AS TO THE ADMISSIBILITY OF
Application No. 31600/96
by Caroline Margaret BURTON
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 21 May 1996 by
Caroline Margaret BURTON against the United Kingdom and registered on
28 May 1996 under file No. 31600/96;
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 applicant is a British citizen born in 1966 and resident in
Carmarthen, Wales. She is represented before the Commission by
Jean Gould, a solicitor at the Public Law Project in London. The facts
as submitted by the applicant may be summarised as follows.
The applicant is a Romany gypsy by birth and was brought up until
1975 in the traditional gypsy lifestyle. In 1975 her parents accepted
an offer of rented accommodation from Ceredigion District Council in
what is now the County of Carmarthenshire in Wales. The applicant's
parents took the decision to move into settled accommodation having
suffered repeated evictions from sites where they had stationed their
caravan and in the absence of any provision of permanent caravan sites
by the local authority. In 1982 the family moved to rented
accommodation owned by Carmarthen District Council, now subsumed within
the unitary Carmarthenshire County Council, where they still live.
Since 1988, the applicant's father has been seeking alternative
accommodation from the local authority, the family having suffered
racial attacks, including anti-gypsy graffiti on their property.
In 1989 the applicant was diagnosed as suffering from a cancerous
tumour of her liver. Notwithstanding major surgery, the tumour
recurred in 1992 and 1994 when it was found to have spread to her
pancreas and to be incurable. The applicant's knowledge that she is
going to die in the near future has intensified her desire to live out
her last days and die in a caravan, according to her Romany gypsy
traditions.
The applicant's father has tried to find secure accommodation for
their family's travelling caravan that is presently locked up in a
caravan pound in a nearby village but in which they may not live. The
Council has attempted but has been unable to provide a location on
which the applicant's family can station their caravan. A request to
live in a mobile home owned by the council in an area known as
"Whitemill" was refused, the Council considering the mobile home
unsuitable for habitation. Minutes of a Special Meeting of the Housing
Services Committee of 4 January 1996 recorded that two tenancies in an
outlying area had been offered to the applicant's family in light of
their expressed wish to live in a rural area.
COMPLAINTS
The applicant complains that the Council is causing her anguish
by preventing her from living out her last days in the traditional
manner of a gypsy. She claims that this leads her to feel inferior and
that the treatment is therefore debasing, humiliating and an
interference with her dignity such as to constitute inhuman and
degrading treatment within the meaning of Article 3 of the Convention.
The applicant complains under Article 8 of the Convention that
because of the combined effect of legislation (principally the Criminal
Justice and Public Order Act 1994) and Government planning policy
(principally Welsh Office circular 2/94), the applicant is unable to
pursue her traditional way of life in the family home (the caravan)
that belongs to her family, without the family being in breach of the
law. She claims that this is a disproportionate interference in her
traditional way of life.
The applicant further claims that the violation of her rights
under Articles 3 and 8 was discriminatory contrary to Article 14 of the
Convention.
The applicant finally complains under Article 13 that there is
no mechanism under English or Welsh Law by which she can have her claim
that she has been denied her right to end her days in accordance with
the tradition of the minority to which she belongs determined.
THE LAW
1. The applicant complains that the failure of Carmarthenshire
County Council to find the applicant accommodation for her family's
caravan or to enable her to live out her last days in a caravan in
accordance with Romany gypsy tradition, constitutes inhuman and
degrading treatment within the meaning of Article 3 (Art. ) of the
Convention. Article 3 (Art. 3) provides as follows.
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The case-law of the Convention organs establishes that ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3). The assessment of that minimum
is relative and depends on all the circumstances of the case, such as
the duration of the treatment and its physical or mental effects (see
e.g. Eur. Court H.R., Ireland v. The United Kingdom, judgment of
18 January 1978, Series A no. 25, p. 65, para. 162).
The Commission considers that the applicant's complaints do not
disclose treatment that falls within the scope of Article 3 (Art. 3).
