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. 15601/89                       by M.O.                       against Ireland             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 5 December 1988 by M.O. against Ireland and registered on 12 October 1989 under file No. 15601/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to:   -        the Commission's decision of 6 September 1990 to bring         the application to the notice of the respondent Government         and invite them to submit written obsrvations on its         admissibility and merits;   -        the obsevations submitted by the respondent Government         on 20 December 1990 and the observations in reply submitted         by the applicant on 2 May 1991;           Having deliberated;           Decides as follows:     THE FACTS           The facts, as submitted by the parties, are as follows:           The applicant is an Irish citizen born in 1944.   He is a civil servant and resides at present in Dublin.   He is married to a citizen of the Soviet Union and they have two children (G. and M.) born in 1977 and 1979.           In 1988 the applicant's wife commenced proceedings before the Circuit Court for divorce a mensa et thoro (judicial separation) on grounds of cruelty and seeking custody of the children.   The applicant counterclaimed, also seeking custody of the children and an injunction restraining his wife from residing in the family home.   On 11 May 1988, after the hearing of evidence and the submissions of the parties, the Circuit Court dismissed both the applications of the applicant and his wife, ordered that the children be returned to thefamily home and awarded custody of the children to both the applicant and his wife.           On 12 May 1988 his wife made an unsuccessful attempt in the High Court to stay the implementation of the Circuit Court's Order. However an appeal by way of rehearing against the decision of the Circuit Court was listed for hearing before the High Court on 1 June 1988.           Before the appeal hearing could take place, the applicant states that he was obliged to discontinue with the services of his legal representatives since he was not in a financial position to pay their costs.   By letter dated 15 April 1988, the applicant's solicitor informed the applicant that she felt it necessary to apply to the court to come off the record since it appeared he had lost confidence in her and that their solicitor-client relationship had totally broken down.   By letter dated 20 May 1988, the applicant's solicitor sent her bill of costs requesting payment before the court hearing and warning that further fees would be due for that hearing.   When the hearing came before the High Court the applicant informed the judge that he was not legally represented and sought an adjournment to enable him to seek legal aid.   The judge summoned the applicant's solicitors to court to clarify the position and they informed him that they had not requested payment of their fees and were not abandoning the case but that the applicant had informed them that he did not intend to pay their fees and was dispensing with their services.           The applicant's request for an adjournment was refused by the judge on the basis that it would take too much time to process a legal aid application and that the application had an emergency nature in that it concerned allegations of cruelty and physical assault and the welfare of children was involved.   The judge noted that the applicant had not yet applied for legal aid, did not know whether he qualified for legal aid or not and was unable to say what length of adjournment he required.   The judge did state that an adjournment would be granted if, in the interim, the applicant would vacate the family home and give custody of the children to his wife.   The applicant considered that these conditions were prejudicial to him and offered to maintain his wife outside the home if she did not wish to remain there.   However this proposal was not accepted.   The applicant was granted leave of half a day to ask his former legal advisers if they would represent him or to seek new representation.   He was also refused leave to appeal against the judge's decision not to adjourn the proceedings.           The proceedings took place over a period of 7 days from 2 to 10 June 1988.   The applicant conducted his case in person.   His wife was represented by solicitor and counsel.   The applicant examined and cross-examined witnesses himself and had submitted a written document outlining his version of his family situation.   The judge states from his notes of the proceedings that he allowed the applicant a great deal of leeway and allowed him full range in both questioning and cross-examining, far greater range than he would have allowed counsel. On 10 June 1988 the High Court reversed the decision of the Circuit Court and granted his wife a divorce a mensa et thoro, ordered the applicant to leave the family home, to pay maintenance of £100 per week, to lodge his passport with the court and not to remove the children from the jurisdiction of the court.           On 13 June 1988, the applicant applied for legal aid in respect of the outstanding issues relating to custody and access to the children.   Legal aid was refused as he was not eligible, having regard to his level of earnings.           In a further decision of 21 June 1988, the High Court granted the applicant access to his children during specified periods at the weekend.   On this occasion the applicant informed the court that he had now obtained the services of legal representatives who were not able to appear because of prior commitments.   The remainder of the case concerning the custody and welfare of his children was then adjourned until 20 July 1988 when he was again legally represented.           Following the High Court hearing the applicant applied for special leave without pay for domestic reasons which was granted. The applicant informed the court on 20 July 1988 that he was unable as a result to continue to pay maintenance.   Following submissions from the applicant's counsel as to his financial position, the High Court refused to vary the Order for maintenance.   The applicant states that as a result he had to return to work or face committal to prison for contempt of orders of the High Court.           The case continued to be adjourned at intervals in the High Court without any change being made in the original High Court Orders until 24 April 1989 when it was referred back to the Circuit Court for the determination of the issue of custody of his children. The case was listed for hearing on 28 and 29 November 1989 before the Circuit Court.   However, his wife's legal representatives were granted an adjournment on 28 November 1989 on the basis that they were not ready for the hearing.           In the meantime, on 24 November 1989 an interim protective custody order had been obtained in the Dublin District Court by the Eastern Health Board to remove his son G. from the family home and place him in an institution for disturbed adolescents.           On 31 October 1990, the case was due to come before the Circuit Court.   The applicant's lawyers applied on 30 October 1990 to come off the record and the court refused the applicant's application for an adjournment.   The applicant applied for judicial review of this refusal on the ground that the court erred in rejecting his evidence that he was not medically fit to conduct his own case.   This application was refused and his appeal to the Supreme Court dismissed on 19 December 1990.         On 31 October 1990, the Circuit Court made a small adjustment to the maintenance payment and continued the position as regarded access and custody.   COMPLAINTS           The applicant complains under Article 6 paras. 1, 2, 3 (b) and (c) of the Convention that he did not receive a fair hearing before the High Court in complicated family law proceedings.   He states that he was compelled by the court to conduct his own case and did not have either the necessary experience or sufficient time or facilities to do so.   In addition, he had to conduct his case against a professional and experienced legal team.           He has submitted a medical opinion dated 16 June 1988 from a doctor who was present at the hearing which concludes that it was "medically unsuitable and dangerous to his health to have subjected him to such a stressful situation, especially in view of the short space between the High Court and the Circuit Court hearings".           He further complains under Article 3 of the Convention that it was inhuman and degrading treatment to require him to participate in a stressful hearing against experienced legal experts.           Finally, the applicant complains under Article 4 of the Convention that he has been required by the High Court to return to his former employment in order to support his family.   He considers that this amounts to forced labour contrary to this provision.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 5 December 1988 and registered on 12 October 1989.           On 6 September 1990, the Commission decided to communicate the applicatiOn to the Government pursuant to Rule 42 (2) (b) of the Commission's Rules of Procedure (former version) and to invite them to submit written observations on the admissibility and merits.           The Commission's observations were submitted on 30 December 1990 after an extension of the time-limit and the applicant's observations were submitted on 2 May 1991 after an extension of the time-limit.           The Commission decided to grant the applicant legal aid on 18 January 1991.   THE LAW           The applicant has complained that in the family law proceedings before the High Court, he was refused an adjournment to enable him to secure legal representation and that he was obliged to represent himself in these proceedings.   He considers that as a consequence he did not have sufficient time and facilities to prepare his case and did not have a fair hearing as required by Article 6 para. 1 (Art. 6-1) of the Convention.   He also invokes Articles 6 paras. 2, 3 (b) and (c), 3 and 4 (Art. 6-2, 6-3-b, 6-3-c, 3, 4) of the Convention.   Article 25 (Art. 25) of the Convention           The Government submit that the applicant cannot claim to be a victim of a violation of the Convention since inter alia he was himself seeking a divorce a mensa et thoro (judicial separation) and cannot be said to be prejudiced by the result of the proceedings. They submit on this point also that the judge offered the applicant an adjournment on condition but that the applicant refused it.   In these circumstances, the Government argue that the applicant cannot complain of unfairness of the proceedings.           The Commission notes however that while the applicant was making a cross-application for divorce a mensa et thoro (judicial separation), the court in fact granted the application by his wife for judicial separation on the grounds of the applicant's cruelty, with the result that he was regarded as the "guilty party", which the applicant alleges can have consequences in matters of succession, occupation of the family home, custody and access.   Accordingly, the Commission finds that the applicant can claim to have been prejudiced by the court's decision.   Similarly, while the Court did offer an adjournment to the applicant, the Commission notes it was on condition that the applicant leave his home and children in the interim.   The applicant states that he found this unreasonable in light of the fact that his wife's application had already been refused at first instance.   The Commission finds that whether reasonable or unreasonable, it was prejudicial to the applicant.   It is however more relevant to the general assessment of the fairness of the proceedings than to the question of whether the applicant can claim to be a victim of the Convention.   The Commission concludes that the application cannot be dismissed on this ground.   Abuse of petition           The Government also claim that the application constitutes an abuse of petition in that the applicant, inter alia, has sought to mislead the Commission and since his case is unmeritorious.   The Commission finds however no indication that in presenting his case from his own point of view the applicant has deliberately misled the Commission or misrepresented the facts.   The Commission also finds no indication that the contents of the application are of such a nature as to render it abusive.   It follows that the application cannot be dismissed on this ground.   Article 26 (Art. 26) of the Convention           The Government have submitted that the applicant has failed to introduce his complaint within six months as required by Article 26 (Art. 26) of the Convention.   They submit that the decision which gave rise to the applicant's complaints was the refusal of an adjournment of the High Court on 1 June 1988 whereas the applicant introduced his complaint on 5 December 1988, more than six months later.           The Commission recalls however that the applicant's main complaint centres on the fairness of the proceedings before the High Court.   In the circumstances of this case, the Commission finds that the six months period must be taken as starting from the end of those proceedings, namely 10 June 1988, in which case the applicant has introduced his application within the six months' time-limit as required by Article 26 (Art. 26) of the Convention.   Article 6 (Art. 6) of the Convention           Article 6 para. 1 (Art. 6-1) of the Convention provides, in its first sentence:           "In the determination of his civil rights and         obligations or of any criminal charge against him,         everyone is entitled to a fair and public hearing         within a reasonable time by an independent and         impartial tribunal established by law."           Article 6 paras. 2, 3 (b) and (c) (Art. 6-2, 6-3-b, 6-3-c) of the Convention apply only to criminal proceedings and are therefore not applicable to the family proceedings in issue in this case.   The Commission will however examine the complaints made by the applicant in the context of the fairness of the proceedings under Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention does not guarantee that both parties to any proceedings must necessarily be represented by counsel.   The case-law of the Commission and the Court has however established that the effective right of access to court guaranteed by Article 6 para. 1 of the Convention may require that legal assistance be given to an applicant who otherwise would not be able to present his case properly and satisfactorily, having regard to its complexity or his emotional involvement (see e.g.   Eur.   Court H.R., Airey judgment of 9 October 1979, Series A no. 32).           The Commission notes in this context that the applicant does not complain that he should have been granted legal aid for which he was not eligible on financial grounds, or that the refusal thereby deprived him of access to court.   He complains that he was refused an adjournment to seek legal representation and was compelled to represent himself, with the result that the proceedings were unfair.           It appears, however, from his correspondence that the applicant was aware that his solicitor intended to come off the record and required payment but that he took no steps to secure representation elsewhere until after the hearing.   The Commission notes that the applicant requested an adjournment to seek representation and to apply for legal aid and that an adjournment was in fact offered on condition that the applicant left the matrimonial home and gave custody of the children to his wife pending the hearing. While the applicant rejected this offer, the Commission finds that it was not an unreasonable exercise of the discretion of the judge bearing in mind the subject-matter of the hearing (allegations of cruelty), and that the applicant had appeared to require an indefinite adjournment and yet had taken no steps to apply for the legal aid, which was the alleged purpose of the adjournment.   In addition, the Court in any event granted a short adjournment until the next day for the applcant to seek representation.   The Commission also notes that the applicant is articulate and well-educated and that according to the judge, he was given   full scope in examining and cross-examining witnesses.   While the applicant complains of ill-health, it appears that he made no complaint to the Court nor presented to the court any doctor's certificate.           Having regard to the above circumstances, the Commission finds no indication that the refusal of the judge to allow an unconditional adjournment to the applicant thereby rendered the proceedings unfair contrary to Article 6 para. 1 (Art. 6-1) of the Convention.           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.   Articles 3 and 4 (Art. 3, 4) of the Convention           The applicant has also complained that he suffered inhuman and degrading treatment contrary to Article 3 (Art. 3) of the Convention as a result of being obliged to represent himself in stressful circumstances and that he has been subjected to forced labour contrary to Article 4 (Art. 4) of the Convention since he has been obliged to return to work in order to support his family.           The Commission has examined the applicant's complaints as they have been submitted by him.   However, after considering the case 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 Convention.           It follows that these complaints are 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)