European Court rejects UK Gypsy applicants

On January 18, 2001, the Grand Chamber of the European Court of Human Rights rendered judgement in five cases brought by English Gypsies in favour of the defendant, the UK Government. The cases of Chapman, Coster, Beard, Lee and Jane Smith were all primarily concerned with the right to respect for private and family life, pursuant to Article 8 of the European Convention on Human Rights. The applicants were attempting to overturn the Court’s earlier judgement in the case of Buckley v. the United Kingdom (judgement of 25 September 1996, Reports 1996-IV, p.1271); (for comment on the Buckley case, see The European Court of Human Rights Turns Down the First Case). The applicants claimed that their failure to gain retrospective planning permission to establish caravans on land they had bought constituted a violation of their right to respect for their home life, as laid down in Article 8(1), which states “Everyone has the right to respect for his private and family life, his home and his correspondence.” Their argument that living in caravans is an integral part of their ethnic identity as Gypsies was uncontested by the UK government and accepted by the Court. In addition, the applicants argued, with the support of the European Roma Rights Center, which intervened to support the complaint, that since 1998, “there had emerged a growing consensus amongst international organisations about the need to take specific measures to address the position of Roma, inter alia, concerning accommodation and general living conditions ... [and that] ... Articles 8 and 14 should be interpreted therefore in the light of the clear international concensus about the plight of the Roma and the need for urgent action.” (see ERRC amicus curiae brief in U.K. Gypsy housing case). The applicants also claimed that the lack of alternative sites to which they could reasonably be expected to move meant that their needs outweighed those of other planning concerns.

However, the Court, in a 10-7 judgement, decided that, although the Court stated that, “there is [...] a positive obligation imposed upon the Contracting States by virtue of Article 8 to facilitate the gypsy way of life,” and that “the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved,” the wide margin of appreciation accorded national authorities in planning matters decided the case in favour of the UK government. Of the Chapman case, the majority stated, “The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site.” The international consensus was found to be insufficiently concrete to guide the Court and it was also accepted that the process of decision had been fair and that the applicants had had sufficient opportunity to put their case before Planning Inspectors, who were qualified independent experts.

A joint dissenting opinion was entered by Judges Pastor Ridruejo, Bonello, Tulkens, Stráznická, Lorenzen, Fisch-bach and Casadevall, who disputed the Court’s conclusion that a sufficiently concrete international consensus does not exist. They argued that the Court’s decision failed to reflect the clearly recognised need of Gypsies to protection of the effective enjoyment of their rights. They stated that, “The long-term failures of local authorities to make effective provision for gypsies in their planning policies is evident [...] it is in our opinion disproportionate to take steps to evict a gypsy family from their home on their own land in circumstances where there has not been shown to be any other lawful, alternative site reasonably open to them.” Where alternatives were available, the minority noted that this would tip the balance back in favour of the Government.

A separate dissenting Opinion was delivered by the Maltese Judge, Mr Giovanni Bonello. He sought to expose the inappropriateness of focuss-ing on Mrs Chapman’s failure to comply with UK planning law, when the Government itself was in breach of its international commitments towards minorities, and the local authority had itself failed to comply with its duties under the Caravan Sites Act 1968. He stated:

“[...] 6) A public authority owes as great an obligation to comply with the law as any individual. Its responsibility is eminently more than that of individuals belonging to vulnerable classes who are virtually forced to disregard the law in order to be able to exercise their fundamental right to a private and family life — individuals who have to contravene the law due to the operation of the prior failures of the public authorities.

7) In the present case, both the public authorities and the individual had undoubtedly trespassed the boundaries of legality. But it was the public authority’s default in observing the law that precipitated and induced the subsequent default by the individual. That failure of the authorities has brought about a situation which almost justifies the defence of necessity. Why a human rights court should look with more sympathy at the far reaching breach of law committed by the powerful, than at that forced on the weak, has not yet been properly explained.

8) Here we are confronted with a situation in which an individual was ‘entrapped’ into breaking the law because a public authority was protected in its own breach. A court’s finding in favour of the latter, to the prejudice of the former, is, I believe, a disquieting event. A human rights court, in finding that an authority, manifestly on the wrong side of the rule of law, has acted ‘in accordance with the law’ creates an even graver disturbance to recognised ethical scales of value.”

The claims of all 5 applicants under Article 14 (prohibition of discrimination), of Chapman, Coster, Lee and Jane Smith under Article 1 of Protocol No. 1 (right to peaceful enjoyment of possessions), of Chapman and Jane Smith under Article 6 (access to the courts) and Coster, Lee and Jane Smith under Article 2 of Protocol No. 1 (right to education) were unanimously found to constitute no breach of the Convention by the Court.

(ERRC)

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