CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 mars 1988

.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 } .s23A41E03 { width:36pt; display:inline-block }    AS TO THE ADMISSIBILITY OF     Application No. 12502/86 by Cornelius GINIKANWA against the United Kingdom             The European Commission of Human Rights sitting in private on 9 March 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, 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 19 May 1986 by Cornelius GINIKANWA against the United Kingdom and registered on 27 October 1986 under file No. 12502/86;           Having regard to:        -   reports provided for in Rule 40 of the Rules of Procedure of         the Commission;        -   the Commission's decision of 6 March 1987 to bring the         application to the notice of the respondent Government         and invite them to submit written observations on its         admissibilty and merits;        -   the observations submitted by the respondent Government on         24 August 1987 and the observations in reply submitted         by the applicant on 17 September 1987;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a citizen of Nigeria, born in 1921 and resident in London.   He is a barrister by profession but has been disbarred from practice.   It is this disbarment which is the subject of his application.           The facts agreed between the parties may be summarised as follows.           The applicant was called to the Bar of England and Wales by the Honourable Society of the Middle Temple in July 1973.   He commenced practice at the Bar in 1977.           On 20 June 1983 the Senate of the Inns of Court and the Bar received a complaint from His Honour Judge Slot about the applicant's conduct of the case for the defence in a rape case over which Judge Slot had presided.   After the applicant had been given an opportunity to comment on the complaint, and his comments had been received by the Senate, the applicant was informed on 7 October 1983 of the decision of the Professional Conduct Committee that the complaint would be referred to a Disciplinary Tribunal.           On 1 November 1984 the applicant was formally charged with the following three charges of professional misconduct:   "1.   Charge:   Professional Misconduct      Particulars:   Having been instructed to act on 19 May 1983 as Counsel for the defence of <D> who had been indicted at the Central Criminal Court for the offence of rape, you showed such professional incompetence as would be likely to be detrimental to the proper administration of justice in that you failed properly to prepare and master your brief in relation to the defendant's antecedent history.   2.   Charge:   Professional Misconduct     Particulars:   On 20 May 1983 when acting as counsel for the defence of <D> who had been indicted at the Central Criminal Court for the offence of rape, you showed such professional incompetence as would be likely to be detrimental to the proper administration of justice in that without seeking leave of the Court you asked questions in cross-examination of the complainant   .... relating to her previous sexual experience with other men contrary to Section 2 (1) of the Sexual Offences (Amendment) Act 1976.   3.   Charge:   Professional Misconduct     Particulars:   On or about 26 May 1983, when acting as counsel for the defence of <D> who had been indicted at the Central Criminal Court for the offence of rape, you engaged in conduct which was prejudicial to the administration of justice in that during your final speech you misrepresented the evidence by:   (a)      Suggesting to the jury that the prosecution's failure to         produce a photofit picture reflected discredit on the         police, without having laid any foundation for such a         suggestion and:-   (b)      Wrongly stating that there had been two dissimilar         photofit pictures in the case."           The applicant was also notified of the date of the hearing of the Disciplinary Tribunal which was arranged for 3 January 1985.   At the applicant's request, the date of the hearing was postponed until 11 April 1985.   On 18 March the applicant again sought and obtained a postponement of the hearing of the charges against him by the Disciplinary Tribunal.           On 8 May 1985, at the hearing of a Summons for Directions before His Honour Judge Argyle, Q.C., the date of the hearing was fixed for 30 May 1985, despite the applicant's objections to such an early hearing.   Before Judge Argyle, the applicant requested the presence before the Tribunal of his "chief accuser", i.e.   Judge Slot who had lodged the complaint against him.   However, Senate Counsel replied that it was not his intention to call the trial judge to give evidence.   The applicant apparently did not repeat his request before the Disciplinary Tribunal, or, later, before the Visitors.           On 17 May 1985, the President of the Senate first appointed a tribunal to hear the charges against the applicant.   On 30 May 1985 the applicant (who was not represented) requested and was granted an adjournment of the hearing.           On 13 June 1985, in consequence of the earlier adjournment, the President of the Senate made a second order for the appointment of a Disciplinary Tribunal to hear and determine the charges against the applicant.   The hearing was arranged for 18 July.   The members of the Tribunal were:   His Honour Judge West-Russell, a Circuit Judge (Chairman of the Tribunal); the Right Honourable the Lord Henderson of Brompton, KCB (a lay member of the Tribunal); and Mr.   