CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 25290/94                       by Mandy MALONE                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 28 February 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 13 June 1994 by Mandy MALONE against the United Kingdom and registered on 23 September 1994 under file No. 25290/94;        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 facts as submitted by the applicant may be summarised as follows. The applicant is 27 years old, is wheelchair bound, suffers from rheumatoid arthritis, is a registered disabled person and resides in Lincolnshire.        Prior to 1991 the applicant and others had rented a council house in London from London Borough Council ("the Council"). Those persons attempted to purchase the house from the Council as part of a council house purchase scheme. In December 1991, and prior to the purchase completing, the Council issued possession proceedings on the basis of perceived fraud on the part of the potential purchasers. Woolwich County Court in London was seised of the case and there were, in all, eleven defendants including the applicant.        On 19 February 1992 judgment was given against the defendants but this judgment was set aside on 14 April 1992. The applicant claims that she had to attend the latter hearing because the prosecution refused to accept affidavit evidence, that she had to leave home at 4.30 am to get to court at 10.30 am, that it involved a 950 kilometre round trip, that her case was not heard until 1.00 pm and that due to her disablement the court appearance caused her significant hardship.        In June 1992 the applicant wrote to Woolwich County Court clerk requesting that the case be transferred from London on the basis that she was concerned that the relevant judge and certain persons in the Council were freemasons which would lead to political interference with the court by the Council. She also asked that her disability be taken into account and that it would make her life much easier if the case was heard in a court nearer her home.        On 2 September 1993 Woolwich County Court made a number of directions in relation to the proceedings and ordered that the case had to be set down for trial within eight weeks. The applicant was present and was legally represented at this hearing. She claims that her journey by car to London for that hearing caused her severe discomfort and that she was confined to bed for four days thereafter and required medical assistance.        On 10 September 1993 the applicant issued an application for the transfer of these proceedings to Grimsby County Court. On 10 September 1993 she also wrote to Woolwich County Court clerk requesting, inter alia, the transfer of the case and a jury trial. On 17 September 1993 the applicant also communicated by letter with the judge of Woolwich County Court making various complaints about the Council and the location of the proceedings. On 23 September 1993 the applicant issued another application in Woolwich County Court again requesting the transfer of the case and various orders in relation to a jury trial, her previous solicitors and other procedural matters.        The applicant also filed an affidavit dated 19 October 1993 referring, inter alia, to her difficulty in attending hearings in London and exhibiting medical evidence (as to her severe rheumatoid arthritis, as to her being largely wheelchair bound and about the pain a long journey would involve). She also claimed that she had "no idea" whether Woolwich County Court had facilities for wheelchairs but that Grimsby County Court which was near to her home had such facilities.        On 26 October 1993 the applicant's application, to transfer the proceedings to Grimsby County Court, was refused. The recorder who heard the application referred to the medical evidence before him, the earliest of which was dated January 1992, and concluded that the applicant had been living in Lincolnshire since that date. He noted that no application had been made to transfer the case until September 1993 and on that ground alone he could have refused the application.        The recorder also noted that the applicant failed to make any mention of a transfer on 2 September 1993 when "final directions" had been given, at which hearing the applicant was legally represented and present in person. The recorder indicated that he was satisfied that a transfer would place the Council at intolerable expense and that the same did not apply to the applicant. Since the balance of convenience favoured a trial in London the recorder refused the application. The applicant was represented by a friend at this hearing and attended the hearing. She submits that on that day she again suffered greatly due to the lack of lifts and toilet facilities for the disabled.        The applicant appealed, inter alia, the recorder's decision of 26 October 1993 to the Court of Appeal.         On 26 January 1994 Woolwich County Court heard an application of the applicant to dismiss the Council's proceedings (at which hearing the applicant appeared in person). The application was dismissed. The applicant was attended by a carer and claims that her carer had to enlist the help of two court officials to lift her up the steps of the court and up further steps to the waiting room. The hearing, which was due to take place on the second floor, was changed to the ground floor to accommodate the applicant and did not begin until 2.00 pm. During the time she had to wait the applicant claims that, due to the lack of toilet facilities for the disabled, she endured excruciating discomfort. She also claims that the hearing was a source of additional distress, the applicant having had to present her case from her wheelchair.        On 4 February 1994 the applicant's appeal to the Court of Appeal was heard and dismissed. The applicant was legally represented and was present at the hearing. The court noted the reasons expressed by the recorder on 26 October 1993 for rejecting the application to transfer and further noted that no approach had been made to the Council or the other defendants to make arrangements to accommodate the applicant when she gave evidence so that she need not spend a night away from home. He further noted a conflict of fact, as to the existence or not of disabled facilities at Woolwich County Court, and the arrangements made for a ground floor hearing the previous time the applicant was in court. The Court of Appeal concluded as follows:        "It is always difficult to accommodate the interests and      considerations of all those involved. We would expect and hope      that any judge would pay considerable attention to an application      made by someone who is disabled and who found it difficult to      travel to a particular court, but it is quite another matter to      say that no judge in the circumstances of this case, bearing in      mind the lateness of the application and the other interests      involved, could have reached the conclusion that the recorder      did."        The applicant also claims that her appeals before the Court of Appeal were the last in a list of five before the court that day and that, though the case was listed for 10.30 am, it was not held until 4.00 pm causing the applicant hours of suffering while waiting having already travelled to get to court. The path to the court was described by the applicant's carer as "a somewhat hazardous ten minute round- about obstacle course". The applicant claims that she was "manhandled" into an upper floor court and that there were no lifts.        On 20 April 1994 the applicant wrote to the civil appeals officer at the Court of Appeal complaining that her applications to the Court of Appeal had been made ex parte and that, since she was only notified three days before the hearing of those applications that they were to be heard inter partes, she had no opportunity to withdraw the applications - which she would have done as an inter partes hearing indicated to the applicant that the court had already decided the appeals against her. The civil appeals officer responded on 5 May 1994 explaining that appeals which include a stay of execution (as hers did) are not ever listed ex parte.        On 17 and 18 May 1994 the main hearing in the proceedings began and it ran at Woolwich County Court over two days before Judge Harris but it was adjourned as Judge Harris was not available to finish the case the following day. On 14 September 1994 Judge Harris set the remainder of the case down for hearing but this time at a crown court in London. It was explained, by letter dated 21 September 1994 to the applicant's legal representatives from the judges' clerk, that the case was to be heard in a crown court because Judge Harris had been transferred to that new court.        On 28 November the applicant issued three applications for judicial review of numerous decisions of the courts to date.        In December 1994 Judge Harris heard the remainder of the action and held in favour of the Council. On 12 December 1994 a single judge of the Court of Appeal refused leave to apply for judicial review and on 19 January 1995 the full Court of Appeal also refused leave to so apply (having before it, it appears, amended applications for judicial review dated 16 January 1995).        The applicant was granted legal aid but in or around January 1994 legal aid was discharged. The applicant appears to have encountered difficulties with numerous solicitors firms. She was legally represented for the proposed purchase of the house, she briefed another firm of solicitors for the possession proceedings, she then left that firm and briefed another firm in January 1993 (with whom she stayed for approximately six to eight months) and had briefed another firm by February 1994 which firm no longer acts for her.   COMPLAINTS        The applicant has numerous complaints under Article 6 of the Convention in relation to the fairness of the proceedings and the decisions against her. She invokes, in particular, Article 6 paras. 2 and 3 (a), (b), (c) and (d) of the Convention.        The applicant also complains under Article 7 of the Convention that she was found guilty of a criminal offence without being charged with any such offence, under Article 8 of the Convention about interception of her mail and about the interference by a public authority with her right to buy the council house she had rented with others, under Article 14 of the Convention that she was discriminated against as a litigant on grounds of her disablement, under Article 3 of the Convention about the effect on her of all of the above matters and about, in particular, the impact on her of the courts' handling of her disability and under Article 13 of the Convention that she had no effective domestic remedy.   THE LAW   1.    The applicant complains under Article 6 (Art. 6) of the Convention that the proceedings and decisions against her were unfair. She submits, inter alia, that the courts' alleged failure to deal properly with her disability put her at a material disadvantage in the defence of the case, that the hearings were arranged and conducted unfairly (in that, inter alia, she did not receive appropriate notice of various hearings and that there was collusion between the Council and the courts) and that she was denied a right to a jury. The applicant invokes, in particular, Article 6 paras. 2 and 3 (a), (b), (c) and (d) (Art. 6-2, 6-3-a, 6-3-b, 6-3-c, 6-3-d) of the Convention.        Since paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention refer to persons charged with criminal offences and since the applicant was not so charged, the Commission has considered the above complaints of the applicant within the context of Article 6 para. 1 (Art. 6-1) of the Convention which reads, insofar as relevant, as follows:        "1. In the determination of his civil rights and obligations ...      everyone is entitled to a fair ... hearing within a reasonable      time by an independent and impartial tribunal established by      law."        The Commission would, in the first place, note that the applicant was legally aided for the most part of the proceedings and that, if she was unrepresented at certain stages during the proceedings, it was as a result of difficulties she encountered with a number of firms of solicitors.        Insofar as the applicant complains that the proceedings were rendered unfair by the courts' treatment of her disability, the Commission notes the reasons given by the recorder, and later by the Court of Appeal, for refusing her application to transfer the case from Woolwich County Court to a court nearer her home with disabled facilities. In particular, both courts relied heavily on the applicant's delay in bringing the application - the applicant was found to be resident in Lincolnshire from at least January 1992, was legally represented from then and did not make an application to transfer the proceedings until September 1993 at which stage the court had already made orders relating to the setting down of the action (which proceedings involved, as well as the Council, ten other defendants).        The recorder and the Court of Appeal also referred to the lack of an application for such a transfer even during an appropriate directions hearing (2 September 1993), to the failure by the applicant to approach the Council and other defendants to see if appropriate arrangements could be made for her as regards giving evidence and to the interests of all others involved in the case.        Other than those reasons expressed by the courts, the Commission notes that the applicant has not demonstrated that she took any practical steps towards alleviating any difficulties her disability may have caused such as applying to the court to have interim applications concerning her listed first or at least earlier on the courts' lists or forewarning the relevant courts of her limitations due to her disability with a view to making any practical arrangements with the courts for her attendance.        The Commission therefore considers that the applicant failed to appropriately bring to the attention of the court her difficulties with regard to attendance at court due to her disability and as such considers that the State cannot be held responsible for those difficulties (see, mutatis mutandis, Eur. Court H.R., Stanford judgment of 23 February 1994, Series A no. 282).        The Commission also considers that the applicant has failed to substantiate her complaint that there was collusion between the courts and the Council or that the hearings were otherwise arranged or conducted unfairly.        As regards the applicant's complaint about the decisions against her, 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 accordance with 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 also recalls that it is not competent to deal with an application 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's examination of the applicant's complaints does not disclose any such issues.        Accordingly, the Commission considers the complaints of the applicant under Article 6 (Art. 6) of the Convention to be manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention save for the applicant's complaint in relation to the denial of a jury trial which is incompatible ratione materiae with the provisions of the Convention, there being no right to a trial by jury guaranteed by the Convention (No. 8288/78, Dec. 10.10.80, D.R. 22, p. 51).   2.    The applicant also complains under Article 7 (Art. 7) of the Convention that she was found guilty of a criminal offence without being charged with a criminal offence.        There is no evidence that the applicant was either charged with or found guilty of any criminal offence. However and insofar as the applicant raises this matter because the remainder of the main hearing was heard in December 1994 in a crown court (in which criminal cases are normally heard), the Commission notes that the case was so transferred in order to ensure that Judge Harris, who had already presided over the first two days of the hearing, would so preside over the remainder - a procedural matter which the Commission considers would benefit the continuity of the proceedings.        The Commission therefore considers this complaint also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant further complains that her mail has been interfered with and about a denial of her right to buy the council house which she rented with others. She invokes Article 8 (Art. 8) of the Convention which, insofar as relevant, reads as follows:        1. Everyone has the right to respect for ... 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 for the protection of the rights and freedoms      of others.        The Commission considers that the applicant has not substantiated her complaint that her mail has been interfered with. In addition, the right to respect for an applicant's home does not include the right to be allowed to become the owner of that home.        Insofar as the applicant complains about a lack of respect for her home as a result of the issuance of possession proceedings by the Council, the Commission recalls that any interference with the right to respect for private life must be in accordance with the law, pursue a legitimate aim and the means employed must be proportionate to that aim (see, for example, Eur. Court H.R., Chappell judgment of 30 March 1989, Series A no. 152).        The Commission notes that the house in question was rented by the applicant and the other defendants to the proceedings from the Council, that those persons proposed to purchase the house under a council house purchase scheme, that the Council did not go through with the sale on the basis of suspected fraud and that the Council subsequently issued successful possession proceedings based upon fraud on the part of the potential purchasers.        In such circumstances, and even assuming that there was an interference with the applicant's right to respect for her home by the issuance of proceedings, the Commission considers that it was in accordance with the law, pursued a legitimate aim (prevention of fraud within a council house purchase scheme) and demonstrated a reasonable relationship of proportionality between the means employed and the aim sought to be realised (re-possession on finding against the defendants).        In such circumstances the Commission considers the applicant's complaints under Article 8 (Art. 8) of the Convention manifestly ill- founded save insofar as the applicant's complaints relate to a denial of a right to buy the house she rented with others, which is incompatible ratione materiae with the provisions of the Convention.   4.    The applicant also complains that she was discriminated against as a disabled litigant and invokes Article 14 (Art. 14) of the Convention which, insofar as relevant, reads as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as ... or other status."        Since Article 14 (Art. 14) of the Convention protects individuals in analogous situations from discriminatory treatment in the exercise of the rights and freedoms guaranteed by the Convention, the Commission considers it appropriate to consider this complaint of the applicant in the context of those complaints made by the applicant falling within the scope of Article 6 (Art. 6) of the Convention.        However, such a difference in treatment will only be discriminatory if it does not pursue a "legitimate aim" and if there is no "reasonable relationship of proportionality between the means employed and the aim sought to be realised" (see, for example, Eur. Court H.R., Darby judgment of 23 October 1990, Series A no. 187, p. 12, para. 31). Furthermore, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment; the scope of this margin will vary according to the circumstances, the subject matter and the background (Eur. Court H.R., Lithgow judgment of 8 July 1986, Series A no. 102, pp. 66-67, para. 177).        The matters effectively raised by this complaint relate to various hearings in a court which was in London (and thus involved a considerable amount of travelling and discomfort for the applicant) and which, according to the applicant, had no facilities for the disabled.        Even assuming that the refusal by the courts to transfer the applicant's case to a court nearer to her home with facilities for the disabled led to an effective difference in treatment between her and able-bodied litigants, the Commission recalls in this context again the reasons for the refusal by the courts of her application to transfer the proceedings and the lack of any practical steps taken by the applicant in this respect (as referred to at 1. above).        Accordingly, the Commission considers that, in the circumstances of the present case, the rejection by the courts of the applicant's application to transfer the proceedings from Woolwich County Court had a legitimate aim (the maintenance of the rights of other litigants involved in the case) and that there was a reasonable relationship of proportionality between the means employed and that aim (refusal of the applicant's application to transfer the proceedings at an advanced stage in the proceedings).        The Commission therefore considers this complaint manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.    The applicant also complains that the effect on her of all of the above matters (including the courts' failure to deal appropriately with her disability) constituted treatment contrary to Article 3 (Art. 3) of the Convention, which Article reads as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission recalls that the case-law of the Convention organs establishes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3) of the Convention. Further, the Court has held that the suffering occasioned must attain a certain level before treatment can be classified as inhuman. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (Eur. Court H.R., Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25).        Insofar as the applicant complains about physical discomfort and mental anguish caused by her having to defend proceedings issued by the Council as a disabled person (including attending a court a significant distance from her home which allegedly had no facilities for the disabled), the Commission again recalls in this context the reasons for the refusal by the courts of her application to transfer the proceedings together with the failure on the part of the applicant to take any practical steps towards alleviating any difficulties her disability may have caused (as outlined in para. 1 above). In such circumstances, the Commission does not consider that the applicant was subjected to any such treatment alleged by a public authority. In addition, the Commission does not consider that the application otherwise demonstrates treatment of the applicant reaching the minimum level of severity which would fall within the scope of Article 3 (Art. 3) of the Convention.        Accordingly, the Commission considers this complaint manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   6.    Finally, the applicant complains under Article 13 (Art. 13) of the Convention that she was denied an effective domestic remedy. However, the case-law of the Convention organs establishes that Article 13 (Art. 13) of the Convention does not require a remedy in domestic law for all claims alleging a breach of the Convention; the claim must be an arguable one (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52). In light of the above conclusions of the Commission concerning the applicant's other complaints, the Commission finds that the applicant does not have an arguable claim of a breach of her rights and freedoms which warrants a remedy under Article 13 (Art. 13) of the Convention.        It follows that this complaint must also be rejected as being 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 First Chamber          President of the First Chamber        (M. F. BUQUICCHIO)                         (C. L. ROZAKIS)