CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 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. 26249/95                       by John William DICK                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  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 5 July 1994 by John William DICK against the United Kingdom and registered on 19 January 1995 under file No. 26249/95;        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 30 May      1996 and the observations in reply submitted by the applicant on      29 July 1996, and the Government's response thereto of      14 February 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1938, is a Canadian citizen, with a permanent address in Jersey, the Channel Islands, and currently lives in Germany.   He is represented by Mr George Devlin, who describes himself as a Human Rights Consultant and is resident in Jersey.   The facts of the case may be summarised as follows:   A.    Particular circumstances of the case   a)    Proceedings in California and Colorado, United States of America.        In February 1982, the applicant and X, were married and in April 1987 they separated.   X commenced divorce proceedings in California ("the California proceedings") and in Colorado ("the Colorado proceedings").   During the course of the California proceedings, X applied for temporary support or maintenance from the applicant.   On 19 December 1990, a temporary support order was granted ("the 1990 Order") under which the applicant was required to pay X a substantial monthly sum.   The court's decision was to some extent dependent on evidence given by Y, a friend of X, that he did not intend to give her any further financial assistance.        The applicant's appeal against the 1990 Order to the Court of Appeal of the State of California and his petition for review to the Supreme Court of the State of California were refused on 26 April 1993 and 26 August 1993 respectively.   b)    The Jersey proceedings        On 14 September 1993 X applied, in accordance with the Loi sur les saisies en vertu d'ordres provisoires (1862), to the Royal Court of the Island of Jersey for an Order of Justice and a "saisie" of the applicant (arrest and incarceration order), claiming that the accumulated debt owed to her by the applicant under the 1990 Order was $3,222,782.06.        On 15 September 1993, the Royal Court of the Island of Jersey (Samedi Division) granted X, by an Order of Justice, a "saisie" of the applicant ("the saisie") that provided that the applicant should be arrested and incarcerated at the Debtor's prison at La Moye until the earliest of the following:        -      $2,000,000 caution was paid; or        -      The Plaintiff's claim together with the Plaintiff's            costs were paid in full; or        -      Until further order of the Court.        It was further ordered that the applicant be convened before the court so that the court could order payment of the debt.        The applicant was outside the jurisdiction at the time that the Order of Justice was made,   and was not given notice of X's application for the order.        The applicant, who had lived in Germany for several years, arrived in Jersey for a visit on 21 November 1993.   On 29 November 1993 he was arrested and served with a summons requiring him to appear before the Royal Court of Jersey on 10 December 1993 in order to witness confirmation of the Order of Justice.   He was taken to H.M Prison La Moye immediately, his request to collect his insulin from his home in Jersey being refused despite his need to inject himself seven times a day. He was brought before the court on 3 December 1993, when the court ordered his continued detention pending payment of the debt owed to X or of a security of $2,000,000 or further order of the court.        On 10 December 1993, the applicant was again brought before the court, which ordered that the applicant should remain in prison until he had paid X the sum of $3,222,782 plus costs or until he had completed one year and one day in prison, whichever was the earlier.        The applicant's application for release (by summons filed on 14 December 1993) was heard on 21 December 1993.   The court varied the terms of the saisie on medical grounds, ordering that the applicant should be released from the Debtor's prison on condition that he:              (a)    first handed over his passports to the Viscount;            (b)    resided at his home and did not leave the island                  without permission of the Court;            (c)    submitted to a medical examination by Doctor                  William Richard Ginks (and that if he wished to                  receive treatment outside the jurisdiction, he                  should first apply to the Court for permission                  to do so).        X appealed against the Order and applied for the applicant to be re-arrested and incarcerated in a Debtor's prison under the terms of the Order of Justice of 15 September 1993, claiming that the court had no power to order the applicant's release.        By summons filed on 20 December 1993, to be heard on 26 January 1994, X applied for final judgment against the applicant for the amount claimed in the Order of Justice plus costs ("application for summary judgment").        During the hearing of the application for summary judgment, evidence of a deposition sworn on 20 December 1992 in the course of the Colorado proceedings (which followed the California proceedings), was adduced by the applicant on affidavit to show that the 1990 Order had been obtained on the basis of fraud, in particular to show that Y had not ceased to give X financial assistance nor had he intended to do so, as had been claimed in the course of the California proceedings.   