Raymond Kidwell, Q.C., Mr.   Peter Rawson and Mr.   Bernard Phelvin (practising members of the Bar).           The applicant challenged the chairmanship of the Disciplinary Tribunal prior to the hearing, but the Senate refused to replace the judge and the applicant did not pursue the challenge further, on counsel's advice, at the hearing on 18 and 19 July 1985.   The applicant, who was present throughout the hearing, was represented by Counsel.   On 19 July the tribunal, by a majority of three to two, found the first of the charges of professional misconduct to have been proved.   The remaining two charges were dismissed.           The applicant alleges that the Tribunal hearing was not held in public, a number of persons acquainted with the applicant having been turned away at the door.           On 19 July 1985, in consequence of their finding of professional misconduct, and having heard the applicant's counsel in mitigation, the Disciplinary Tribunal ordered that the applicant be disbarred and expelled from the Honourable Society of the Middle Temple.           On considering the disciplinary sanction to be imposed, the Tribunal was informed of two previous findings of the applicant's professional misconduct:   First, the applicant had been admonished by the Professional Conduct Committee for his failure to appear before the Court of Appeal, a failure which appears to have been attributed to his clerk.   Secondly, the applicant had been suspended from practice for six months in 1983 for swearing a false affidavit and making a false statement during a hearing in an action involving himself and his family.           On 9 August 1985, in accordance with the provisions of the Hearings Before the Visitors Rules 1980 ("the 1980 Rules"), the applicant submitted to the Lord Chancellor a notice of appeal to the judges sitting as Visitors to the Inns of Court against the finding and sentence of the Disciplinary Tribunal.           On 17 September 1985 the applicant was notified that the period of 56 days from the date of the Disciplinary Tribunal's order, within which Rule 4 of the 1980 Rules requires a petition of appeal to be served, had expired.   On 19 September 1985 the applicant applied to the Lord Chancellor for an extension of time for the service of a petition of appeal.   The Lord Chancellor allowed the applicant a further 28 days from the expiry of the 56 day period specified by the 1980 Rules.   The applicant's petition dated 8 October 1985 was received on 14 October.   An answer was delivered to the Lord Chancellor under cover of a letter of 1 November from the Senate of the Inns of Court and the Bar.           In response to the Lord Chancellor's request made on 10 December 1985, pursuant to Rule 9(1) of the 1980 Rules, the Lord Chief Justice nominated the following judges of the High Court to sit as Visitors to the Inns of Court for the purpose of hearing the applicant's appeal:   Mr.   Justice Russell (President), Mr.   Justice Waite and Mr.   Justice Kennedy.   The applicant was notified on 22 January 1986 that the hearing of his appeal had been fixed for 5 and 6 February 1986.           On 27 January the applicant wrote to the Lord Chief Justice seeking an adjournment to enable the same counsel who had represented him before the Disciplinary Tribunal to represent him at the hearing of his appeal to the Visitors.   Having discussed the application with Mr.   Justice Skinner - who had been nominated by the Lord Chief Justice to preside at the hearing of the Visitors in place of Mr.   Justice Russell who was otherwise engaged - the Lord Chief Justice declined to grant an adjournment.           On 5 February 1986, the Visitors (Skinner, Waite and Kennedy, JJ.) heard the applicant's appeal against the finding and sentence of the Disciplinary Tribunal.           Before the commencement of the hearing of the appeal, counsel appearing on behalf of the applicant, Mr.   Nigel Hague, Q.C., made an application to the Visitors to allow "friends and members of the Nigerian High Commission to enter and witness the proceedings". Counsel who appeared before the Visitors on behalf of the Senate recalls that he did not say anything at all in relation to the application but adopted a neutral stance.   He remembered that no reasons were given for wanting the presence of these people.   He did not recall the applicant's counsel asking "for the general public to be admitted to the hearing.   Rather, the application was limited - to Ginikanwa's friends or relatives, or both, (he could not) now remember which.   It was a limited application not a general one".           Of the surviving Visitors who sat to hear the applicant's appeal (Skinner, J. having died in March 1986), Kennedy J. only faintly remembers the application being made for representatives of the Nigerian High Commission to be present and the refusal of that application.   However, Waite, J. has a more detailed recollection:           "At the outset of the hearing, Mr.   Hague (leading counsel         for Mr.   Ginikanwa) mentioned that there were people who         had no direct connection with the hearing but whom         Mr.   Ginikanwa would like to be present if that were         permissible.   I have no recollection of the High Commission         being mentioned, but I could not go so far as to say that I         am positive it was not.   Skinner J. commented that their         presence would be unobjectionable if Mr.   Ginikanwa availed         himself of his right to apply for the hearing to be held         in public and that application was granted; but that if he         wished the hearing to proceed in private, it would be         inconsistent with privacy for persons with no direct         connection with the case to be allowed to be present.           The suggestion was then taken no further - it having been         stated by Mr.   Ginikanwa's counsel or tacitly assumed by         everyone (I cannot now recall which) that the hearing,         which had already been constituted as a private hearing,         would continue in private by Mr.   Ginikanwa's own wish.           I doubt if the whole of that exchange took more than about         two minutes.   I am also reasonably certain that no grounds         were advanced for having other persons present beyond the         fact that Mr.   Ginikanwa would have liked them to be there"         (letter dated 10 July 1981 to Lord Chancellor's Department).           The applicant's representative at the hearing, Mr.   Hague, wrote in the following terms to the applicant on 23 June 1986:   "(1)   The rules governing hearings before the Visitors (the panel of High Court Judges nominated to hear appeals from the Disciplinary Tribunal of the Senate) are contained in the Hearings Before the Visitors Rules 1980, which are printed as Annex 2 of the Code of Conduct for the Bar.   The relevant rule is Rule 9(4) which reads:           'The hearing shall be in private unless the Visitors,         at the request of the appellant, direct that it shall         be held in public.'   (2)   I confirm that I certainly made a request on your behalf that your friends and members of the Nigerian High Commission who were present should be allowed to enter and witness the proceedings.   I also confirm that this request was refused.   (3)   So far as I can remember, the Visitors gave no reasons for the refusal."           The Visitors found there was strong evidence to prove the charge against the applicant.   Accordingly, they dismissed the applicant's appeal against the finding of professional misconduct. In relation to the appeal against sentence, and after having heard counsel in mitigation, the Visitors concluded that the sentence imposed by the Disciplinary Tribunal was a proper one and they dismissed the appeal against sentence.           On 4 March 1986 the Masters of the Bench of the Middle Temple pronounced that the applicant be disbarred and expelled from the Honourable Society of the Middle Temple.   The finding and sanction against the applicant were published by the Senate on 24 March 1986.     COMPLAINTS           The applicant complains of a breach of Article 6 para. 1 of the Convention on the following grounds:   1.       The disciplinary proceedings constituted a determination of his civil rights.   2.       Neither the Disciplinary Tribunal nor the Panel of Visitors constituted a tribunal established by law.   3.       The applicant did not have a public hearing before either body, neither of which gave reasons for their refusal to allow the attendance of the applicant's friends and acquaintances.   4.       The Disciplinary Tribunal was chaired by a judge to whom the applicant objected.   5.       The Panel of Visitors had refused an adjournment of the case to allow his effective representation, changed their composition at the last minute and were prejudiced against him after their pre-hearing, secret discussions of his case.   6.       The applicant was denied an opportunity to cross-examine the judge who originally lodged the complaints against him.   7.       There was an allegedly inordinate delay in the whole procedure.   8.       The sanction of disbarment imposed upon him was so manifestly disproportionate to the misconduct which was found that the hearings cannot be regarded fair.   9.       The applicant was disciplined for failing to master his brief, but Senate Counsel before the Visitors was allegedly unprepared; his handling of the case was not sanctioned.           The applicant also complains of a breach of Article 13 of the Convention as he had no court or other remedy for his complaints against the Visitors.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 19 May 1986 and registered on 27 October 1986.           After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 6 March 1987.   It decided to give notice of the application, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure, to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's allegation that he was denied a public hearing before the Panel of Visitors on 5 February 1986, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.           The Government sent their observations on 24 August 1987, after two extensions of the time-limit for their submission had been granted by the President of the Commission.   The applicant submitted his observations in reply on 17 September 1987.     SUBMISSIONS OF THE PARTIES           The Government           Part 1: The facts (mostly incorporated into THE FACTS above)           The Government submit that the evidence, including evidence given by the applicant's own counsel at the hearing, shows that, contrary to what the applicant alleges, his application to the Visitors related only to the admission to the proceedings of certain individuals and was not an exercise of his right, under Rule 9(4) of the 1980 Rules, to request that the hearing should be in public. Though it was open to him to exercise that right, he did not do so.           Part 2: Disciplinary procedures at the Bar of England and Wales           Ultimate responsibility for the regulation of the Bar of England and Wales is vested in the judges deriving their authority from the Crown.   By the common law the judges have the right to determine who shall be admitted to practise as barristers and solicitors; and, as incidental thereto, the judges have the right to suspend or prohibit from practice.   In England this power has for a very long time been delegated, as far as barristers are concerned, to the Inns of Court (see Attorney General of the Gambia v.   N'jie <1961> 2 All E.R. 504, 508 E-F, per Lord Denning).           Despite the delegation of their common law disciplinary powers to the Senate of the Inns of Court, the judges retain a supervisory jurisdiction as Visitors to the Inns (see In re S. (a barrister) <1969> 1 All E.R. 949).   The judge's visitatorial powers have been recognised and confirmed as part of the common law for over three centuries.           The historical origins and legal basis for the disciplinary arrangements of the Bar of England and Wales were considered by the Commission in the cases of S. v. the United Kingdom (No. 9502/81, Dec. 13.7.83, D.R. 34 p. 102) and P. v. the United Kingdom 12502/86   (No. 11456/85, Dec. 13.3.86 unpublished).   In both cases the Commission noted that, following resolutions of the judges and of the Inns of Court, responsibility for the regulation of discipline at the Bar was transferred to the Senate of the Inns of Court and the Bar, subject to the supervisory jurisdiction of the Visitors.           Members of the Bar of England and Wales are subject to a Code of Conduct, the purpose of which is to maintain the dignity and standing of the profession and to ensure the maintenance of high standards by all who practise in the courts.   Although the rules of professional conduct of the Bar (as of most other professions) are determined by the profession itself in the light of tradition and experience, developing over the years as circumstances change, they remain subject to the supervisory jurisdiction of the judges, as Whitford, J. observed in Re T (a barrister) <1981> 2 All E.R. 1105, 1109:           "If any rule acceptable to the Bar were held by the judges         (in whatever capacity) to be contrary to public policy or         to be liable to undermine the proper administration of         justice that rule would of course be ineffective..."           The Code of Conduct relevant to this application was the one which had been approved by the Bar in General Meeting on 15 July 1980 and published, with subsequent amendments, in January 1983 (referred to hereafter as "the 1983 Code").   The 1983 Code was in due course replaced by the code currently in force which was published in January 1985 ("the 1985 Code") but transitional provisions provided that the 1983 Code should govern the circumstances to which this application relates.           Rule 6 of the 1983 Code provided as follows:           "It is the duty of every barrister:           (a) to comply with the provisions of this Code and with the             declaration which he made on his call to the Bar;           (b) not to engage in conduct (whether in pursuit of his             profession or otherwise) which is dishonest or which             may otherwise bring the profession of barrister into             disrepute; or which is prejudicial to the administration             of justice;           (c) to observe the ethics and etiquette of his profession;           (d) if a practising barrister, or an employed barrister             acting under paragraph 183 of this code, to be competent             in all his professional activities."           Rule 7 of the 1983 Code provided as follows:           "Serious failure to comply with the duties set out in         paragraph 6 shall be professional misconduct, and, if         proved before a Disciplinary Tribunal, shall render the         barrister liable to be disbarred, to be suspended (either         unconditionally or subject to conditions), to be ordered         to repay fees..."           Part 3: The issues under Article 6 para. 1 of the Convention           The Government deny that the applicant's right to continue to exercise his profession was a "civil right" within the meaning of Article 6 para. 1 of the Convention or that the Disciplinary Tribunal or the Visitors determined the applicant's civil rights.   Accordingly, they submit that the application is inadmissible as being incompatible ratione materiae with the Convention, or, alternatively, as being manifestly ill-founded.           In any event, the Government contend that the applicant was not denied a public hearing of his disciplinary case.   Under Rule 9(4) of the 1980 Rules the applicant could have requested a public hearing, but he did not.   His application to the Visitors was limited to the attendance of his friends and members of the Nigerian High Commission, i.e. an application for a semi-private hearing to which only selected individuals should be admitted.   The Government contend that the applicant's counsel was provided with an opportunity to modify his application to enable the public to witness the proceedings, but he did not do so.           The Government invite the Commission to conclude that the applicant, far from being refused a public hearing, refrained from exercising his undoubted right to request such a hearing.   They submit, therefore, that the applicant's complaint of a violation of Article 6 para. 1 in this respect is manifestly ill-founded or, alternatively, that the facts of the case disclose no such violation.           The applicant           The applicant concedes that an application was made on his behalf for his friends and members of his High Commission to be allowed to attend the Visitors' hearing.           He contends that such an application was in effect an application that the public should be admitted since the said friends and members of the High Commission were not in any way connected with the case.   In any event, by refusing the application the Visitors deprived the applicant of his right under the Convention to have his case heard in public.           The applicant denies that Skinner J. commented that the presence of the people concerned would be unobjectionable if the applicant availed himself of his right to apply for a public hearing and that application was granted.   He points out that the comment was not recorded in any court notes, and that the recollection of other witnesses should be disregarded.           In the light of the above observations, the applicant respectfully invites the Commission to conclude that he was deprived of his right under the Convention to have his case heard in public, despite the fact that he specifically applied that members of the public should be allowed to come into and witness the Visitors' hearing.           In conclusion the applicant invites the Commission:         - to reject the submissions and arguments of the respondent         Government;         - to declare admissible and/or as being well-founded, his         complaint of a breach of Article 6 para. 1 of the Convention         in relation to the proceedings against him before the         Visitors, and to find that the facts of the present case         disclose an undoubted violation of that provision.     THE LAW   1.       The applicant's principal complaint is that he has suffered a breach of Article 6 para. 1 (Art. 6-1) of the Convention, because, allegedly, neither the Disciplinary Tribunal nor the Visitors constituted a tribunal established by law and they denied him a public hearing in the determination of his civil rights.           Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:           "In the determination of his civil rights and obligations         ... everyone is entitled to a fair and public hearing         within a reasonable time by an independent and impartial         tribunal established by law.   Judgment shall be pronounced         publicly but the press and public may be excluded from all         or part of the trial in the interests of morals, public         order or national security in a democratic society, where         the interests of juveniles or the protection of the private         life of the parties so require, or to the extent strictly         necessary in the opinion of the court in special         circumstances where publicity would prejudice the interests         of justice."           The Government first deny that Article 6 para. 1 (Art. 6-1) of the Convention applies to the present case.           The expression determination of "civil rights and obligations" in Article 6 para. 1 (Art. 6-1) of the Convention has been interpreted by the European Court of Human Rights in such cases as Le Compte, Van Leuven and De Meyere v.   Belgium to mean, first, that the evidence must disclose the existence of a "contestation" or dispute, secondly, that the dispute must relate to civil rights and obligations or, in other words, that the result of the proceedings must be directly decisive for such rights and obligations (Eur.   Court H.R., Le Compte, Van Leuven and De Meyere judgment of 1 October 1980, Series A no. 43 paras. 41-50).           The Commission finds that the first element was clearly present in this case.   A "contestation" or dispute existed between the applicant and his professional organisation, the Senate of the Inns of Court, as to whether he was guilty of professional misconduct.   The proceedings against the applicant before the Disciplinary Tribunal resulted in his being disbarred and expelled from his Inn, the Middle Temple.   There can be no doubt therefore that the applicant's right to practise as a barrister was directly at issue before the Visitors who had jurisdiction either to uphold or reject the decision and the sentence of the Disciplinary Tribunal.           As to the second element of whether the determination of the dispute in the present case was directly decisive for the applicant's civil rights and obligations, the Commission again refers to the case-law of the European Court of Human Rights.   The Court has held that the withdrawal, through professional disciplinary proceedings, of the authorisation to practise a liberal profession, albeit providing a public service (such as the medical, accountancy and legal professions) may involve the determination of rights of a private, civil nature.   Article 6 para. 1 (Art. 6-1) may, therefore, be applicable to such disciplinary proceedings (Eur.   Court H.R., König judgment of 23 April 1977, Series A no. 27 paras. 86-95, Le Compte, Van Leuven and De Meyere judgment of 1 October 1980, Series A no. 43 paras. 41-50 and the H judgment of 30 November 1987 paras. 37-48).           In the case of H v.   Belgium (Eur.   Court H.R., H judgment of 30 November 1987, Series A No. 127 paras. 46-48), the Court found, inter alia, that various aspects of the profession of "avocat" in Belgium conferred on the right asserted by H, i.e. the right to resume his practice after a period of disbarment, the character of a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission finds that no significant distinction can be drawn between the right to resume practice at the Bar and the right asserted by the present applicant to continue practice at the Bar. Moreover the aspects of the profession of Belgian "avocats" emphasised by the Court may be found in the barristers' profession at the Bar of England and Wales: Barristers at the Bar of England and Wales are officers of the Court providing a public service and contributing to the administration of justice.   Nevertheless they belong to a profession independent of the State, have private-law relationships with their clients through instructing solicitors, civil property interests in their chambers and clientèle and perform various functions, such as conciliation and arbitration, which are not exclusively concerned with the functioning of the country's courts. In these circumstances, the Commission concludes that the withdrawal of the applicant's right to practise as an English barrister involved a determination of matters which were directly decisive for his private rights.   Accordingly Article 6 para. 1 (Art. 6-1) of the Convention (the determination of civil rights and obligations) is applicable to the disciplinary proceedings in which the applicant was involved.           The next question raised by the applicant is whether there has been compliance with Article 6 para. 1 (Art. 6-1) of the Convention, and, in particular, whether the applicant's case was determined by a "tribunal established by law" with the benefit of a public hearing.           The Court stated in its judgment in the case of Albert and Le Compte that, since the professional disciplinary decisions in that case involved a dispute over civil rights, the applicants were entitled to have their cases heard by a tribunal providing the guarantees of Article 6 para. 1 (Art. 6-1) of the Convention.   It is common in the High Contracting States for disciplinary matters to be dealt with by the jurisdictional organs of professional associations.   This is acceptable provided that either these organs comply with Article 6 para. 1 (Art. 6-1) themselves or they are subject to subsequent control by a judicial body with full jurisdiction providing the necessary guarantees (Eur.   Court H.R., Albert and Le Compte judgment of 10 February 1983, Series A no. 58 para. 29).           The present applicant's case has been considered by the Disciplinary Tribunal and the Visitors.   The Commission does not find it necessary to decide whether the proceedings before the Disciplinary Tribunal were in conformity with Article 6 para. 1 (Art. 6-1) since it is satisfied that its requirements were fully met by the Visitors, for the following reasons:           It is clear from the reported decisions of the Visitors referred to in the Government's observations and the Hearings before the Visitors Rules 1980 that the Visitors act as an appeal tribunal with full jurisdiction on all questions of law and fact, including questions relating to sentence.   In this respect, therefore, the Visitors satisfy the requirement as to the scope of jurisdiction considered essential under Article 6 para. 1 (Art 6-1) by the Court in the aforementioned case of Albert and Le Compte.           As to the question of whether the Visitors may be said to be a tribunal "established by law", the Commission refers to the Sunday Times case in which the Court held as follows:           "The word 'law' in the expression 'prescribed by law' covers         not only statute but also unwritten law.   Accordingly the         Court does not attach importance here to the fact that         contempt of court is a creature of the common law and not         of legislation" (Eur.   Court H.R., Sunday Times judgment of         26 April 1979, Series A no. 30 para. 47).           The Commission considers that the same principle applies to the use of the word "law" in the expression "established by law" in Article 6 para. 1 (Art.6-1) of the Convention.           It is clear from an examination of the domestic case-law that the powers of discipline over barristers were traditionally exercised by the judges, who in turn delegated their powers to the Inns of Court and subsequently the Senate of the Inns of Court and the Bar.   The exercise of these powers, however, remained subject at all times to the visitatorial jurisdiction of the judges (see Re S. (a barrister) <1969> 1 All E.R. 949).   The Commission concludes therefore that the jurisdiction of the Visitors derives from the common law and is thus, in this sense, "established by law" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           Part of the guarantees to be provided by the tribunal established by law is independence and impartiality.   The applicant has not challenged the independence and impartiality of the Visitors, and the Commission finds no reason to doubt that they have this quality, the Panel of Visitors being composed of three judges of the High Court, nominated by the Lord Chief Justice after consultation with the Lord Chancellor (Rule 9(1) of the Hearings Before the Visitors Rules 1980).           However, the applicant has challenged the fact that the proceedings before the Visitors were not held in public.   The Commission notes that hearings before the Visitors and the pronouncement of their findings are normally in private.   Nevertheless Rule 9(4) of the Hearings Before the Visitors Rules 1980 provides that the Visitors may, at the request of the appellant, direct that a hearing shall be held in public.           In the Albert and Le Compte case the Court made the following remarks concerning the requirement of publicity in Article 6 para. 1 (Art. 6-1) of the Convention:           "The rule requiring a public hearing, as embodied in   Article 6 para. 1 (Art. 6-1) , may also yield in certain         circumstance to the will of the person concerned.   Admittedly,         the nature of some of the rights safeguarded by the Convention         is such as to exclude a waiver of the entitlement to         exercise them ... but the same cannot be said of certain         other rights.   Thus, neither the letter nor the spirit of         Article 6 para. 1 (Art. 6-1) would prevent a medical practitioner         from waiving, of his own free will and in an unequivocal         manner ... the entitlement to have his case heard in         public; conducting disciplinary proceedings of this kind         in private does not contravene Article 6 para. 1 (Art. 6-1) if         the domestic law so permits and this is in accordance with         the will of the person concerned..." (Eur Court H.R.,         Albert and Le Compte judgment of 10 February 1983,         Series A no. 58 para. 35).           The Commission endorses the principle that the person subject to disciplinary proceedings may, if he so wishes, waive his right to a public hearing, for it is likely to be in the future professional interests of the person concerned to maintain the confidentiality of such proceedings, to reduce any unwarranted damage to reputation which might otherwise occur, whether or not they result in an acquittal or a disciplinary sanction.           The Commission notes that, under Rule 9(4) of the Hearings Before the Visitors Rules 1980, the barrister facing disciplinary proceedings before the Visitors has the right to apply for a public hearing.   The extent of the discretion left to the Visitors on whether to grant such an application may raise an issue under Article 6 para. 1 (Art. 6-1) of the Convention.   However, the Commission does not consider it necessary to determine that issue in the present case because, on its particular facts, the Commission finds that the applicant has not substantiated his claim that he wanted a public hearing, with all the consequences, such as publicity, that such a hearing might have entailed.           The Government contend, on the basis of the recollection of one of the High Court Judges on the Panel of Visitors, that the applicant only requested the attendance of specific people at the disciplinary hearing.   One of the Judges then commented that the presence of these people would be unobjectionable if the applicant availed himself of his right to apply for the hearing to be held in public and that application was granted.   However, apparently the request was taken no further (p. 5 THE FACTS above).           The applicant denies this recollection of events.   He claims that his application for the attendance at the hearing of certain of his friends and members of the Nigerian High Commission was in effect an application for a public hearing.   However, the applicant's claim was not reflected in the statement of his representative, senior counsel, who only confirmed that he had made an application on the applicant's behalf for the admission of specific people to enable them to witness the proceedings (p. 5 THE FACTS above).           Given the context of the legal profession in the present case, the Commission considers that the applicant and his representative, with their professional knowledge, must be deemed to have understood the clear distinction between a private hearing (even if a limited number of people, not party to the proceedings, are allowed to attend as observers) and a public hearing.   Accordingly, they must also be deemed to have understood how an application under Rule 9(4) of the Hearings Before the Visitors Rules 1980 should have been formulated. In these circumstances, the Commission concludes that the applicant has not established that it was his wish to have a public hearing of his disciplinary case or that his conduct in the matter did not amount to an unequivocal waiver of his right to a public hearing, within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this aspect of the case must be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has next complained in the context of Article 6 para. 1 (Art. 6-1) of the Convention about the chairmanship of the Disciplinary Tribunal and the absence of any opportunity to cross-examine the judge who originally denounced his professional conduct.   However, the Commission cannot deal with these complaints because the applicant has failed to exhaust domestic remedies.   It has not been shown that he pursued his challenge to the chairmanship of the Disciplinary Tribunal at its hearing on 18 and 19 July 1985. Furthermore he did not request the Disciplinary Tribunal or the Visitors to hear the judge in question.   These aspects of the case must, accordingly, be rejected under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.   3.       The applicant has also complained under Article 6 para. 1 (Art. 6-1) of the Convention about the Visitors' refusal of an adjournment, their composition, their alleged personal bias, his representation, the Senate's representation, the allegedly disproportionate sanction imposed upo