The European Court of Human Rights Turns Down the First Case
Involving a Gypsy Applicant
A Case Report of the ERRC by Nikolai Gughinski
On September 25, 1996, the European Court of Human Rights in Strasbourg delivered judgment on the case of Buckley v. the United Kingdom, the first case ever initiated by a Gypsy applicant which has been referred to the Court by the European Commission of Human Rights. The issue addressed by the Court was whether British authorities had violated the right to respect for the home and family life (European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 8) of the applicant, Ms. June Buckley, by refusing to give her permission to station permanently, on her own land, caravans in which she had been living together with her family. The Court had also to decide whether the United Kingdom's legislation on town planning discriminated against Gypsies by preventing them from pursuing their traditional lifestyle (The 1968 Caravan Sites Act and the 1994 Criminal Justice and Public Order Act were challenged.).
By six votes to three the Court decided that the applicant's right to respect for her home (ECHR, Article 8) had not been violated, and by eight votes to one that there had not been a violation of Article 14 taken together with Article 8 of the Convention.
Details of the Case
The applicant, Ms. June Buckley, is a Gypsy by birth who has always followed the traditional lifestyle of British travelers. However, in 1988 she decided to station the three caravans in which she had been living with her children and mother on a piece of land she owned in South Cambridgeshire. June Buckley believed that stationing the caravans there would enable her to raise her children in a stable environment and therefore contribute to their proper education.
In January 1989, June Buckley obtained permission on a personal temporary basis to station the caravans on her land, but in March 1990 the District Council rejected her next application for a temporary planning permit. The District Council then issued an enforcement notice for the removal of the caravans. The local authorities argued that the continued presence of caravans on the site was harmful to the character and appearance of the countryside and detracted from the rural and open quality of the landscape. In addition, the authorities pointed out that adequate provision had been made for Gypsies elsewhere.
June Buckley appealed the decision, but her appeal was dismissed by the Secretary of State on virtually the same grounds, with the additional argument that the concentration of Gypsy sites in the area had reached the maximum desirable. Ms. Buckley did not obey the removal notice, and was found guilty by the Magistrates' court; in January 1992, she was sentenced to a fine for refusing to obey the removal notice.
In spite of the decision, Ms. Buckley refused to move the caravans and in 1994 she applied again for permission to station the caravans on her land. In November 1994, the District Council rejected the application and in December 1995, Ms. Buckley's appeal of that decision was dismissed. In addition to the arguments which were used by the authorities in 1991–1992, they now also claimed that the applicant had been offered the viable alternative of stationing her caravans at an officially designated caravan site which had been opened in 1992, several hundred meters away from her land. By 1995, Ms. Buckley had been prosecuted on two other occasions for failing to comply with the enforcement notice and for violating planning permissions' rules. On one of these occasions she had again been sentenced to pay a fine.
In February 1992, June Buckley lodged a complaint at the European Commission of Human Rights. In her complaint, as well as during the procedure before the Convention organs, June Buckley claimed that the refusal of the British authorities to grant her permission to live on her own land violated her right to respect for home and family life, as protected by Article 8 of the ECHR. Later on, during the deliberations before the Court, Ms. Buckley made an additional complaint that British legislation on planning policy does not take due respect to the traditional lifestyle of Gypsies and is discriminatory in character (ECHR, Article 14 taken together with Article 8).
The September 25, 1996 judgment of the European Court of Human Rights came after a landmark decision of the European Commission of Human Rights, which in January 1995 decided by 7 votes to 5 that British authorities had violated Article 8 of the Convention. (The Commission did not take a stand with respect to Article 14 of the Convention). The Commission's decision affirmed that the British authorities had infringed upon Ms. Buckley's right to family life and accepted her argument that „she is prohibited from living in her caravans on her own land, where her children can grow up in a stable environment and receive a continuous education", and that she was „prevented from pursuing the traditional lifestyle of a Gypsy" (Report of the European Commission of Human Rights on Buckley v. The United Kingdom, Paragraph 61).
Examining whether the measures taken by British authorities against the applicant complied with the requirements set forth by Art. 8 (2) of the Convention, the Commission agreed that while the measures had been in accordance with the law (Report of the Commission, Paragraph 71) and pursued a legitimate aim, namely preservation of the environment and public health, public safety and well-being (Report of the Commission, Paragraph 72), the commission concluded that the measures applied against June Buckley failed to meet the test of being „necessary in a democratic society" (Report of the Commission, Paragraph 85) and therefore in violation of Article 8 of the ECHR.
