CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1993

.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. 22301/93                       by Morris McKENZIE                       against the United Kingdom         The European Commission of Human Rights sitting in private on 1 December 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber.         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 7 April 1993 by Morris McKENZIE against the United Kingdom and registered on 21 July 1993 under file No. 22301/93;         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 United Kingdom citizen born in 1928.   He is resident in South Ronaldsay and is the local Church of Scotland Minister.   He is represented before the Commission by David MacLennan, a solicitor practising in Edinburgh.         The facts of the case, as submitted by the applicant's representative and insofar as they may be deduced from documents lodged with the application, may be summarised as follows.         On 27 February 1991, police officers carried out a five hour search of the applicant's home and adjacent church, seizing various articles.   The applicant and his wife were told by the officers that they and several other adults were suspected of being members of an organised group who indulged in child sexual abuse.         The applicant and his wife were detained at a police station for nearly five hours pursuant to section 2 of the Criminal Justice (Scotland) Act 1980, which authorises detention at a police station of a person reasonably suspected of an imprisonable offence for the purpose of investigating the offence.   Five other adults on the island also had their houses searched and were detained at the police station.         The Social Work Department of Orkney Islands Council obtained Place of Safety Orders over nine children who were removed from Orkney to the mainland of Scotland where they were kept in foster care at different homes until 4 April 1991 when their return was ordered by the Sheriff.   No criminal proceedings have ever been taken against the applicant and his wife or any of the other five adults detained on 27 February.         On 20 June 1991, the Secretary of State for Scotland appointed a Public Inquiry with the following remit:         "To inquire into the actings of Orkney Islands Council (in       particular those of their Social Work Department and of their       Reporter to the Children's Panel for their area), of the Northern       Constabulary and of all persons acting on behalf of either of       them, and into the effect on [sic] those actings and the       attendant publicity in relation to:       (1)   the decision to seek authority to take to a place of safety       nine children resident in South Ronaldsay;       (2)   the removal of those children from their homes on       27 February 1991;       (3)   the detention of those children in places of safety       following the removal and until returned to their homes (and in       particular how they were cared for and interviewed while so       detained);       (4)   the decision not to continue proceedings before the Sheriff       for a finding on the evidence;       and to make recommendations."         The Inquiry heard evidence from 26 August 1991 to 25 March 1992. The evidence heard included the allegations of organised child sexual abuse on which the agencies acted but the Inquiry was not required within the terms of its remit to investigate the truth or falsity of the allegations.   As the Chairman of the Inquiry put it in his Report (para. 1.10),         "A delicate distinction then had to be preserved in relation to       evidence which could from one point of view be seen as relating       to the truth or otherwise of the allegations but which was on the       other hand relevant to an exploration of the reasons for the       actings of the agencies which were the subject of the Inquiry.       Such evidence was relevant as reflecting the beliefs of the       persons carrying out those activities.   Whether the beliefs were       true or not had to be left as a distinct and unresolved question.       That delicate distinction had to be recognised in the evidence       throughout the Inquiry and some care had to be taken to stress       that any references made to organised abuse involving the nine       children   were always intended as references to merely alleged       abuse. The matter was the more sensitive when it became apparent       that although the Crown had indicated that there was no intention       to pursue the earlier criminal investigation it was stated that       certain other police investigations were still proceeding so that       there was a necessity to steer clear of matters which might yet       require to be examined in another context. The substance of the       allegations was not explored and the adults identified in them       were and remain entitled to rely on the basic presumption of       innocence."         During the Inquiry, witnesses identified the applicant as the central figure during the alleged instances of child sexual abuse. They were asked to state publicly their view of the truth or falsity of the allegations and some witnesses were asked whether they believed the allegations made by some of the alleged victims of the abuse.   