CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 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. 35573/97                       by Nikolai TOLSTOY-MILOSLAVSKY                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 3 December 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 22 January 1997 by Nikolai TOLSTOY-MILOSLAVSKY against the United Kingdom and registered on 8 April 1997 under file No. 35573/97;        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 62 year old British citizen, a historian by profession. He is represented before the Commission by Mr. Neville Maryan Green, a barrister practising in Paris. The facts of the case, as submitted by the applicant, may be summarized as follows.        The background of the present case is set out in the judgment of the European Court of Human Rights in the applicant`s first case before the Convention organs (Eur. Court HR, Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316).        In February 1994 the applicant brought an action against Lord Aldington to set aside the judgment obtained in the libel action in 1989 on the basis that the latter had gained a favourable judgment   by means of extensive perjury. The applicant claimed that he had obtained new evidence, from which it was allegedly clear that the latter had lied in the first trial, and that he was responsible for the forced repatriation of Cossacks and Yugoslavs. Lord Aldington applied to strike out this action on the ground that it was frivolous, vexatious or an abuse of the process of the court. The case was heard from 4 to 6 October 1994 (judgment was handed down on 14 October 1994) and was struck out by Mr Justice Collins. The judge found that the applicant had failed to establish that new evidence could not have been discovered by reasonable diligence at the libel trial and that, in any event, the new evidence raised no possibility of persuading any court that Lord Aldington had committed perjury.        By an order dated 16 December 1994 Mr Justice Collins ordered (1) the applicant to pay the costs of proceedings to Lord Aldington and (2) the applicant`s solicitors, who acted without fee for the applicant, to   pay 60 percent of these costs personally. The solicitors appealed against this order to the Court of Appeal. The Court of Appeal dismissed the appeal on 12 December 1995 on the grounds that it was improper to act for the applicant in what was a "worthless cause". On 1 May 1996 the Appeal Committee of the House of Lords dismissed a petition by the solicitors for leave to appeal.        The applicant`s application for leave to appeal from Mr Justice Collins' decision of 14 October 1994 was refused by the Court of Appeal on 23 July 1996 as the court found no ground to support the case on appeal.     COMPLAINTS        The applicant alleges a series of violations under Article 6 para. 1 of the Convention and also under Article 17 of the Convention.        The applicant complains that the fraud action (ie. the action to set aside the judgment which was allegedly obtained by perjury) heard before Mr Justice Collins was held "in chambers", therefore the general public and journalists were excluded. The applicant claims that no explanation was given for this either then or later by the Court of Appeal. The applicant alleges a violation of his right to a public hearing.        The applicant also alleges that the degree of bias shown by Mr Justice Collins went beyond all acceptable norms. He claims that the judge when referring to a document which constituted new evidence stated that "it must be common knowledge that errors in recording can creep into such records" and was therefore persuaded in advance that this new evidence could not have had any influence on the decision on the libel trial. The judge also stated that he found it difficult to believe that a jury could reasonably have regarded the date of Lord Aldington`s departure from Austria as at all decisive of the question whether the applicant had succeeded in justifying the defamatory statements he had made, although the trial judge himself commented that the date of Lord Aldington`s departure was perhaps one of the most important issues in the case. According to the applicant, the judge`s bias went so far, that his solicitor was only willing to continue to plead the case after being satisfied that a transcript of the proceedings would be made and would be made available to the applicant. The transcript was never made available to the applicant (although the Court of Appeal later referred to it) and when the applicant later enquired about it, Mr Justice Collins replied that he had no recollection of the case.        The applicant claims that the Court of Appeal dealt with the case on 12 December 1995 when it decided on the "wasted costs order" against the applicant`s solicitors. The applicant claims that the Court of Appeal`s decision in this case prejudiced the substance of his case, before it came to be decided by the Court of Appeal on 23 July 1996. The Court of Appeal also erred on the date of the High Court judgment in the libel case (30 November 1990 instead of 30 November 1989) when deciding in the solicitors` proceedings as well as in the applicant`s proceedings.        The applicant also complains that as the courts made a "wasted costs order" against his solicitors, no solicitor would be prepared to act for him which therefore had the effect that he was deprived of legal assistance. As he himself had no legal training he was quite incapable of presenting his case properly before the Court of Appeal. He also alleges that the Court of Appeal referred to bundles of evidence put in on behalf of Lord Aldington which the applicant had no chance to consult.     THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that his case was heard "in chambers" and he was therefore deprived of a public hearing, that the judge was biased as he would not provide a transcript and also deliberately wanted to diminish the importance of the "new evidence"; that the solicitors` proceedings before the Court of Appeal prejudiced its decision in his case; that the Court of Appeal erroneously stated the dates of the libel trial; that he was deprived of legal assistance as a consequence of the courts` decisions in the solicitors` case and that he had no chance to consult the evidence put in on behalf of the other party.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:              "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 ..."        The Commission recalls that in the present case the applicant`s "civil rights and obligations" were determined in the libel proceedings which ended with the dismissal of the applicant`s application for leave to appeal by the Court of Appeal on 3 August 1990. The proceedings that are the subject of the application were brought by the applicant to set aside the judgment obtained by the libel action on the ground that it was obtained by perjury. The applicant alleged that he was able to prove this on the basis of new evidence.        The Commission finds that the ultimate purpose of this action was to re-open the libel proceedings. However, Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to proceedings in which a party requests the re-opening of civil proceedings (see, for example, Nos. 13601/88 and 13602/88, Dec. 6.7.89, D.R. 62, p. 284 with further reference on p. 291).        It follows that the application must be rejected as incompatible ratione materiae with the provisions of the Convention, 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