Considerable weight in the decision of the Commission was given to the argument that the traditional lifestyle of Gypsies is an inherent element in their right to family life. The Commission decided that by not fully taking that into account, British authorities had placed a disproportionate burden on the applicant when interfering with her right to family life.
In its judgment, the Court, like the Commission, recognized that the measures taken against Ms. Buckley interfered with her right to respect for her home. Therefore the Court concentrated on the issue of whether those measures were „necessary in a democratic society", as stipulated by Article 8, Paragraph 2 of the Convention. Although the Court admitted that on the domestic level another decision could have been taken on the merits of Ms. Buckley's request for a planning permit (Judgment, Paragraph 84), it concluded that in the government's measures, a due balance had been struck between the interests of the general community and the applicant's right to establish a home on her land. Unlike the Commission, the Court concluded that the means employed for the achievement of the legitimate aim could not be regarded as disproportionate (Judgment, Paragraph 84). In making the decision, the majority of the Court resorted to arguments derived from the procedure of the domestic regulatory framework, which in the Court's view „...contained adequate procedural safeguards protecting her (Ms. Buckley's) interest under Article 8..."
The Court also refrained from taking a stand on the British authorities planning policy (Judgment, Paragraph 75) or from considering its effect on Gypsies, arguing that the measures which were taken against Ms. Buckley were not based on either the 1968 Caravan Sites Act or the 1994 Criminal Justice and Public Order Act (Judgment, Paragraphs 59 and 88). In a powerful dissenting opinion, Judge Pettiti provided strong and convincing arguments that British authorities have violated Article 8 and Article 14 taken together with Article 8 of the Convention. His opinion, as well as the two other partially dissenting opinions, provide an interpretation of the issues which will hopefully promote more liberal case-law by both the European Court of Human Rights and domestic jurisdictions on cases involving Gypsy and Roma applicants in the future.
In his dissenting opinion, Judge Pettiti recalled that Gypsies are one of Europe's most suffering minorities and stated that, „...since the purpose of the Convention is to impose a positive obligation on the States to ensure that fundamental rights are guaranteed without discrimination," it could have provided a remedy for this situation.
Supported by dissenting opinions from Judges Repik and Löhmus, Judge Pettiti held that the planning considerations referred to in the government's argument would have been valid if the issue at stake had been peaceful enjoyment of possession (Optional Protocol I to the ECHR, Article 1). However, the same planning considerations did not justify a negative decision by the court when weighed against the right to respect for home and family life (ECHR, Article 8). By giving priority to the protection of the landscape over the protection of family life, the Court had reversed the ranking of fundamental rights. A proper balance had therefore not been achieved, in the opinion of Judge Pettiti.
Judge Pettiti also drew arguments from case law in which there had been less risk to family life but in which the Court had afforded greater protection to the applicants. He concluded that „...the Convention ought, in the case of Gypsy families, to inspire the greatest possible respect for family life, transcending planning considerations."
While considering Ms. Buckley's claim that Article 14 taken together with Article 8 were violated, Judge Pettiti stressed that the only acceptable discrimination under Article 14 is positive discrimination which is meant to achieve equality of rights through equality of opportunities. He took the position that the British legislation regulating planning policy contains a number of provisions which expressly refer to Gypsies in order to restrict their rights by means of administrative rules. Although the 1968 Caravan Sites Act was originally intended to promote acceptance of Gypsies in towns and villages, the use made of this legislation has had the opposite effect; the legislative framework contains either too many administrative obstacles or else the alternative proposals are inadequate. Since the rules are applicable only to travelers, those rules are discriminatory.
The European Roma Rights Center sides with the view expressed by Judge Pettiti that „...the European Court had, in the Buckley case, an opportunity to produce, in the spirit of the European Convention, a critique of national law and practice with regard to Gypsies and travelers in the United Kingdom that could have been transposable to the rest of Europe, and thereby partly compensate for the injustices they suffered." The ERRC also hopes that the Strasbourg institution will resort to positive application of the Convention on other cases involving Gypsy applicants.
In spite of the negative decision with respect to Ms. Buckley's application, the dissenting opinions, as well as the Commission's report, should have a limited but positive impact on the empowerment of Gypsies and Roma through law. On the occasion of Buckley v. the United Kingdom, the Convention organs affirmed that Article 8 of the ECHR gives protection to the traditional lifestyle of Gypsies as an inherent element of their right to respect for home and family life. This stand is likely to more easily allow individuals from the Gypsy and Roma minority to make their cases before domestic jurisdictions, as well as before the European Convention organs, in cases which involve violation of rights protected by Article 8 of the Convention.