The applicant submitted that the 1990 Order would not therefore be enforceable in either California or Jersey.   In light of the above, on 11 February 1994 the court dismissed X's application for summary judgment and the granted the applicant unconditional leave to defend the action.   The applicant remained subject to the saisie, as varied on 21 December 1993.        By a summons filed on 22 March 1994, the applicant applied for the conditions upon which he was released from custody on 21 December 1993, to be amended or lifted.   On 29 April 1994, the saisie was lifted, on the basis that it was arguable that the 1990 Order was not enforceable in that it had been obtained on the basis of fraud.   The applicant's passport was returned and he was able to rejoin his companion in Germany.   B.    Relevant domestic law        The "Ordre Provisoire" (Provisional Order) is, according to Jersey law, a civil law remedy, employed by the creditor for the summary recovery of a liquidated debt. The "Ordre Provisoire" authorises the plaintiff to effect a "saisie" upon the debtor. The proceedings in the case commence by an Order of Justice, which is a statement of the essentials of the plaintiff`s claim, drafted by the counsel for the plaintiff. The Order of Justice sets out the relief sought and also specifies any interim orders sought such as an "Ordre Provisoire". It is presented to the Bailiff, and if he signs it becomes an Order of the Court insofar as there is any interim relief sought. It is served on the defendant, who is notified also of the date of the first Court hearing. A person, who is "expatriable" (i.e a person, who does not own immovable property in the Island, which is available for his creditors) may be arrested in person if the Bailiff has granted a "saisie".        Once the initial "Ordre provisoire" has been effected, the matter must be brought before the Royal Court at the next available sitting. If the claim is not admitted, the case will be placed on the Pending list (as in this case). When a matter has been placed on the Pending list, the plaintiff may, on the ground that the defendant has no defence to the claim, apply to the Court for judgment against the defendant. On application the Court will consider whether the "Ordre Provisoire" should be maintained.        In connection with the recognition and enforcement of the foreign judgment, the Jersey court does not consider or investigate its merits. It merely considers whether the foreign court had jurisdiction according to the English and Jersey rules of the conflict of laws. The Jersey court will consider whether the foreign judgment is impeachable on any of the three grounds only, that is if the judgment has been obtained by fraud, if enforcement would be contrary to public policy or if the proceedings in which the judgment was obtained were contrary to natural justice. The burden of proof lies on the party who seeks to impeach it.   COMPLAINT        The applicant complains that the ex parte nature of the Order of Justice of 15 September 1993 violated Article 6 paras. 1, 2 and 3 (b) and (d) of the Convention. He claims that detention proceedings, beginning with the ex parte order of arrest and detention, violated his right to a fair hearing. He alleges that detention in itself as well as a requirement to pay to the court a caution or debt in full was a determination of civil rights and obligations. As he also sees the detention proceedings as criminal in nature, he claims he did not have adequate facilities to prepare his defence and examine witnesses because he was not present when the ex parte order took place and that he was not able to communicate with his American lawyers directly.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 5 July 1994 and registered on 19 January 1995.        On 28 February 1996 the Commission decided to declare inadmissible the applicant`s complaints under Articles 5 and 8 of the Convention, and to communicate the applicant`s complaint under Article 6 of the Convention concerning the ex parte nature of the Order of Justice of 15 September 1993.        The Government's written observations were submitted on 30 May 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 29 July 1996, also after an extension of the time- limit. The Government submitted further observations on the points raised by the applicant on 14 February 1997.   THE LAW        The applicant complains that the ex parte nature of the Order of Justice of 15 September 1993 violated his right to a fair and public hearing, as required by Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 (Art. 6) of the Convention, insofar as relevant, 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..."        The Government submit that the proceedings in Jersey which began with the Order of Justice of 15 September 1993 did not determine the applicant`s "civil rights and obligations" within the meaning of Article 6 (Art. 6) of the Convention. They claim that that exercise was undertaken by the Los Angeles court which created the legal obligation on the part of the applicant to pay a sum of money to his wife. The sole question in Jersey was whether that judgment could be enforced in Jersey. The applicant appeared in California to contest the Californian proceedings and accordingly, the Los Angeles Court undoubtedly had jurisdiction. The "Ordre Provisoire" was merely a provisional step to assist in the ultimate enforcement of any judgment which might be pronounced by the court in the future. The applicant could therefore obtain release from the "saisie" by providing security in a stipulated sum. Alternatively, he could apply for a variation or discharge of the "saisie" at any stage of the proceedings (which he did after some delay).        