CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.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. 26109/95                       by Eusebio SANTA CRUZ RUIZ                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 22 October 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 28 April 1994 by Eusebio SANTA CRUZ RUIZ against the United Kingdom and registered on 3 January 1995 under file No. 26109/95 ;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      26 November 1996 and the observations in reply submitted by the      applicant on 1 February 1997 ;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Spanish citizen, born in 1935 and resident in Madrid.   a.    The particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows:        By decree nisi of 10 May 1976, made absolute on 5 July 1976, the marriage concluded on 23 April 1962 between the applicant and Mrs D.-V. S.C. was dissolved.        On 27 July 1978, an order was issued by the Brighton County Court, following a complaint made by the applicant's former wife, to enforce payment of maintenance arrears.   The applicant was ordered to pay to his former wife "periodical payments for herself until such date as she remarry or further order ... and to the children ... until they shall respectively attain the age of seventeen years or further order ...".        On 30 October 1979, the Home Office sent a request to the Ministry of Justice in Spain to take all appropriate steps on behalf of the claimant, if no settlement could be reached on a voluntary basis, for the recovery of maintenance from the applicant.        On 4 January 1994, the applicant was arrested at Gatwick airport upon his arrival in the United Kingdom for family reasons following a complaint made by the applicant's former wife for the enforcement of the maintenance arrears. The warrant had been issued by a Magistrate of the then Hove Magistrates' Court on 10 December 1992.   The applicant states that he was not shown an arrest warrant.   He was remanded in custody and held incommunicado in Brighton and Hove Magistrates' Court's cells.   The parties do not agree as to whether the applicant was given the opportunity to telephone the Spanish Consulate while at the airport.        On the same day he was brought before the Court without any advance notice and without the assistance of either a legal representative or an interpreter.   By a decision of 4 January 1994 of the Brighton and Hove Magistrates' Court, the applicant was committed to 42 days' imprisonment in default of payment of a sum of money amounting to £25,140.00 due in respect of maintenance arrears.   He was neither informed in writing of the sentence imposed on him, nor was he given a chance to appeal.        On 7 January 1994, the applicant was released on payment by his former wife's mother of the arrears of maintenance in question, amounting to £22,074.00.   On the same day, the applicant's solicitors requested and were provided with a copy of the order, the magistrates' written reasons for their decision and the notes of evidence given at the hearing.        On 25 January 1994, the Clerk of the Brighton and Hove Magistrates' Court stated that the maintenance order had never been registered and that the magistrates' decision was ultra vires so that it would appear that an appeal by way of case stated was unnecesary as the issue over the arrears could be fully argued in the County Court.        On 25 February 1994, the Clerk of the Brighton and Hove Magistrates' Court confirmed, in an extract from the Magistrates' Court register, that on about 18 January 1994, the court had found that the said decision was ultra vires.        In the meantime, the applicant's solicitors had made an application to the magistrates to state a case.   This was not pursued because the applicant had been released on payment of the sums owing. The matter was instead pursued by way of an application in the country court to challenge the 1978 maintenance order, and the arrears, in their entirety.        In a consent Order of 2 May 1995, the applicant and Mrs D.-V. S.C. agreed to have the maintenance order of 27 July 1978 set aside.   b.    Relevant domestic law and practice   (a)   Satisfaction and enforcement of judgments or orders by      Magistrates Courts (Sections 75-96A) of the Magistrates' Court      Act 1980)        Section 76(1)        "Subject to the following provisions of this Part of this Act, and Section 132 below, where default is made in paying a sum adjudged to be paid by a conviction or order of a Magistrates' Court, the court may issue ... a warrant committing the defaulter to prison."        Section 92        "A Magistrates' Court shall not exercise its power under Section 76 above to issue a warrant to commit to prison a person who makes default in paying a sum adjudged to be paid by an order of such a court except where the default is under :        (a) a Magistrates' Court maintenance order ..."   (b)   Review of administrative decisions and decisions of inferior      courts        By virtue of Section 111 of Magistrates' Court Act 1980 a party to proceedings before a Magistrates' Courts may "question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ..."        The High Court is not seized of an appeal by way of case stated until the Magistrates' Court has actually stated a case and it has been lodged in the High Court.   (c)   Magistrates' liability for damages for false imprisonment        On 1 January 1991 Section 108 of the Courts and Legal Services Act 1990 entered into force.   The Act replaces Sections 44 and 45 of the Justices of the Peace Act 1979 providing, inter alia, that an action lies against a Justice of the Peace (magistrate) who acts beyond jurisdiction if, and only if, it is proved that he acted in bad faith.        Neither the civil nor the criminal legal aid scheme provides for full representation before the magistrates in maintenance order commitment proceedings.   The "Green Form" scheme provides two hours' worth of help from a solicitor, and can include preparation for a court case, but does not provide for representation. An extension of the costs limit can be granted by the Legal Aid Board.   Assistance by way of Representation ("ABWOR") enables the court, in limited circumstances, to appoint a solicitor who happens to be within the court precincts for purposes other than the provision of ABWOR to represent a party who would not otherwise be represented.   The appointment may be made either of the court's own motion or on application by a solicitor.   The court is under no obligation to advise a party of the possibility of an appointment.   The Duty Solicitor Scheme, which provides representation to accused in criminal cases before magistrates, does not extend to maintenance order proceedings.   COMPLAINTS   1.    The applicant complains under Article 5 paras. 1 and 5 of the Convention that he was unable to lodge a "habeas corpus" application or any other appeal challenging the lawfulness of his detention and that he has not received any compensation so far.   2.    The applicant further complains under Article 6 paras. 1 and 3 (a), (b) and (c) of the Convention that the proceedings against him were unfair, that legal aid was not available and that he was not legally represented before the Magistrates' Court which committed him to prison, that the court was biased against him and that he was totally incommunicado while in custody.   3.    The applicant alleges a violation of Article 6 para. 3 (d) and (e) insofar as he did not have the opportunity to question the plaintiff and was without the assistance of an interpreter.   4.    The applicant submits that the fact of having been arrested without any arrest warrant was humiliating, that no criminal proceedings nor any arrest warrant were issued against him and that he was not informed of the reasons for his arrest;   that he does not have any effective remedy before any national authority insofar as he states he has appealed and has not yet received an answer, all documents having been destroyed; and that he has been a victim of discrimination on   grounds of his nationality.   He invokes Articles 3, 5 paras. 2 and 4, 7, 13 and 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 28 April 1994 and registered on 3 January 1995.        On 29 November 1995 the Commission decided to communicate the application to the respondent Government.        On 5 March 1996, upon request of the Government, the Commission decided to adjourn the examination of this application pending the outcome of the case Benham v. the United Kingdom before the Court.        On 9 July 1996, the Commission invited the respondent Government to submit written observations on the admissibility and merits of the application in the light of the Benham judgment of 10 June 1996.        The Government's written observations were submitted on 26 November 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 1 February 1997.   THE LAW   1.    The applicant complains under Article 5 paras. 1 and 5 (Art. 5-1, 5-5) of the Convention that he was unable to lodge a "habeas corpus" application or any other appeal challenging the lawfulness of his detention and that he has not received any compensation so far.        Article 5 (Art. 5) of the Convention provides, so far as relevant, as follows:        "1.    Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:        ...              b.     the lawful arrest or detention of a person for non-      compliance with the lawful order of a court or in order to secure      the fulfilment of any obligation prescribed by law; ...        5.     Everyone who has been the victim of arrest or detention in      contravention of the provisions of this Article shall have an      enforceable right to compensation."        The Government note that the present application bears a close resemblance to the Benham v. the United Kingdom case (cf. Eur. Court HR, judgment of 10 June 1996, Reports of judgments and Decisions, 1996-III, No. 10) and that the relevant provisions of the Magistrates' Courts Act 1980 equate to the provisions of the Community Charge Regulations which were in issue in the Benham case, where the Court found no violation of Article 5 paras. 1 and 5 (Art. 5-1, (5-5) of the Convention.        The Government concede that there is an additional feature in the present case, namely the statement in the register of the Brighton and Hove Magistrates' Court that on about 18 January 1994, the court found that the maintenance order of 1978 had never been registered at the court and that the proceedings for enforcement were therefore ultra vires.   They explain that at the time of the original complaint of default, there was no provision for reciprocal enforcement of maintenance orders between the United Kingdom and Spain and no requirement for registration of the 1978 order, since the Magistrates' Court was involved in transmitting a claim for maintenance based on the 1978 order rather than an application for enforcement of that order itself.   However, by the time reciprocal enforcement became possible, no application was made for it, which would have required registration. It appears that when the applicant's former wife sought in 1992 to take further steps to enforce the 1978 order, the court mistakenly took the transmission of her separate application on 30 October 1979 as the transmission of a reciprocal enforcement request which would have required the order to be registered; and so the court thereafter proceeded on the mistaken belief that the 1978 order had been registered and that the court had power to enforce it as if it had made the order itself, by virtue of section 3 (2) of the Maintenance Order Act 1958.   The lack of registration was not discovered until after the applicant's release from prison.        The Government consider that a period of detention will in principle be lawful if it is carried out pursuant to a court order, and a subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention.   In the present case, there was no effective finding under domestic law that the Magistrates' Court erred, since the magistrates themselves could not set aside their order and the appeal by way of case stated was not pursued to the High Court. In the circumstances, while it is conceded that there was an irregularity which might have resulted in the magistrates' order being set aside, the matter has not been adjudicated and the Government submit that it is certainly open to argument that the mistaken belief of the Court that the 1978 order had been registered, was such as to found jurisdiction even though subsequently shown to be incorrect.   Nor can it be said that the detention was arbitrary in the sense that the magistrates who ordered the applicant's detention acted in bad faith or that they neglected to attempt to apply the relevant legislation correctly.        The Government conclude that, notwithstanding the magistrates' concession that they were not empowered to take enforcement action because the 1978 order had not been registered in their court, the detention of the applicant pursuant to the magistrates' order was not unlawful within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention.   As a result, Article 5 para. 5 (art. 5-5) of the Convention is not applicable        The applicant points to the fact that it was recognised by the Court itself that the magistrates' decision was ultra vires.   He states that it was the solicitor acting in his behalf who discovered that the magistrates had acted in excess of jurisdiction and considers that the three circumstances of excess of jurisdiction stated in McC v. Mullan [1985] A.C. 528 apply in this case : that the court acted without having jurisdiction, exercising its powers in a procedural manner that involved a gross and obvious irregularity and that it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent.   He concludes that his detention was unlawful under Article 5 para. 1 (Art. 5-1) of the Convention and that consequently, paragraph 5 of this provision was also violated, there being no possibility to obtain compensation for the facts of having been arrested in public, the forty-two days sentence, the moral damage, etc.        Having examined these complaints, the Commission finds that they raise serious questions of fact and law, the determination of which should depend on an examination of the merits.   This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.   2.    The applicant further complains under Article 6 paras. 1 and 3 (a), (b) and (c) (Art. 6-1, 6-3-a, 6-3-b, 6-3-c) of the Convention that the proceedings against him were unfair, that legal aid was not available and he was not legally represented before the Magistrates' Court which committed him to prison, that the court was biased against him and that he was totally incommunicado while in custody.        Article 6 (Art. 6) of the Convention provides, so far as relevant, 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.   ...        3.   Everyone charged with a criminal offence has the following      minimum rights:              a.     to be informed promptly, in a language which he      understands and in detail, of the nature and cause of the      accusation against him;              b.     to have adequate time and facilities for the      preparation of his defence; ...              c.     to defend himself in person or through legal      assistance of his own choosing or, if he has not sufficient means      to pay for legal assistance, to be given it free when the      interests of justice so require.   ..."        The Government submit that the proceedings were not criminal and refer to the applicable criteria stated in the Benham judgment. They consider that the proceedings in the present case are a matter of civil debt between the parties to the maintenance proceedings and point to the fact that the applicant was released immediately   upon payment on his behalf of the arrears.   Concerning the nature of proceedings, the Government state that the present proceedings are brought by the private party to whom payment of maintenance is due and the law concerning liability to pay maintenance is not of general application to all citizens, but applies only to married couples or couples with children on the breakdown of their relationship.   As to the severity of the penalty, the Government concede that the applicant was ordered to be detained for 42 days, but point out that this was the maximum penalty and that it was imposed in relation to the importance of the sum due (cf. Benham v. the United Kingdom judgment, loc. cit., p. 756, para. 56).   They conclude that the balance is overwhelmingly in favour of the proceedings of the case being regarded as civil proceedings within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        As to whether the interest of justice required that the applicant be given free legal assistance, the Government concede that, as in the Benham case, deprivation of liberty was at stake and the test which the magistrates had to apply was complex.   However, they distinguish the present case from Benham as it appears that the applicant had sufficient means to pay for legal assistance.   The Government conclude that, even if the proceedings before the magistrates had been criminal proceedings, there was no requirement in the present case for the applicant to be provided with free legal assistance.        The applicant states that there could be no arrest warrant if the order had not been registered.   He complains that following his arrest he was never offered legal assistance let alone free legal assistance and recalls that he was held incommunicado.        Having examined these complaints, the Commission finds that they raise serious questions of fact and law, the determination of which should depend on an examination of the merits.   This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.   3.    The applicant alleges a violation of Article 6 para. 3 (d) and (e) (Art. 6-3-d, 6-3-e) insofar as he was without the assistance of an interpreter and he did not have the opportunity to question the plaintiff.        The Government point to the fact that the applicant resided in the United Kingdom for at least thirteen years, during which he worked for an English company, and to the statement in the court's letter of 25 May 1994 to the effect that the applicant gave evidence to the Court in English and was able to understand the proceedings.        The applicant states that he had not spoken English for a long time and that, due to his hearing deficiency, he could not correctly understand the proceedings.        In the light of all the material in its possession and, in so far as the applicant has substantiated his complaint and the matters complained of are within its competence, the Commission finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.        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.   4.    Concerning the remainder of the applicant's complaints under Articles 3, 5 paras. 2 and 4, 7, 13 and 14 (Art. 3, 5-2, 5-4, 7, 13, 14) of the Convention, the Commission finds that they are unsubstantiated.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.          For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints concerning the lawfulness of his detention      and the lack of compensation, and the unfairness of the      proceedings, insofar as he was not informed of the nature and      cause of the accusation against him and did not have adequate      time and facilities to prepare his defence, as legal aid was not      available and he was not legally represented before the      Magistrates' Court;        DECLARES INADMISSIBLE the remainder of the application.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber