CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 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. 29106/95                       by Costas and Anthony COMNINOS and                       National Justice Compania Naviera SA.                       against the United Kingdom      The European Commission of Human Rights (First Chamber) sitting in private on 16 October 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ              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 5 September 1995 by Costas and Anthony COMNINOS and National Justice Compania Naviera SA. against the United Kingdom and registered on 8 November 1995 under file No. 29106/95;        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 first and second applicants are Greek nationals born in 1939 and 1946 respectively and presently resident in Piraeas, Greece.   The first applicant is the owner and manager of the third applicant, National Justice Compania Naviera SA.   The second applicant is a minority beneficial owner of the Ikarian Reefer, a vessel owned by the third applicant. The applicants are represented before the Commission by D. Paraskevas, a member of the Athens Bar.   The facts as submitted by the applicants may be summarised as follows.        On 12 April 1985 the Ikarian Reefer ("the vessel") ran aground and caught fire off the shoals of St. Ann.   On 15 November 1985 the third applicant commenced proceedings in the English High Court against the primary underwriter of the vessel, the Prudential Insurance Company Limited, claiming its part of the insured value of the vessel.        The proceedings took place over a period of 82 days, commencing in May 1992.   The primary issues in the case were as follows:   i)    Did the Master ground the vessel deliberately or through his negligence ?   ii)   Was the fire accidental or was the vessel deliberately set on fire by a crew member (probably the oiler T) acting on the master's and/or chief engineer's instructions?   iii) Were the first and second applicants participants in a plan to scuttle the vessel.        Judgment was given in favour of the third applicant on 25 February 1993.   The judge found that :        (a)    the owners had proved on the balance of probabilities that            the grounding of the vessel was accidental;      (b)    the underwriters had not proved to the relevant standard            that the vessel was set on fire with the connivance of the            owners.        The underwriters appealed to the Court of Appeal claiming:        (a)    that the grounding was deliberate and effectively the cause            of the loss.      (b)    that the fire was started deliberately.      (c)    that both the grounding and the fire were caused with the            connivance of the owners.        The underwriters argued that the judge had assessed the evidence wrongly, giving undue weight to certain factors and in particular to the demeanour of witnesses, that he had approached the case in a piece- meal fashion when the three aspects of the case, referred to above, had to be considered together since they were closely interrelated.        The third applicant argued that the underwriters had to show that the findings of the trial judge as to facts and as to the credibility of witnesses were plainly wrong, and that only on the clearest grounds should a decision whereby a party is acquitted of fraud be displaced. Further, it argued that since the resolution of the case was highly dependent on the judge's assessment of the integrity of the witnesses, this was not a case where the Court of Appeal should substitute its own judgment for that of the trial judge.        On 8 December 1994 the Court of Appeal gave judgment.   While it accepted the findings of the Court below as to the law, it held that the trial judge had approached the evidence of the witnesses, and in particular of the Master, incorrectly, and had further assessed the evidence wrongly, so coming to incorrect findings of fact in respect of certain fundamental elements of the case.        In view of that finding, the Court of Appeal considered itself bound to make its own findings as to events leading to the grounding of the vessel and to reach its own conclusion as to whether the grounding was accidental or deliberate.        The underwriters claimed that a number of important findings of fact made by the trial judge were erroneous and both parties made submissions before the Court of Appeal in respect of those alleged errors.        In the course of a hearing, the Court of Appeal therefore reassessed all the evidence, including witness statements, expert reports, interview records and primary evidence that had been before the trial court, as well as the transcript of the trial itself.   As regards evidence that had not been considered during the trial, the Court of Appeal made clear on several occasions that it could not take account of such evidence.        By a judgment running to 181 pages, the Court of Appeal set out the conclusions it had come to in the light of the evidence referred to above and of the arguments that had been made by the parties before it.   It concluded that:        1.     the vessel had been deliberately cast away with the      connivance of the third applicant;        2.     the fire had been started deliberately and that it had      almost certainly been started by the oiler, T, probably with the      knowledge and connivance of the chief engineer.        On 4 January 1995, the third applicant submitted a petition for leave to Appeal to the House of Lords.   On 9 March 1995 the Appeal Committee of the House of Lords refused leave to appeal without a hearing.   As is the normal practice, no reasons for its decision were given.   COMPLAINTS   1.    The applicants complain that they have been denied the right to a fair trial because findings of fact made by the trial judge after he had seen and heard numerous witnesses, were overturned by the Court of Appeal without it hearing any witnesses.   The applicants claim that the failure of the Court of Appeal to see or hear the witnesses in the circumstances of this case fundamentally compromised the fairness of the proceedings.   2.    The applicants further complain under Article 6 of the Convention that in the circumstances of this case, where the facts were highly complex and the appeal raised important points of law, the refusal of the Appeal Committee of the House of Lords to refer the application for leave to an oral hearing and its failure to give reasons for its refusal of leave violated the applicants' rights under Article 6.     3.    The first and second applicants further complain that the consequences of the Court of Appeal's findings were such as to render the trial one determinative of a criminal charge, since their findings were effectively that the applicants had conspired to run the vessel aground in order to claim insurance moneys and had therefore committed fraud.   This was extremely detrimental to the applicants' reputation within the shipping world, of which they were previously highly respected members.   Consequently the applicants claim that the trial should have included the guarantees provided by Articles 6 paras. 2 and 3 of the Convention.   THE LAW   1.    The applicants complain under Article 6 (Art. 6) of the Convention that the Court of Appeal overturned findings of fact made by the trial court without re-hearing witnesses, thus rendering the trial unfair as a whole.   Article 6 para. 1 (Art. 6-1) of the Convention provides as follows.        "1.    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 ..."        With regard to the judicial decision of which the applicants complain, 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 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 refers, on this point, to its established 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 further recalls that in assessing whether the court proceedings satisfied the requirements of Article 6 para. 1 (Art. 6-1) of the Convention the proceedings must be examined as a whole (see No. 12952/87, Dec. 6.11.90, D.R. 67, p. 175 at p. 197).        The Commission observes that in this case the applicants had a full hearing before the High Court where they were able to call and cross examine the witnesses they chose.   They obtained judgement in their favour, the judge ruling that:        (a)    the owners had proved on the balance of probabilities that      the grounding of the vessel was accidental.      (b)    the underwriters had not proved to the relevant standard      that the vessel was set on fire with the connivance of the      owners.        The Commission notes that the underwriters appealed on three grounds:        (a)    that the grounding was deliberate and effectively the cause      of the loss.      (b)    that the fire was started deliberately.      (c)    that both the grounding and the fire were caused with the      connivance of the owners.        The applicants would have been given notice of these three grounds.   They would therefore have been able to address them all at the appeal hearing and to make any submissions as to fact or law that they considered relevant.   Further, the applicants have not shown that the findings of fact made by the Court of Appeal were based on evidence that was not before the High Court or on which they did not have a chance to comment.   It is true that, unusually, the Court of Appeal overturned the trial judge's findings of fact.   The Commission notes however that the Court of Appeal did so on the ground that the trial judge had approached the evidence of the witnesses on an incorrect basis and had in consequence reached incorrect findings of fact on certain fundamental elements of the case. The Commission further notes that, in reassessing the evidence, the Court of Appeal took account of all the evidence before the trial court, including witness statements, expert reports, interview records as well as the transcripts of the oral evidence at the trial itself. In these circumstances, the Commission does not consider that the fact that the Court of Appeal overturned the trial judge's findings of fact can in itself constitute a ground for finding that the trial as a whole was unfair.        It follows that this part of the application must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicants also complain that their rights under Article 6 para. 1 (Art. 6-1) were infringed because the House of Lords failed to require an oral hearing before determining whether to grant leave to appeal and failed to give reasons for its refusal.   In this connection, the Commission recalls that when a Supreme Court determines, in a preliminary examination of a case, whether or not the conditions required for granting leave to appeal have been fulfilled, it is not making a decision relating to "civil rights and obligations" (see No. 11826/85 Dec. 9.5.89, D.R. 61 p. 138).   It follows that Article 6 para. 1 (Art. 6-1) does not apply to the proceedings in which the House of Lords, without entering into the merits, refused the applicants leave to appeal against the judgment of the Court of Appeal.        It follows that this part of the application must be dismissed as incompatible rationae materiae within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The first and second applicants further complain that since the trial was effectively determinative of a criminal charge, they were deprived of their rights under Article 6 paras. 2 and 3 (Art. 6-2, 6-3) of the Convention.   So far as relevant, these provisions provide as follows.        "2.    Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law.        3.     Everyone charged with a criminal offence has the following      minimum rights:      ........      ........ "        The Commission recalls that the notion of "criminal charge" in Article 6 (Art. 6) is an autonomous concept. In determining whether the trial determines a criminal charge, the Commission will consider three criteria: (i) whether the offence belongs to the criminal law according to the legal system of the respondent State; (ii) the nature of the offence; (iii) the nature and degree of severity of the penalty which may be imposed (see Eur. Court HR, Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328-A, p. 13, para. 27).        The proceedings with which this application is concerned were commenced by the third applicant against the main underwriter of the vessel, for the purposes of claiming insurance moneys. Neither the first or second applicants have been accused or convicted of any offence nor have they been subjected to punishment or required to pay any penalty.   Were the first of second applicants to be prosecuted by the authorities following the findings of the Court in the civil proceedings, they would, in the course of those proceedings, be entitled to the guarantees laid down in Article 6 paras. 2 and 3 (Art. 6-2, 6-3).   Those provisions are not however applicable to the proceedings with which this application is concerned, which are clearly civil in nature.        It follows that this part of the application must be dismissed as incompatible rationae materiae within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber