about three-fifths) of the town centre of Wellingborough.  It has four

pedestrian malls and a large central area which forms a focal point.

The Centre contains Wellingborough's main shopping facilities, in

addition to services such as the Electricity Showroom (where all of the

applicants used to buy electricity cards), the Co-operative Bank (where

the first applicant has an account) and various cafés.

     On 3 April 1991 the Company, through its solicitors, wrote to

each of the applicants to notify them that their licence to use the

Centre had been terminated and that they were banned indefinitely from

entering the Centre on the grounds of their alleged misconduct and

disorderly behaviour. Each of the letters claimed that the applicants

were: "frequently guilty of nuisance at the premises".  The letters to

each of the applicants terminated with the following passage:

     "We hereby give you notice that you no longer have permission,

     express or implied, to enter the premises, or any part thereof,

     for any purpose whatsoever from the date hereof.  Following

     receipt of this letter any entry to the premises by you will be

     a trespass and liable to civil action.

     We would advise you that [the Company has] instructed us to apply

     to the Court for an injunction restraining you from entering the

     premises in any event.  We will serve proceedings on you

     shortly."

     On 29 April 1991 the Company brought proceedings in the High

Court for an injunction to restrain the applicants from entering the

Centre, on the grounds that the applicants' behaviour had caused a

nuisance therein.  On 29 October 1991 the applicants gave undertakings

not to enter the Centre until trial or further order.  The applicants

defended the proceedings on the basis that they and all other members

of the public had a right to enter the Centre, and that the purported

revocation of the applicants' licence to enter the Centre was unlawful.

In the affidavits of each of the applicants, save that of the ninth

applicant which makes no mention of any charges, it is stated that

pending charges in respect of disorderly behaviour had all been

discharged by the magistrates.

     On 29 November 1991 the applicants amended their defence in order

to add a counterclaim.  The counterclaim alleged that the Company was

in breach of the provisions of the Race Relations Act 1968,

discriminating against the applicants on grounds of race by refusing

to allow them access to goods, facilities and services.

     On 20 November 1992, by consent, the action in the High Court was

transferred to Wellingborough County Court.  The trial commenced in

October 1993.  However a few days after the beginning of the hearing,

the judge, Mr Recorder Cox QC, ruled on various preliminary issues

concerning the nature of the applicants' licence to enter the Centre

and whether the Company could withdraw the licence and exclude the

applicants from entering, by means of an injunction.  Mr Recorder Cox

held on 6 January 1994 that the public were not bare licensees whose

rights to enter the Centre could be revoked at will by the Company.

Rather the public had an irrevocable equitable right to enter and use

the shopping malls within the Centre, whenever the doors of the Centre

were open.  However, the right of the public being an equitable one,

the Company were able to demand reasonable conduct of members of the

public, and on the suit of Company the court would have power to grant

injunctions restraining the entry of certain individuals into the

Centre who failed to comply with the condition of reasonable conduct.

     The Company appealed against the decision of Mr Recorder Cox.

On 1 February 1995, the Court of Appeal overruled the decision of

Mr Recorder Cox, holding that the Company had the right, subject only

to any issue under the Race Relations Act 1976, to determine any

licence the applicants had to enter the Centre.  The Court of Appeal

rejected and overruled the holding of Mr Recorder Cox, that the public

had an irrevocable equitable right to enter and use the shopping malls

as long as they behaved reasonably.  Having made this finding the Court

of Appeal remitted the case to the Wellingborough County Court.  On

15 November 1995 the House of Lords refused the applicants' petition

for leave to appeal against the Court of Appeal's judgment.

COMPLAINTS

     The applicants complain that the withdrawal of their licence to

enter the Centre for an indefinite duration constitutes a violation of

their right to peaceful assembly under Article 11 of the Convention.

They further complain that they were excluded from the Centre on

grounds of their race and that they were racially abused by security

guards, in violation of Article 14 of the Convention.  The applicants

claim that there is no effective domestic remedy in respect of the

violation of Articles 11 and 14, in contravention of Article 13 of the

Convention.

THE LAW

1.   The applicants complain that by being forbidden from entering the

Centre, their right of peaceful assembly under Article 11 (Art. 11) of

the Convention has been violated.

     Article 11 (Art. 11) of the Convention provides as follows:

     "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 right to freedom of assembly is one of the foundations of a

democratic society and should not be interpreted restrictively

(No. 13079/87, Dec. 6.3.89, D.R. 60 p. 256, at p. 263). The right is

applicable to private meetings and to meetings in public thoroughfares

(No. 8191/78 Dec. 10.10.79, D.R. 17 p. 119), marches (No. 8440/78 Dec.

16.7.80, D.R. 21 p. 148) and sit-ins (No. 13079/87, Dec. 6.3.89, D.R.

60 p. 263).  There is, however, no indication in the above case-law

that freedom of assembly is intended to guarantee a right to pass and

re-pass in public places, or to assemble for purely social purposes

anywhere one wishes.

     Freedom of association, too, has been described as a right for

individuals to associate "in order to attain various ends"

(No. 6094/73, Dec. 6.7.77, D.R. 9, p. 5, at p. 7; see also No. 8317/78,

Dec. 15.5.80, D.R. 20, p. 44, at p. 98).

     Moreover, the Commission notes that Protocol No. 4 to the

Convention, Article 2 (P4-2) of which guarantees the right to liberty

of movement within the territory of a State, has not been ratified by

the United Kingdom.

     The Commission notes that the applicants had no history of using

the Centre for any form of organised assembly or association.

     The Commission thus finds no indication in the present case that

the exclusion of the applicants from the Centre interfered with their

rights under Article 11 (Art. 11) of the Convention.

     It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.   The applicants complain under Article 14 (Art. 14) that they were

the subject of racial abuse by security guards at the Centre and were

banned from the Centre on grounds of their race.

     Article 14 (Art. 14) of the Convention provides as follows:

     "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."

     To the extent that the complaint under Article 14 (Art. 14)

relates to the complaint under Article 11 (Art. 11), the Commission

notes that the essence of the applicants' complaint is that they were

given no reasons for their exclusion from the centre.  They cannot

therefore complain that the reasons for their exclusion were

discriminatory.  In any event, as the Commission has found that the

Article 11 (Art. 11) complaint is incompatible with that provision, it

follows that the Article 14 (Art. 14) complaint, too, must be rejected

(see Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series

A no. 31, p. 23, para. 50).

     To the extent that the Article 14 (Art. 14) complaint relates to

the behaviour of the private security guards, and assuming that this

complaint raises issues under the Convention, the Commission notes that

an action under Section 20 of the Race Relations Act 1976 appears still

to be pending, such that the applicants have not exhausted domestic

remedies in this regard.

     It follows that this part of the application is inadmissible

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.   The applicants also complain under Article 13 (Art. 13), that

they had no domestic remedy in relation to their exclusion from the

centre.

     Article 13 (Art. 13) provides so far as relevant:

     "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 that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment

of 21 February 1990, Series A no. 172, p. 14, para. 31).  In the

present case, the Commission has rejected the substantive claims as

disclosing no appearance of a violation of the Convention.  For similar

reasons, they cannot be regarded as "arguable".

     It follows that this part of the application is 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 THE APPLICATION INADMISSIBLE.

        M. de SALVIA                        S. TRECHSEL

         Secretary                           President

      to the Commission                   of the Commission

                               A N N E X

Name                                   Date of birth

Mark Junior ANDERSON                   23 September 1967

Lesle Gabriel SEBASTIEN                8 November 1964

Roger McLEOD                           9 February 1969

Adrian McLEOD                          14 December 1972

Allan McCOURTIE                        22 October 1969

Mark Anthony FREDERICK                 10 December 1969

Jonathen Paul SHEPPEY                  6 March 1973

Simon HENRY                            16 November 1969

Wayne Winston LICORISH                 24 June 1965

Andrew Jefferson SHEPPEY               8 February 1968

 

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