Whereas it is not excluded that a failure to take steps by a public
authority may engage responsibility under this provision, the
Commission finds that the local authority cannot be said in the
circumstances of this case to have subjected the applicant to ill-
treatment contrary to Article 3 (Art. 3) of the Convention.
It follows that this part of the complaint must be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant invokes Article 8 (Art. 8) of the Convention, in
respect of her wish to live her final days in a caravan, as part of an
intrinsic and important part of the traditional lifestyle of a Romany
gypsy. Article 8 (Art. 8) provides as follows:
"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."
The Commission observes that the applicant has been living with
her parents in settled accommodation provided by the Council since
1975. No interference in the applicant's present living arrangements
has been alleged or has occurred. In these circumstances the
Commission does not consider there to have been any interference within
the meaning of Article 8 (Art. 8) of the Convention.
Insofar as the applicant complains that she has not been able to
return to living in a caravan due to a failure of the local authority
to provide a site or an alternative mobile home, the Commission recalls
that although the essential object of Article 8 (Art. 8) is to protect
against arbitrary interference by public authorities, there may in
addition be positive obligations inherent in an effective "respect" for
family life (see eg. Eur. Court H.R., Marckx judgment of 13 June 1979
Series A no. 31 p. 15, para. 31). However, the Commission does not
consider that Article 8 (Art. 8) can be interpreted in such a way as
to extend a positive obligation to provide alternative accommodation
of an applicant's choosing. It recalls that the Council has made
efforts to investigate the availability of alternative possibilities
for the applicant's accommodation and that it offered tenancies in
another area in accordance with applicant's family's expressed wish to
live in a rural area. Notwithstanding the tragic situation in which the
applicant finds herself, the Commission does not consider that the
Council's inability to find a suitable official site for a caravan
constitutes a failure to respect the applicant's private and family
life or her home.
The Commission notes that the applicant also refers to the
combined effect of legislation and government planning policy as
preventing her from pursuing her traditional way of life. Insofar as
this may refer to an inability to return to a nomadic existence by
travelling throughout the country due to lack of lawful stopping
places, the Commission does not consider that the applicant can claim
to be a victim of any interference since it is not apparent that it is
her intention to return to such a lifestyle. To the extent that it is
claimed that the state of law and planning policy is such as to prevent
her taking up residence in her caravan in any unoccupied or roadside
land in the area or as to result in there being insufficient provision
of lawful official sites, the Commission considers that Article 8
(Art. 8) of the Convention cannot be construed as conferring a right
to take up residence on land belonging to others nor as imposing a
positive obligation to ensure vacancies on official sites for persons
wishing to return after a number of years to the traditional way of
life of a gypsy.
Consequently, the Commission finds on the facts submitted by the
applicant that there has been no lack of respect for her private and
family life and home. 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.
3. The applicant further complains that she has suffered
discrimination contrary to Article 14 (Art. 14) of the Convention.
That provision 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."
The Commission recalls that Article 14 (Art. 14) protects
individuals placed in analogous situations from any discrimination in
the enjoyment of the substantive rights set out in the Convention and
Protocols (see eg. Eur. Court H.R. Van der Mussele judgment of 21
November 1982, Series A no. 70). It is not however substantiated from
the applicant's submissions that she has been treated differently than
any other person in a relevantly similar position.
It follows that the applicant's complaints fail to disclose any
discrimination contrary to Article 14 (Art. 14) of the Convention.
Accordingly, this part of the complaint must be dismissed as manifestly
ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant further claims that she has no remedy for the
alleged violations of her Convention rights contrary to Article 13
(Art. 13) of the Convention. That provision provides as follows.
"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 Article 13 (Art. 13) of the
Convention requires a remedy in domestic law only in respect of
grievances which can be regarded as "arguable" in terms of the
Convention (Eur. Court H.R., Powell and Rayner judgment of 21 February
1990, Series A no. 172, p.14, para. 31). In view of the findings
above, the Commission does not consider the applicant to have
established an arguable claim under the Convention.
It follows that this part of the 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 APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy