CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 octobre 1991

.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. 14782/89                       by Avrom SHINE                       against the United Kingdom             The European Commission of Human Rights sitting in private on 10 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 14 November 1988 by Avrom Shine against the United Kingdom and registered on 15 March 1989 under file No. 14782/88;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a British citizen born in 1945.   He lives in London.   He is a music promoter and was made bankrupt in 1980.   He is represented before the Commission by Mr.   S. Grosz of Messrs.   Bindmans, solicitors, London.   The facts of the case may be summarised as follows.           The applicant was made bankrupt on the petition of a recording studio following his inability to meet a personal guarantee for payment for the use of the studio by the applicant's company, Age of Time Records Ltd. ("AOT")           In subsequent proceedings, the studio was ordered to hand over the master tapes of the recording to AOT and the applicant, apparently as director of AOT, undertook to exploit the music.           After the applicant's public examination had been concluded on 31 October 1980, it appeared to the official receiver that certain monies and transactions had not been previously disclosed.   After the applicant failed to account for these matters, the official receiver applied for the public examination to be re-opened.   Notice was given to the address for service given by the applicant.   On 25 October 1982, the Court, in the absence of the applicant, ordered that the public examination should   be re-opened and directed that the re-opened examination be heard on 1 December 1982.   The applicant failed to attend, either then or at the adjourned hearing on 2 February 1983.   The public examination was adjourned sine die.           On 1 January 1986 the official receiver applied to the court for the applicant's discharge to be considered, as he was required to do under the the provisions of Section 8 of the Insolvency Act 1976 ("the 1976 Act").   The official receiver opposed discharge.   The court refused the applicant's discharge.           In 1987 the applicant made an application for a number of orders, including an application:   "4) For an Order that the Bankrupt be discharged from Bankruptcy forthwith."           The case came before Mr.   Registrar Dewhurst in chambers on 18 November 1987.   The Registrar's notes of the hearing are headed "Application for Directions".   In dealing with paragraph 4 the Registrar wrote the word "misconceived".   The application was struck out as a whole as being "hopelessly misconceived, if not scurrilous in parts".           The applicant appealed to the Court of Appeal on the ground that the order was wrong.   In his affidavit in support of his notice of appeal the applicant deposed, inter alia, as follows:   " ... 2.    On the 18 November 1987 Mr.   Registrar Dewhurst refused my applications.   I appeal against his said refusal to make the orders which were just and reasonable for him to make.   ...   10.   I aver that the learned Registrar failed to make the Orders that he should justly and reasonably have made in all the circumstances.   ..."           The appeal was listed before the Court of Appeal to see whether in fact any requirement for leave to appeal existed.   Mr. Justice Woolf found as follows:   "With regard to bankruptcy proceedings there has been some doubt as to whether the appeals from orders made are ones which require leave ....   This in turn involves a consideration as to whether such appeals are in respect of interlocutory orders or final orders ....   In determining whether or not an order is an interlocutory order or a final order, you have to consider what will be the outcome as to the continuation of the proceedings, first of all, if the application in respect of which the order is made is successful and, secondly, if the application is unsuccessful.   It will only be final if, whatever the outcome, it finally determines the proceedings.   This position applies in bankruptcy.           In the present application, among the many orders which were being sought, was an order that the bankrupt be discharged from bankruptcy forthwith.   If the registrar had not declined to make that order and the application had been successful, then of course, that would bring the bankruptcy proceedings to an end.   However, if, as happened, the order was refused, the bankruptcy continued and the jurisdiction of the bankruptcy court .... would have continued and his bankruptcy would have to have continued until ultimately he was discharged from bankruptcy........   In consequence leave is required and Mr.   Shine has not yet received leave.   ...         ..., having come to the conclusion that leave is required in this case, I would reject Mr.   Shine's application for leave."           The judgment of the Court of Appeal was dated 25 July 1988.           A request to the House of Lords for leave to appeal was dismissed on 7 November 1988.           The applicant was automatically discharged from bankruptcy under the provisions of the Insolvency Act 1986 ("the 1986 Act") on 29 December 1989.           The bankruptcy law relevant to the present case is generally that in force at the time the applicant was adjudged bankrupt, that is, the Bankruptcy Act 1914 ("the 1914 Act") and the 1976 Act.   The automatic discharge provisions in Schedule II to the Insolvency Act 1986 ("the 1986 Act") also applied as from the date on which the Act came into force.         Section 26 of the 1914 Act provided for application by a bankrupt to the court for an order of discharge at any time after being adjudged bankrupt.   The application was, however, not to be heard until the public examination of the bankrupt had been concluded. The application was, in principle, to be heard in open court.   Section 208 (1) of the 1914 Act provided that the court could, at any time, review, rescind or vary any order made by it under its bankruptcy jurisdiction; this included power to review an order refusing discharge.           The 1976 Act made additional provision for discharge of bankrupts.   Under Section 7, the court could consider granting an automatic discharge which would take place on the fifth anniversary of the adjudication of bankruptcy.   Section 8 provided for an application by the official receiver for an order of discharge to be considered in the sixth year after the adjudication of bankruptcy.           By virtue of Schedule 11 to the 1986 Act, provision was made for the automatic discharge of bankrupts whose cases had commenced before the 1986 Act came into force.   Paragraph 13 of Schedule 11 provided that such a person would (unless the official receiver objected and the Court agreed) be discharged three years from the date of entry into force of the 1986 Act.   The 1986 Act entered into force on 29 December 1986.   COMPLAINTS           The applicant complains that the Court of Appeal and the Registrar refused to allow his case to be put before a judge.   He alleges a violation of Article 6 para. 1 of the Convention.   He also states that leave to appeal to the Court of Appeal should not have been necessary as his liberty was at issue.           The applicant also alleges violations of Articles 5 and 8 of the Convention and of Article 1 of Protocol No. 1 by virtue of the actions of the official receiver as his trustee in bankruptcy.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 14 November 1988 and registered on 15 March 1989.           On 7 June 1990 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit observations on its admissibility and merits.   The Government's observations were submitted on 7 December 1990 and the applicant's observations in reply on 12 April 1991.     THE LAW   1.       The Commission considers the applicant's principal complaint to be an allegation of a violation of Article 6 (Art. 6) of the Convention by virtue of his inability to apply for discharge from bankruptcy.           Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows:     "1.    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.   ..."           The respondent Government submit that, even if the applicant, who was discharged from bankruptcy under the automatic discharge provisions of the Insolvency Act 1986 ("the 1986 Act") on 29 December 1989, may still claim to be a victim of a violation of the Convention, the complaint is inadmissible for failure to exhaust domestic remedies.   They consider that he should have applied for his public examination to be restored, and he could then have applied for a hearing of his application for discharge, or he could have reapplied for discharge, at any time.           The Commission notes that, at the relevant time, Section 26 of the Bankruptcy Act 1914 ("the 1914 Act") provided a clear statutory right for a bankrupt to apply to open court for a discharge from bankruptcy at any time after conclusion of his public examination. Provision was made for automatic discharge in the Insolvency Act 1976 ("the 1976 Act) and the 1986 Act.   The official receiver objected to automatic discharge under the 1976 Act, with the result that the applicant was not automatically discharged in 1986.   Under the 1986 Act, however, the official receiver did not attempt to hinder automatic discharge, and the applicant was eventually discharged on 29 December 1989.           The Commission is not required to consider whether the applicant's automatic discharge constituted adequate redress for the alleged violation of the Convention as the application is in any event inadmissible for the following reasons.           As the Government point out, the applicant's complaint to the Commission is directed to his inability to have a court consider his discharge in bankruptcy, in particular his application for discharge which was considered by Mr.   Registrar Dewhurst on 18 November 1987. However, the relevant rules at the time provided for an application for discharge to be made at any time subsequent to the public examination of a debtor.   Although the applicant's public examination had been concluded in 1980, it was re-opened in 1982 on discovery of matters which had not previously been revealed.   In his observations in reply, the applicant does not deny that he was aware of the re-opening of the public examination.   He merely relies on the original conclusion of the examination on 31 October 1980.         The Commission finds that the applicant could have made an application for discharge, which should have been heard in open court, provided he complied with the requirement to have his public examination concluded.   It follows that the complaint that the applicant was not able to apply for discharge is misconceived and this part of the application is accordingly manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.        The applicant also alleges a violation of Article 8 (Art. 8) of the Convention, which provides as follows:   "1.       Everyone has the right to respect for his private and family life, his home and his correspondence.   2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."           With regard to the question of inability to apply for discharge, the Government consider that the applicant was not affected in any material way by the continuation of the bankruptcy.   In the alternative, they consider that any interference with his right to respect for private and family life, his home or his correspondence, was justified under Article 8 para. 2 (Art. 8-2) of the Convention.           The Commission recalls that it has found above that the applicant was, in fact, able to apply for a discharge, but that he had not complied with the formality of ensuring that his public examination was concluded.   However, the continuation of bankruptcy, until the applicant's automatic discharge on 29 December 1989, will inevitably have had some repercussions on his private and family life, his home or his correspondence, and the Commission accepts that these repercussions may amount to an interference with his rights under Article 8 (Art. 8) of the Convention.   However, in accordance with Article 8 para. 2 (Art. 8-2), this interference was clearly in accordance with the law (namely the 1914 Act, the 1976 Act and the 1986 Act), and there is no indication in the present case that the interference with the applicant's Article 8 (Art. 8) rights by the continued existence of his bankruptcy went any further than necessary in a democratic society in the interests of, amongst others, the protection of the rights and freedoms of others, such as the applicant's creditors and potential parties dealing with him.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant also complains of various other matters alleging further violations of Articles 6 and 8 (Art. 6, 8) of the Convention and violations of Article 5 of the Convention and Article 1 of Protocol No. 1 (P1-1).           The Commission has examined these complaints as they have been submitted by the applicant.   However, after considering them as a whole, the Commission finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions invoked by the applicant.           It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission             President of the Commission             (H.C. KRÜGER)                            (C.A. NØRGAARD)