The Government also submit that the application should be rejected for non-exhaustion of domestic remedies. The Government claim that as it transpired that the Californian order of 1990 had been obtained by fraud, the applicant would be entitled to claim damages in tort for abuse of the process of the court.        Alternatively the Government submit that the applicant`s complaint has been submitted out of time as he was released from prison on 21 December 1993, which was therefore the date of the last alleged determination of rights with respect to the ex parte detention. 21 December 1993 would therefore be the latest date from which six months are to be counted.        If the Commission were to find that Article 6 (Art. 6) does apply in this case, the Government submit that the proceedings were in any event fair. The fairness of proceedings, which have the characteristics of an interim injunction, is ensured by the party against whom an ex parte order is made having an immediate opportunity to argue that the order should be revoked or varied. The applicant, acting through counsel, chose not to make any application for his release on 3 December or 10 December, but only by summons dated 14 December which came before the Court on 21 December 1993, when he was released from prison on the ground of ill-health.          The Government also observe that the applicant had full access to his Jersey lawyer and could have instructed his American lawyers through him, and could have obtained advice from them as to possible defences to the proceedings in Jersey. The applicant offers no explanation as to why he had taken no steps to have the Californian order set aside or to raise the matter of alleged fraud in the appeal against that order. The applicant had for nearly two years failed to comply with the Californian order yet he did not know on what basis he might be entitled to resist payment. Matters taken into consideration by the Jersey Court would have included the apparent ability of the applicant to pay the sum ordered by the Los Angeles court and his apparent unwillingness to do so.        The applicant submits that the proceedings in Jersey which began with the Order of Justice of 15 September 1993 did determine his "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. He contends that the ex parte order by virtue of its terms and nature involved new and separate determinations of civil rights and obligations independent of those already adjudicated upon by the California Order. The applicant claims that the ex parte order of 15 September 1993 was a provisional finding against him and "determined" that he should be arrested and incarcerated in prison. He is also of the opinion that the continuing "saisie" of the applicant on 3 December and 10 December 1993 permitted the Royal Court to "determine" whether the applicant should continue to be incarcerated in prison. Imposing conditions not to leave the island of Jersey and handing over his passport also "determined" that the movement of the applicant should be curtailed. The applicant disputes the Government`s statement that the proceedings only had the characteristics of an interim injunction. He underlines that there is a vast difference between ordering the assets of a defendant to be restrained and ordering the arrest of the defendant. He claims that the Order of Justice determined his right to liberty.        The applicant also points out that he was ordered to pay either the caution or the plaintiff`s claim in full, therefore the order was intended to operate as an Order as to the relief sought and not, as alleged by the Government, as an interim order only. The true effect of the ex parte order was therefore a "determination" by the Bailiff that the applicant was a "debtor" by virtue of his non-compliance with the California Order. Whenever an "Ordre Provisoire" incorporates a caution to be paid, it follows that "civil rights and obligations" have been determined.        As to the fairness of proceedings, the applicant complains about not receiving any notice that a hearing would take place on 15 September 1993 and about not being able to attend the hearing. He also claims that he was not able personally to instruct and fully discuss his case with his Colorado and California lawyers which as a consequence meant that the only option open to the applicant at the time was to agree to remain in custody whilst the Jersey lawyers researched the case-law and gathered sufficient evidence to lodge an application for his release. Only in January 1994, that is after his release on medical grounds, did the lawyers of Jersey and Colorado find out that the line of defence open to the applicant was to challenge the Jersey proceedings on the grounds that the 1990 California Order had been obtained by fraud. The applicant also notes that the plaintiff`s lawyer had nine months to prepare the case for the Jersey proceedings while he only had a very short time to prepare his defence.          The applicant also claims that the Jersey court failed to consider whether the foreign judgment was obtained by fraud, this being one of the reasons for impeachment of the judgment. He claims the Provisional Order has been made only on the basis of the affidavits of the Plaintiff, her Colorado, Jersey and Californian lawyers. As the affidavits contained no such admission or denial, the Order of Justice of 15 September was made without any consideration of the possibility that the California Order may have been obtained by fraud.        The Commission notes that no allegations of criminal behaviour were made against the applicant at any stage.   The proceedings against him did not, therefore determine a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Article 6 para. 2 and Article 6 para. 3 (Art. 6-2, 6-3) of the Convention are therefore of no relevance in the present case.        The Commission notes that the applicant complains only about the proceedings following the ex parte order of 15 September 1993, namely his arrest and detention. This part of the proceedings continued on an inter partes basis on 3 December and 10 December and ended on 21 December 1993, when the applicant was released. The Commission also notes that the saisie ordered in September 1993 was lifted on 29 April 1994, and the applicant returned to Germany.   The outcome of the proceedings was therefore ultimately in the applicant's favour, such that there may be a question as to whether the applicant may at all claim to be a "victim" of a violation of Article 6 (Art. 6), within the meaning of Article 25 (Art. 25) of the Convention. The Commission need not, however, determine this question as the application is in any event manifestly ill-founded for the following reasons.        The Commission recalls that where interim measures are requested in the course of proceedings which determine civil rights, the proceedings by which the interim measures are ordered do not, themselves, determine civil rights or obligations (see, for example, No. 12446/86, Alsterlund v. Sweden, Dec. 5.5.88, D.R. 56, p. 229, with further references at p. 232).   The ex parte proceedings as such cannot therefore be said to have determined the applicant's civil rights or obligation.        Moreover, even if the ex parte proceedings as such were capable of determining civil rights or obligations, those proceedings consisted of no more than the grant of the Order of Justice on 15 September 1993 and its service on the applicant (and his immediate arrest) on 29 November 1993.   Once the applicant was put on notice of the proceedings, they were no longer ex parte.   It follows that - to the extent that the Commission is looking at the ex parte proceedings as an isolated part of the overall proceedings - the six months period provided for in Article 26 (Art. 26) of the Convention runs from that date or, at the latest, from 21 December 1993, which was the date of the applicant's release from prison and the end of the immediate effects of the ex parte order.   Thus the Commission would in any event be prevented from considering the ex parte proceedings as such by the operation of the six months rule contained in Article 26 (Art. 26) of the Convention.        Taking the enforcement proceedings as a whole, the Commission recalls that it has previously held that enforcement proceedings will not generally determine civil rights and obligations unless they are capable of giving rise to a fresh determination of substantive matters (see No. 13800/88, Dec. 1.7.91, D.R. 71, p. 94). Since that decision, the European Court of Human Rights has held that enforcement may fall to be considered in the context of Article 6 (Art. 6) of the Convention (see Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, No. 33, para. 40) and that the determination of costs, too, may fall within the ambit of Article 6 (Art. 6) of the Convention (see Robins v. the United Kingdom judgment of 23 September 1997, to be published in Reports of Judgments and Decisions for 1997, para. 29). In the present case, the principal determination of civil rights and obligations was clearly the proceedings before the Californian courts.   If the proceedings before the Jersey courts determined civil rights and obligations, that determination must have been wholly independent of the initial, Californian proceedings.        The applicant claims that the Jersey proceedings did give rise to new legal issues, independent of those already adjudicated upon by the California order.   The Government do not agree.        The Commission can, however, leave also this question open because, even assuming that Article 6 (Art. 6) applied to the Jersey proceedings as a whole, this complaint is in any event manifestly ill- founded.        The Commission would first recall 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 constant case-law (see No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43, pp. 71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18, pp. 31, 45; No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93, D.R. 74, p. 234).        Whilst the draconian interim measure which was ordered against the applicant may well have caused him considerable inconvenience, in the context of the Jersey proceedings as a whole, the Commission can see no unfairness in these proceedings. In particular, there is no reason why the institution of proceedings on an ex parte basis should have any impact on the fairness of the proceedings as a whole, provided that full procedural guarantees were available when the proceedings were inter partes. In the present case, once the proceedings were inter partes, the applicant had several hearings, was represented by a lawyer and the case finally ended in his favour.        It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber