CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 septembre 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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 13021/87                       by José RUIZ MATEOS                       against the United Kingdom             The European Commission of Human Rights sitting in private on 8 September 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   J. RAYMOND, Deputy 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 18 February 1987 by José Ruiz Mateos against the United Kingdom and registered on 12 June 1987 under file No. 13021/87;           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, José Maria Ruiz Mateos, is a citizen of Spain who was born in 1931.   He is currently resident in Madrid.   In the proceedings before the Commission he is represented by Carter Faber, solicitors, London.   The facts of the case, as submitted on behalf of the applicant, may be summarised as follows:           Prior to 23 February 1983, the applicant was the President of Rumasa S.A. ("Rumasa"), a company incorporated in Spain.   He also owned 50% of the shares of this company, the remaining shares being divided equally between other members of his family.   Rumasa is the parent company of a group involving hundreds of subsidiary and associated companies, including an English company, W & H Ltd., and two Spanish banks, Banco de Jerez S.A. ("Jerez") and Banco del Norte ("Norte").   In 1983, the Rumasa group employed over 60,000 people and its assets have been estimated at over 500,000 million pesetas at that time.   In addition to banking, the business carried on by companies in the group included the production and shipping of wine and sherry and the management of hotels.           On 23 February 1983, Rumasa and all its subsidiaries incorporated in Spain, including the two banks, were expropriated by the Spanish Government by Royal Decree.    This decree was replaced and amended by a law of 29 June 1983, which also vested control of the companies' management in the general board of state ownership.   The stated reason for the compulsory acquisition was that the Rumasa group had embarked on rash speculations and reckless expansions of credit on a scale which threatened the stability of the Spanish economy, the livelihood of workers and the savings of bank depositors.           The representatives of the Spanish Government now charged with the duty of managing the Rumasa group alleged that while the applicant and his family controlled the group, sums amounting to $46 million had been improperly diverted from the two Spanish banks.   The Spanish Government accordingly caused Rumasa and the two banks to institute proceedings in the High Court, Chancery Division, in London against the applicant and companies controlled by him in order to recover assets representing the $46 million, as well as a claim for damages against the applicant (Rumasa S.A. and Others v.   Multinvest (U.K.) Ltd. and Others).           During the course of these proceedings, the applicant applied for leave to amend his defence to plead that the action amounted to "an attempt to enforce a foreign law which is penal or which otherwise ought not to be enforced" by the court, "and further, or alternatively, that it would be contrary to public policy to grant the relief sought or any relief."           In the applicant's submission, there were two aspects to this defence.   First, that the Spanish decree and law were confiscatory laws made in breach of his property rights through an arbitrary and discriminatory procedure and without proper compensation.   Secondly, that but for these confiscatory laws, the applicant and his family would have retained ownership of the shares and the actions would not have been brought.           The question of whether the applicant could raise this defence was considered by the High Court together with the identical issue in another action brought against the applicant and others arising out of similar allegations concerning trade marks (Williams & Humbert v.   W & H, Trade Marks).   In this case the plaintiff had applied to strike out the same defence.   The present application is only concerned with the first action referred to above.           On 19 December 1984 Mr.   Justice Nourse refused to allow the applicant to raise this defence inter alia on the grounds that the action did not amount to an attempt to enforce Spanish law either directly or indirectly ([1986] AC 368, pp. 375-87).   An appeal to the Court of Appeal was rejected on 3 April 1985 (loc. cit., pp. 389-414). On 12 December 1985 the House of Lords dismissed an appeal against this decision, holding that the judge had been correct to refuse to allow the applicant to amend his defence, as the consideration advanced was irrelevant to the legal questions at issue (loc. cit., pp. 425-441).           The reasons for the decision of the House of Lords are set out in the judgment of Lord Templeman, who stated:           "It is ... doubtful whether the Spanish law dated         29 June 1983 can properly be described as a penal         law for present purposes, but in any event the         respondents are not seeking to enforce Spanish law."           He found that the object of the Spanish law at issue, namely the acquisition and control of the Spanish company and its Spanish subsidiaries, had already been wholly achieved, and the purpose of the action was therefore not the enforcement by the Spanish Government of Spanish law but the recovery of assets and damages under English private law by companies which were separate legal entities from the Government which controlled them.   Lord Templeman accordingly considered that:           "...Rumasa, Jerez and Norte ... are seeking to enforce         English private law which can be invoked, subject to         exceptions not here relevant, by a plaintiff of any         nationality against any defendant within the jurisdiction and         against any property within the jurisdiction."           Lord Templeman further reasoned that the necessary corollary of the applicant's argument was that the practical effect of the Spanish law was to release from liability outside Spain all such legal persons as were in breach of their civil obligations to any company comprised in the Rumasa group.   Such a proposition would be contrary to the principles of international law upon which were based the well-established rule that an English court will recognise, subject only to limitations for the safeguarding of human rights, a foreign law effecting a compulsory acquisition.   An English court would therefore normally decline to consider the merits of such a compulsory acquisition and would recognise the consequences of the change of title to property which has thereby come under the control of a foreign state.   Lord Templeman continued:   "...   if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself.   In the present case, the general rule would seem to require a refusal by the judge to embark on the problems of international law involved in the present appeal, leaving those problems to be solved at the trial if they became material.   If at the trial the appellants were cleared of any impropriety in their management of the affairs of the Rumasa group, then the problems of international law would not arise.   Moreover, even if those problems did arise I do not believe that the length of time, namely seven days, occupied by the judge in deciding to strike out the pleadings would have been added to the time required to decide other issues.   But there are special circumstances which, in my view, made it right for the judge to proceed and to make the order which he made.   If the appellants' pleadings and particulars had not been struck out, the appellants would have proceeded to demand discovery before trial and to lead evidence at the trial, harrassing to the respondents and embarrassing to the court and designed to support the allegations and insinuations of oppression and bad faith on the part of the Spanish authorities which appear in the amended defences and particulars.   These allegations are irrelevant to the ... action and are inadmissible as a matter of law and comity and were rightly disposed of at the first opportunity."           The case was then returned to the Chancery Division of the High Court for trial.   In his judgment on 12 December 1986, Mr. Justice Gibson found that the assets in question had been wrongfully misapplied by the applicant in breach of his fiduciary duties.   He accordingly ordered that the applicant should pay to Jerez the sums of $53,777,106.02, Swiss Francs 9,146,561.13 and DM 13,380,647.09 by way of compensation, plus the costs of the action.           The applicant was advised by leading counsel that as a result of the above ruling of the House of Lords he had no realistic prospect of success in an appeal against this decision.     COMPLAINTS           The applicant complains that he was prevented by United Kingdom law from arguing, as a defence to the claim brought against him in the English courts, that the action would not have been brought but for the Spanish expropriation law, and that the said law was penal and confiscatory in nature and was made in breach of his fundamental rights, including the rights protected under the Convention and Protocol No. 1 thereto.           Article 1 of Protocol No. 1           The applicant complains that the decision of Mr.   Justice Gibson of 12 December 1986 deprived him of his possessions in a manner contrary to Article 1 of Protocol No. 1.           In this connection, the applicant submits first that this decision enforced laws deemed necessary to control the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1.           In denying him the opportunity to raise the said defence, the applicant argues that United Kingdom law failed to draw a fair balance between his own interests and those of the community as a whole, as required by the Convention, and more specifically, that it failed to provide a procedure compatible with Article 1 of Protocol No. 1 in denying him a reasonable opportunity of putting his case as to why he should not be deprived of his property.   In this respect, the applicant invokes the Agosi case (Eur.   Court H.R., Agosi judgment of 24 October 1986, Series A no. 108, p. 17 at paras. 54-55) as authority for the proposition that all the relevant circumstances should be taken into account in such a determination, and submits in consequence that the reasons given by the House of Lords for refusing to allow him to raise his defence in the English courts are no answer to the complaint under Article 1 of Protocol No. 1.   In the submission of the applicant, the Spanish expropriation law was not only a relevant circumstance for the action in the English courts, but was central to its existence and outcome.           Articles 6, 13 and 14 of the Convention           The applicant complains further that in the determination of his civil rights and obligations in respect of substantial sums of money, he was prevented from raising before the courts the substance of his defence and that he was therefore denied a fair hearing, contrary to Article 6 para. 1 of the Convention.           The applicant also complains that he had no domestic remedy in the United Kingdom for his complaint that United Kingdom law wrongly deprived him of his property and denied him a fair hearing, contrary to Article 13 of the Convention.   In particular, the House of Lords was unable, as a matter of domestic law, to apply to the case of the applicant the standards and principles set down in the Convention and in Protocol No. 1.           In the alternative, the applicant complains that the United Kingdom acted in breach of Article 13 by failing to provide him with an opportunity of arguing that the Spanish expropriation law was in breach of the Convention and of Protocol No. 1.           Finally, the applicant complains that he is the victim of discrimination in that other persons whose property is the subject of litigation in the United Kingdom are able to present defences arguing that for reasons of public policy no relief should be granted to the plaintiff.   In this connection, the applicant invokes Article 14 in conjunction with Articles 6 and 13 of the Convention and with Article 1 of Protocol No. 1.   THE LAW   1.       The applicant has complained that the proceedings before the Chancery Division of the High Court which led to the decision of Mr.   Justice Gibson on 12 December 1986 amounted to a violation of his rights under the Convention and, in particular, Article 1 of Protocol No. 1 (P1-1).   The applicant has complained that the High Court was prevented by United Kingdom law from considering his defence to the action brought against him by Rumasa, Jerez and Norte and such action would not have been brought but for the Spanish expropriation law, and that the said law was penal and confiscatory in nature and was made in breach of his fundamental rights.           Article 26 (Art. 26) of the Convention           The Commission notes that in respect of the original refusal of the High Court, on 19 December 1984, to consider the above defence, the applicant subsequently appealed without success to the Court of Appeal.   He appealed again to the House of Lords which finally dismissed the issue for purposes of domestic law on 12 December 1985. It was not until one year later, on 12 December 1986, that judgment was given against the applicant in the main action taken against him by the Spanish companies.   On the basis of advice then given to him by counsel, the applicant did not appeal against that decision.           Article 26 (Art. 26) of the Convention provides as follows:   "The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken."           The Commission is of the opinion that it is not necessary in the present case to consider whether the applicant has complied with the six months rule and has exhausted all available domestic remedies since the applicant's complaints fall, in any event, to be rejected as inadmissible for the reasons developed below.   2.        Article 1 of Protocol No. 1 (P1-1)           The applicant has complained first that the decision of Mr. Justice Gibson on 12 December 1986 deprived him of his possessions in a manner contrary to Article 1 of Protocol No. 1 (P1-1),   which provides as follows:           "Every natural or legal person is entitled to the peaceful         enjoyment of his possessions.   No one shall be deprived of         his possessions except in the public interest and subject         to the conditions provided for by law and by the general         principles of international law.           The preceding provisions shall not, however, in any way         impair the right of a State to enforce such laws as it         deems necessary to control the use of property in         accordance with the general interest or to secure the         payment of taxes or other contributions or penalties."           The applicant has submitted that he was deprived of his possessions contrary to the second sentence of this provision.   In this connection he complains that he was denied a reasonable opportunity of putting his case as to why he should not be deprived of his property.           The Commission recalls that the deprivation of property referred to in the second sentence of Article 1 of Protocol No. 1 (P1-1) is primarily concerned with the formal expropriation of assets for public purposes, and not with the regulation of rights between persons under private law unless state responsibility is in some way involved in affecting their exercise (e.g.   Nos. 8588/79 and 8589/79, Bramelid and Malmström v.   Sweden, Dec. 12.10.82, D.R. 29 p. 64).           In the present case, it is clear that the United Kingdom has not directly deprived the applicant of his possessions or otherwise expropriated his property.   Nor can it be said that the United Kingdom was enforcing "such laws as it deems necessary to control the use of property" within the meaning of Article 1 of Protocol No. 1 (P1-1).   The order against the applicant was rather made by the Chancery Division of the High Court in the exercise of its jurisdiction over a private law dispute between the applicant on the one hand and three companies which he had formerly controlled on the other.   The dispute directly concerned an alleged breach on the part of the applicant of his fiduciary obligations towards those companies, in improperly diverting money from them.   In essence the High Court in its decision of 12 December 1986 decided that the applicant had no entitlement to the monies so diverted and that they should be returned with interest to the plaintiff companies.           The Commission finds that the mere fact that a judicial authority provided a forum for the determination of such a private law dispute does not give rise to an interference by the State with property rights under Article 1 of Protocol No. 1 (P1-1) (see in this context No. 10000/82, Dec. 4.7.83, D.R. 33 p. 247;   No. 11949/86, Dec. 1.12.86, to be published in D.R.)           However, the applicant contends that a State is subject to a positive obligation under Article 1 of Protocol No. 1 (P1-1) to protect the property rights of an individual in the context of a dispute with another private individual to the extent necessary to ensure that in the determination of that dispute all relevant arguments will be fully considered by the courts.   In this connection, the applicant has invoked the finding of the European Court of Human Rights in the Agosi judgment of 24 October 1986 to the effect that "... although the second paragraph of Aricle 1 [of Protocol No. 1] (P1-1) contains no explicit procedural requirements, the court must consider ... whether the procedures in question afforded the applicant ... a reasonable opportunity of putting its case to the responsible authorities" (loc. cit., p. 19, para. 55).           The Commission recalls that the Agosi case concerned a direct control of the applicant company's property by the respondent State in purported pursuance of the aims laid down in the second paragaraph of Article 1 of Protocol No. 1 (P1-1).   In the present case, however, there has been neither a deprivation of the applicant's property nor a control of the use of property by the respondent State within the meaning of that provision.   Accordingly, the considerations taken into account by the Court in the Agosi case relating to the striking of a fair balance between the interests of the individual and the interests of the State do not arise in the present case.           Having regard to the above, the Commission finds that Article 1 of Protocol No. 1 (P1-1) cannot be interpreted so as to require the United Kingdom courts to examine the applicant's claim that the Spanish law providing for the acquisition of Rumasa was penal and confiscatory.           It follows that the proceedings in question do not amount to an interference with the applicant's property rights as guaranteed by this provision and that this complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       Article 6 para. 1 (Art. 6-1) of the Convention           The applicant has also complained that as a result of the ruling that the said defence could not be invoked, he was denied a fair hearing in the action brought against him by the Spanish companies, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.           With regard to the proceedings of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with a complaint alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;   No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;   No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           The Commission notes in this connection that the question as to whether the applicant's said defence could be raised was extensively examined by the courts.   In addition to being considered in a lengthy hearing before the High Court in December 1984, the issue was the subject of two separate hearings on appeal before the Court of Appeal and the House of Lords.   The decision then reached as a matter of domestic law was that the defence sought to be raised was irrelevant to the proceedings in question and that it had been disposed of correctly by the trial judge.           Moreover, the applicant had the assistance of counsel in the presentation of his defence before the High Court and in the appeal proceedings.   There is nothing in his submissions which suggests that his counsel, or the applicant in person, was prevented from making full submissions on the question of the relevance of the said defence to the proceedings taken against him.   Nor is there any other indication of unfairness in the proceedings as a whole such as to raise an issue under Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this part of the applicant's complaint must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       Article 13 (Art. 13) of the Convention           The applicant has complained firstly that the failure of United Kingdom law to provide him with an opportunity of raising the said defence amounted to a breach of Article 13 (Art. 13) of the Convention.           Article 13 (Art. 13) states 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 it is well established that where the right claimed is of a civil character, the guarantees of Article 13 (Art. 13) are superseded by the more stringent requirements of Article 6 para. 1 (Art. 6-1) of the Convention (e.g.   No. 10358/83, Dec. 15.12.83, D.R. 37 p. 142).   It follows that no separate issue arises under Article 13 (Art. 13) in respect of this aspect of the applicant's complaint.           The applicant has argued in the alternative that the United Kingdom is in breach of Article 13 (Art. 13) in failing to provide a remedy under United Kingdom law for his complaints under Article 6 (Art. 6) of the Convention and Article 1 of Protocol No. 1 (P1-1).           The Commission recalls that for Article 13 (Art. 13) to apply the claim that a provision of the Convention has been breached must be an "arguable" one (see Eur.   Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, paras. 52-55).   The Commission notes that it has rejected the applicant's complaint under Article 1 of Protocol No. 1 (P1-1) on the basis that the judicial determination before the courts of the United Kingdom of the dispute between the applicant and Rumasa, Jerez and Norte does not interfere with the applicant's property rights.   It also recalls that it has concluded that the court proceedings were fair within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.    Against this background the Commission does not consider that the applicant's complaints under these provisions can be described as "arguable" ones for the purpose of this provision.           It follows that the above complaint under Article 13 (Art. 13) must be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.       Article 14 (Art. 14) of the Convention           The applicant has also complained that he was subject to discrimination in that other persons or companies whose property is the subject of litigation in the United Kingdom are able to present similar defences to that which the applicant sought to raise in relation to the Spanish expropriation law.           However, the applicant has not shown that persons or companies in a comparable situation to that obtaining in his case would be treated differently in the determination of a similar dispute under United Kingdom law.           The Commission therefore finds that the applicant has not substantiated his complaint of discrimination contrary to Article 14 (Art. 14) of the Convention.           It follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.         Deputy Secretary to the Commission          President of the Commission               (J. RAYMOND)                              (C. A. NØRGAARD)