CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 juillet 1986

.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 }  The European Commission of Human Rights sitting in private on 18 July 1986, the following members being present:                       MM. J.A. FROWEIN, Acting President                         F. ERMACORA                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                    Sir   Basil HALL                       Mr. H.C. KRÜGER, Secretary to the Commission   Having regard to Art. 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 26 August 1985 by E.F. against the United Kingdom and registered on 22 November 1985 under file No. 11862/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a British citizen, born in 1928, and currently resident in Wisbech, Cambridgeshire.   He is a gypsy.   On 11 August 1985, the applicant saw a poster displayed in a grocer's shop in Tilney St. Lawrence.   The poster concerned the proposal of the county council to install a permanent gypsy site in the vicinity and invited people to oppose the proposal.   The poster alleged, inter alia, that gypsies caused smells, left rubbish and attracted rodents and that local property would drop in value.   The applicant noticed other posters in the area and on enquiring discovered the poster had been the responsibility of a local property owner.   The applicant complained to the police, who refused to pursue the matter.   He contacted the Commission for Racial Equality who supplied him with information as to the offence of incitement to racial hatred: S 5A Public Order Act 1936: no prosecution however can be brought without the consent of the Attorney-General.   The applicant wrote to the Attorney General but was informed by a letter of 24 October 1985, that the Solicitor General in consultation with the Director of Public Prosecutions did not consider the poster infringed the Act and did not therefore intend to take any action.   The applicant is unable to take any civil action for defamation against those responsible for the poster, since an action for defamation does not lie in respect of a member of a defamed class.   COMPLAINTS   The applicant complains that he is unable to take any legal action to prevent the abusive posters being displayed.   He argues that the posters whip up hatred of gypsies and prejudice them in applying for caravan sites or council homes.   Since the Attorney General will not take any criminal action and a civil action for defamation will not lie in respect of a member of a defamed class, the applicant claims he has no means of seeking redress.   The applicant accordingly invokes Articles 6 and 13 (art. 6, art. 13).   THE LAW   1.       The applicant complains that he has no access to court in respect of posters which are insulting to gypsies.   a)   Article 6 para. 1 (art. 6-1) of the Convention guarantees to everyone the right of access to a court for the determination of "civil rights and obligations" or a "criminal charge against him". However, the right under Article 6 para. 1 (art. 6-1) to have a criminal charge determined is only a right for the accused and not a right for the victim of the alleged criminal offence, or for anyone who makes a charge against another.   Accordingly, the applicant has no right under Article 6 para. 1 (art. 6-1) of the Convention to have criminal proceedings instituted against the persons responsible for the posters in question.   The Commission refers in this respect to its constant case law (see e.g. Application No. 7116/75, D.R. 7 p. 91).   It follows that this aspect of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (art. 27-2).   b)   The applicant is also unable to bring civil proceedings in respect of his complaints.   The Commission recalls that while the concept of "civil rights" has an autonomous meaning under the Convention, the domestic law remains an important consideration in determining whether a "civil right" is at stake.   Generally speaking Article 6 para. 1 (art. 6-1) of the Convention is not concerned with creating new substantive rights in the State concerned but at giving procedural protection to rights which are recognised in domestic law.   The Commission however will not be bound by the classifications imposed by the domestic legal system and must also have regard to the object and purpose of the Convention and the national legal systems of the other Contracting States (Eur. Court H.R., König judgment of 23 April 1977, Series A no. 27, p. 24 paras. 88-89, Application No. 9840/82, B. v. the United Kingdom, p. 23 para. 89 and Application No. 10496/83, R. v. the United Kingdom, p. 25 para. 117).   The Commission recalls that in Application No. 8282/78 (D.R. 21 p. 109) the Church of Scientology in Sweden sought to bring an action for loss of reputation.   The Commission held as follows:   "The Commission notes that national legislation and the Swedish Supreme Court does not recognise such a 'right' entitling the group to seek damages in civil proceedings before national courts.   Although the Commission has held on several occasions that the right of an individual to protect his reputation can be regarded as a 'civil right' within the meaning of Article 6 para. 1 (art. 6-1), (see e.g. Application No. 7116/75, D.R. 7 p. 90) it must attach importance to the characterisation of the right of the group under Swedish law. ... Accordingly, it does not consider that the right of the group in the present case to protect its reputation can be considered a 'civil right' under Article 6 para. 1 (art. 6-1)."   The Commission notes that in the present case English law does not recognise a right for a member of a defamed class to bring an action for loss of reputation.   It also notes there is no such right guaranteed under the provisions of the Convention.   The Commission therefore concludes that there is no basis for the subject-matter of the applicant's complaint to be considered as a "civil right" under Article 6 para. 1 (art. 6-1).   It follows therefore that this complaint 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 applicant also complains that he has no effective remedy for his complaint.   It is true that Article 13 (art. 13) guarantees that everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority.   The Commission observes that this provision is only applicable where an applicant claims the violation of one of the rights and freedoms listed in the Convention.   However, the Commission has already found that the applicant's complaint under Article 6 (art. 6) falls outside the scope of the Convention and it has not found any appearance of a violation of the other rights and freedoms in the Convention.   There is therefore no basis in the present case for the application of Article 13 (art. 13).   It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (art. 27-2).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission           Acting President of the Commission          (H.C. KRÜGER)                            (J.A. FROWEIN)