The applicant was not permitted to give evidence or lead any evidence to refute the allegations due to the terms of the remit of the Inquiry. Nor was he permitted to give any interviews to the media during the course of the Inquiry.         At no point before or during the Inquiry was the applicant notified by the authorities that there would be no further proceedings with respect to the matters that had caused him to be detained by the police.   During the inquiry it was stated that certain other investigations were still proceeding.   By the date of his application the applicant had still not been notified as to whether or not criminal investigation was still continuing.         The Inquiry reported on 27 October 1992.   COMPLAINTS         The applicant complains that the Public Inquiry determined his civil right to honour and reputation without a fair and public hearing in breach of Article 6 para. 1 of the Convention. He was unable by the terms of the remit to give evidence or counter evidence relating to the truth of falsity of the allegations against him.         The applicant complains of a denial of effective access to court to have determined the justification of an attack on his reputation, in further breach of Article 6 para. 1.       The applicant complains also that the Public Inquiry amounted to the determination of criminal charges against him without a fair and public hearing contrary to Article 6 para. 1 and without affording him the minimum right to defend himself contrary to Article 6 para. 3(c). In addition the terms of remit of the Inquiry are alleged to have violated the presumption of innocence, in breach of Article 6 para. 2 of the Convention, in that he was held out to be guilty of criminal conduct without an opportunity to prove his innocence.         The applicant further complains that there are no effective remedies before a national authority of the United Kingdom, in breach of Article 13 of the Convention.   THE LAW   1.     The applicant complains that the proceedings before the Inquiry determined his civil right to reputation and honour without affording him the guarantees of fairness imposed by Article 6 para. 1 (Art. 6-1) of the Convention which, so far as relevant provides:         "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."         The Commission recalls that the right to honour and reputation is a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) (see eg. No. 808/60, ISOP v. Austria, Dec. 8.3.62, Yearbook 5 pp. 108, 122; No. 7116/75, X v. Federal Republic of Germany, Dec. 4.12.76, D.R. 7 p. 91; No. 10877/84,   Wallen v. Sweden, Dec. 16.5.85, D.R. 43 pp. 184, 186; No. 11430/85, Sciarretta v. Italy, Dec. 16.10.85, D.R. 50, p. 191; No. 10594/83, Munro v. U.K., Dec. 14.7.87, D.R. 52, p. 158).         The Commission further recalls that for the "civil rights" limb of Article 6 para. 1 (Art. 6-1) to be applicable, there has to be a "determination" of a civil right ( a "contestation").   It is clear from the case-law of the Court that for proceedings to amount to a "contestation " it is sufficient that the outcome should be "decisive for private rights and obligations" (see eg. Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p.39, para. 94; Eur. Court H.R., H v. France judgment of 24 October 1989, Series A no. 162-A, p. 20 para. 47; Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no.97, p. 16 para. 36).         In deciding whether there is a "contestation" as to a civil right, the Court has held that the word "contestation" should be given a substantive rather than a formal meaning (Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p.20, para. 45).   The Commission must therefore consider whether the nature of the Inquiry was such as to amount in substance to a dispute, or "contestation", the outcome of which would be decisive of the applicant's civil right to honour and reputation.       The Commission notes from the terms of remit that the purpose of the Inquiry was to inquire into the actings of the various agencies involved in the matter of the removal of nine children from Orkney and to make recommendations.   Such an investigative inquiry culminating in a report with recommendations does not lead to a decision determinative of rights and in the Commission's view is not therefore a procedure to which Article 6 para. 1 (Art. 6-1) applies.         The Commission finds that, since the applicant's honour and reputation were not the subject of dispute ("contestation") at the Inquiry, neither the proceedings themselves nor the publication of the Inquiry Report "determined" the applicant's civil right to honour and reputation within the meaning of Article 6 para. 1 (Art. 6-1).         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains of a further breach of Article 6 para. 1 (Art. 6-1) in that any action for defamation against witnesses at the Public Inquiry would be met by a defence of absolute or qualified privilege, thereby denying his right of access to a court to have the justification of any attack upon his reputation determined.         The Commission recalls that it has constantly held that Article 6 para. 1 (Art. 6-1) grants the right of access to court to have determined the justification of attacks upon a person's reputation (see the line of case-law derived from ISOP v. Austria cited above).         Article 6 para. 1 (Art. 6-1) does not in itself however guarantee any particular content for "rights and obligations" in the substantive law of the contracting states (see eg. Eur. Court H.R., James and others judgment of 21 February 1986, Series A no. 98, para. 81; Eur. Court H.R., Lithgow and other judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).         In the present case, the content of the right to protect reputation may be regarded as limited in domestic law by the defence of privilege. It is therefore questionable whether the existence of this defence, the applicability and extent of which can be contested in the courts can be construed as thereby depriving the applicant of access to court in the determination of his "civil rights and obligations".         However, even assuming that the availability of the defence of privilege, whether absolute or qualified, to any action in defamation brought by the applicant is taken as constituting a limitation on the right to bring defamation proceedings and therefore as a restriction on effective access to court to vindicate the civil right of honour and reputation (see No. 17101/90, Fayed v. United Kingdom, Comm. Rep. 7.4.93, pending before the European Court of Human Rights), the Commission finds that the requirements of Article 6 para. 1 (Art. 6-1) were not violated for the reasons set out below.         The Commission recalls that the right of access to court guaranteed by Article 6 para. 1 (Art. 6-1) is not absolute, but may be regulated by States, which have a certain margin of appreciation, provided the essence of the right is not impaired (see Eur. Court H.R,, Ashingdane judgment of 28 May 1985, Series A no. 93, pp.24-25 para.s 55-57).         The Commission must therefore examine whether the limitation on access to court which results from the availability of the defence of privilege pursues a legitimate aim and bears a reasonable relationship of proportionality to that aim in the circumstances.         The Commission notes that the limitation on access created by the fact that witnesses at the Inquiry can avail themselves of the defence of privilege in any subsequent defamation proceedings pursues the aim of encouraging witnesses to be candid at the Inquiry.   The Commission considers it to be a matter of general public interest and necessary in a democratic society that governments appoint public inquiries to investigate specific instances of suspected public maladministration which have caused considerable public concern.   Publication of the Inquiry Report enables the public to be better informed about the way in which governmental services operate and is likely to lead to an overall improvement in administrative standards.   The Inquiry's recommendations may also lead to beneficial legislative or policy changes.   In the context of this general public interest in the holding of such investigative Inquiries, the Commission considers that the aim of encouraging frankness in giving evidence is legitimate.         The question remains whether the defence of privilege bears a reasonable relationship of proportionality to this legitimate aim.   In this respect the Commission notes that, as a matter of United Kingdom, the witnesses at the Inquiry would enjoy only qualified privilege in view of the investigative, non-judicial nature of the Inquiry.   There was no adversarial issue between parties to be decided by the Inquiry as if it was acting as a court of law.   A defamation action against witnesses who gave evidence at the Inquiry would therefore succeed to the extent that malice on their part could be proved.         The Commission also notes that in the conduct of the Inquiry the Chairman was bound by the rules of procedural propriety, so that any unfair decision by him affecting the applicant could have been challenged by the applicant by way of judicial review.         In the Commission's view, the fact that the witnesses' privilege was qualified and not absolute, and the availability of judicial review of the proceedings at the Inquiry, provide sufficient guarantees for persons affected which are proportionate to the general public interest in holding investigative public inquiries at which witnesses give their evidence with full candour.         In the light of these considerations, the Commission finds that the likelihood of an action for defamation being met by an effective defence of privilege represents a limitation on the applicant's right of access to court which does not impair the essence of that right, nor transgress the principle of proportionality, in the determination of the applicant's separate right to honour and reputation.   It concludes, therefore, that there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention disclosed in this respect.         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 that the Inquiry amounted to the determination of a criminal charge against him without a fair and public hearing, and that he was deprived of the right to be presumed innocent until proved guilty and the minimum right to defend himself in person, contrary to Article 6 paras 1, 2 and 3 (c) (Art. 6-1, 6-2, 6-3-c) respectively.         Article 6 para. 2 (Art. 6-2) provides:         "2.   Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         Article 6 para. 3 (c) (Art. 6-3-c) provides, so far as relevant:         "3.   Everyone charged with a criminal offence has the following       minimum rights:       ...            c. to defend himself in person or through legal assistance       of his own choosing ...."         The Commission therefore has to ascertain whether there was a "criminal charge" against the applicant   or whether he was "charged with a criminal offence" within the meaning of the above provisions.         The Commission recalls that these expressions are to be interpreted as having an autonomous meaning in the context of the Convention and not on the basis of their meaning in domestic law (see Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no.35, p. 22 para. 42).   The prominent place held in a democratic society by the right to a fair trial favours a substantive rather than a formal conception of the "charge" referred to by Article 6 (Art. 6) (see Eur. Court H.R., Adolf judgment of 26 March 1982, Series A no. 49, p. 15 para. 30).         The notion of a "criminal charge" has been defined by the Court for the purposes of Article 6 para. 1 (Art. 6-1) as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence" (see eg. Eur. Court H.R. Deweer judgment, loc. cit. p. 24 para. 46; Eckle judgment of 15 July 1982, Series A no. 51, p. 33 para. 73).   The Commission refers also to its own case-law in which it has adopted the test of whether the situation of the suspect has been affected by a possible criminal prosecution (see eg.   No. 17101/90, Dec. 15.5.92, to be published in D.R.).         The Commission notes that the applicant was informed by the police that he was suspected of having committed offences in relation to child abuse. Since then it has never been stated clearly and publicly by the competent authorities that no criminal proceedings would be brought against the applicant. In these circumstances the applicant could consider himself to be affected by a possible criminal prosecution and, therefore, to be subject to a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) from 27 February 1991.         The Commission considers however that in the present case there has been no "determination" of the criminal charge against the applicant.   The Commission has already noted that the purpose of the Inquiry was to inquire into the actings of the various agencies involved in the matter of the removal of nine children from Orkney and to make recommendations.   The Inquiry did not conduct a criminal investigation, nor did the Inquiry Report make any findings that the applicant had committed any criminal offence.   The Inquiry was not determinative of the applicant's criminal liability and therefore the criminal limb of Article 6 para. 1 (Art. 6-1) was not applicable to the proceedings before the Inquiry. On the same basis, Article 6 para. 3 (c) (Art. 6-3-c) cannot be relied upon as requiring that the applicant be afforded the opportunity to defend himself in the context of the Inquiry.         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         As regards the complaint under Article 6 para. 2 (Art. 6-2), the Commission considers that there is no appearance of a violation of this provision.   The Inquiry chairman was fully aware of the need to distinguish the relevance of evidence to the subject matter of the Inquiry from its relevance to the truth or falsity of the allegations, with which the Inquiry was not concerned.   He referred in his report in the care taken in the proceedings to emphasise that references to abuse of the children   concerned alleged abuse and that the adults identified in them were entitled to the presumption of innocence.         It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant further complains of a breach of Article 13 (Art. 13), alleging that there are no effective remedies before a national authority for their above Convention claims.   Article 13 (Art. 13) provides:         "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 Article 13 (Art. 13) only applies to claims which fall within the scope of one of the substantive provisions of the Convention (see No. 6753/74, Comm. Dec. 19.12.74, D.R. 2 p. 118, 119; No.7598/76, Comm. Rep. 17.7.80, D.R. 21 p.5, 35).   To the extent that the Commission has already found that Article 6 para. 1, 2 and 3 (c) (Art. 6-1, 6-2, 6-3-c) were not applicable to the Inquiry proceedings, it follows that there is no basis in the present case for the applicability of Article 13 (Art. 13) in conjunction with those complaints which the Commission finds incompatible ratione materiae.         In regard to the other complaints, the Commission recalls that Article 13 (Art. 13) of the Convention does not require a remedy under domestic law in respect of every alleged violation of the Convention. It only applies if the applicant can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23 para. 52).   The Commission   has found above that the applicant's remaining complaints under Article 6 (Art. 6) of the Convention are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. In the light of the reasons upon which those findings are based, the Commission also considers that the facts of the present case fail to disclose an "arguable claim" of a violation of these provisions and the applicant therefore cannot derive from Article 13 (Art. 13) of the Convention a right to a remedy for these Convention claims.   It follows that to this extent the applicant's complaint under Article 13 (Art. 13) of the Convention is manifestly ill-founded.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber          President of the First Chamber         (M.F. BUQUICCHIO)                            (A. WEITZEL)