CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1998

.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. 33745/96                       by Norman SCARTH                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  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 2 February 1996 by Norman SCARTH against the United Kingdom and registered on 12 November 1996 under file No. 33745/96;        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      6 August 1997 and the observations in reply submitted by the      applicant on 1 October 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen, born in 1925 and living in Leeds. The facts of the case may be summarised as follows:   A.    Particular circumstances of the case        On 26 September 1994, proceedings for recovery of a debt of £697 were commenced by Bradley Grange Stud Limited against the applicant in the Scarborough County Court.        By reason of Order 19, Rule 3(1) of the County Court Rules 1981 the case was referred for hearing by way of arbitration under Order 19, Rule 7 of the County Court Rules. Under the rules, arbitration hearings are usually held in private, although the Arbitration Hearing Form specifically invites either party to apply for the hearing to be in public.        On 8 November 1994 a preliminary hearing took place. The plaintiff did not attend, and the applicant requested that the claim be struck out. The District Judge (the arbitrator) refused to do so.        The applicant made an application for the main hearing to be in public and for evidence to be given on oath. This application was heard on 3 January 1995 and refused.        The arbitration hearing took place in private on 16 January 1995. The applicant states that he was not allowed to present his defence properly. The plaintiff was allegedly allowed to call witnesses whose identity had not been disclosed to the applicant within the time limits stipulated by the Court Rules and was also allowed to produce documents in evidence which had not been sent to the applicant in the requisite time limit prior to the hearing. On 31 January 1995 the District Judge made his award in writing, finding in favour of the plaintiff.        The applicant made an application for the arbitration award to be set aside on the ground that there had been "misconduct" or "errors of law" by the District Judge, pursuant to Order 19, Rule 8(1) of the County Court Rules 1981.        The hearing of the application to set aside took place before a Recorder in private. A lay person, who was to accompany the applicant, was denied access to the Court having arrived late.   The Recorder took the view that the so-called "technical breaches" of the rules, which were accepted by the plaintiff`s solicitors, did not amount to misconduct. He refused the application on 9 May 1995 and made a costs order against the applicant. These costs were subsequently assessed at £1,032.76.        The applicant then applied for leave to appeal to the Court of Appeal alleging a lack of public hearing, misconduct by the Judge and an overall unfairness of the proceedings. The applicant was heard in open court and leave was refused on 9 November 1995. Lord Justice Morritt noted that the "European Convention on Human Rights is not part of our law in the way the European Community law is, and the provisions of the county court rule to which I have referred entitled the district judge to hold the hearing in private". He further found that the Judge could not be said to have been guilty of any misconduct and rejected the applicant`s allegations as to unfairness.   B.    Relevant domestic law        Order 19, Rule 3(1) of the County Court Rules, as in force at the relevant time, states that any proceedings in which the sum claimed or amount involved does not exceed £1000 shall be referred for arbitration.        Order 19, Rule 6, para. 3 of the County Court Rules 1981 reads as follows:        "Where proceedings stand referred to arbitration, the following      directions shall take effect-      (a)    each party shall not less than 14 days before            the date fixed for the hearing send to every            other party copies of all documents which are in            his possession and on which that party intends            to rely at the hearing;      (b)    each party shall not less than 7 days before the            date fixed for the hearing send to the court and            to every other party ... a list of the witnesses            whom he intends to call at the hearing.        Order 19, Rule 7, paras. 1, 3 and 4 of the above rules reads as follows:        "(1) Any proceedings referred to arbitration shall be dealt      with in accordance with the following paragraphs of this      rule unless the arbitrator otherwise orders.        (3) The hearing shall be informal and the strict rules of      evidence shall not apply; unless the arbitrator orders      otherwise, the hearing shall be held in private and      evidence shall not be taken on oath.        (4) At the hearing the arbitrator may adopt any method of      procedure which he may consider to be fair and which gives      to each party an equal opportunity to have his case      presented;..."   Order 19, Rule 8, para. 1 of the above rules reads as follows:        "Where proceedings are referred to arbitration, the award      of the arbitrator shall be final and may only be set aside      [where it was given in the absence of a party] or on the      ground that there has been misconduct by the arbitrator or      that the arbitrator made an error of law."   Order 13, Rule 1, para. 10 of the above rules reads as follows:        "An appeal shall lie to the judge from any order made by the district judge on the application and the appeal shall be disposed of in chambers unless the judge otherwise directs".     COMPLAINTS        Relying on Article 6 para. 1 of the Convention the applicant complains that none of the hearings was fair.        He claims that at the preliminary hearing the District Judge read documents from the plaintiff which the applicant had not seen, refused to allow the applicant to produce his own documents and refused to strike out the case on the plaintiff`s failure to attend as he could have done.        At the arbitration hearing the District Judge allegedly did not allow the applicant to properly put forward his case, breached the County Court Rules as witnesses were called and documents were produced by the plaintiff, which had not been disclosed to the applicant in the appropriate time limit, prior to the hearing. He also allowed witnesses to behave in an intimidatory manner.        At the hearing for the arbitration award to be set aside, even though the plaintiff`s solicitor admitted   a technical breach of the court rules, the Recorder did not give sufficient weight to this. The Recorder also referred to it as an appeal instead of an application to be set aside, and generally did not give the impression of being fair. The applicant also claims that the law was breached as his lay advisor was refused permission to enter the hearing by the usher as he arrived slightly late.        With respect to the Court of Appeal hearing the applicant states that it was not what he expected according to the guidelines he received from the Court. He was questioned in detail for which he was not prepared and considered this as unfair.        The applicant also complains that he received no public hearing within the meaning of Article 6 at any stage of the proceedings.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 2 February 1996 and registered on 12 November 1996.        On 21 May 1997 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 6 August 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 1 October 1997.   THE LAW   1.    The applicant complains that, in spite of his express requests, he was not granted a public hearing within the meaning of Article 6 (Art. 6) 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 ... . Judgment shall be pronounced      publicly but the press and public may be excluded from all or      part of the trial in the interest of morals, public order or      national security in a democratic society, where the interests      of juveniles or the protection of the private life of the parties      so require, or to the extent strictly necessary in the opinion      of the court in special circumstances where publicity would      prejudice the interests of justice."        The Government accept that Article 6 para. 1 (Art. 6-1) of the Convention is applicable in this case.        The Government submit that the applicant has not exhausted all domestic remedies available, as he was entitled to appeal against the decision of the District Judge (the Arbitrator) to hold the arbitration hearing in private, pursuant to Order 13, Rule 1(10) of the County Court Rules.        The Government also submit that the hearing of the arbitration in private was not in breach of Article 6 (Art. 6) as exclusion of the public was necessary in the interests of justice. They claim that small claims are referred to arbitration because such a procedure enables disputes to be resolved speedily, informally and inexpensively and that if proceedings were heard in public at a standard county court trial, a wealthier party would use the threat of an order for legal costs as a weapon against the poorer party. The arbitration procedure is in fact designed to promote equality of arms in relation to small claims, which also do not involve any issues of public interest or importance. The Government also compare the reasoning to hold the arbitration hearings in private (possible friendly settlement) with that of the Commission and its hearings in chambers.        The Government further submit that, in any event, the hearing before the Court of Appeal made good any shortcomings before the Arbitrator. They underline that the Court of Appeal considered all of the factual and legal points advanced by the applicant and rejected each of them as unsustainable.        The applicant considers that he did exhaust domestic remedies: he applied for the first instance hearing to be in public, and raised the matter in his application for leave to appeal. He rejects the Government`s reasons for not holding a hearing in small claims cases as "sophistry" and points out that the Court of Appeal hearing was no more than   consideration of whether to grant leave to appeal.        As to the Government`s claim that the applicant should have appealed the refusal to hold the hearing in private, the Commission recalls that the purpose of the rule of exhaustion of domestic remedies is to enable the State to have the opportunity to redress the alleged damage by domestic means within the framework of its own legal system before proceedings are brought in an international court (see No. 12945/87, Dec. 4.4.90, D.R. 65, p. 173). The Commission further recalls that where there is a choice of several remedies open to the applicant, Article 26 (Art. 26) of the Convention must be applied in a manner corresponding to the reality of the applicant`s situation in order to guarantee him or her effective protection of rights and freedoms set forth in the Convention and that it is in the first place for the applicant to select which legal remedy to pursue (see No. 19092/91, Dec. 11.10.93, D.R. 75, p. 207 with further reference on p. 215). In the present case, the applicant raised before the Court of Appeal the matter of the public hearing, and was given the clear reply that the judge was entitled not to hold the hearing in public.          In the light of the Court of Appeal's finding that, in effect, the absence of a public hearing is compatible with domestic law, the applicant cannot be said to have failed to exhaust domestic remedies by not appealing the decision not to hold the hearing in public.        The Commission considers, in the light of the parties' submissions, that this part of the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits.   The Commission concludes, therefore, that this part of the application is not 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 complains under Article 6 (Art. 6) of the Convention that none of the hearings were fair, in particular that he was not able to present his case properly, that the rules about calling witnesses and bringing other evidence were breached in that inadequate disclosure   was made to the applicant prior to the hearings, within the required time-limit. The applicant alleges misconduct by the District Judge as he refused to strike the case out as he could have and allowed witnesses to misbehave towards the applicant, and also by the Recorder as he was generally not fair and did not give sufficient weight to the breaches of the rules. Also, the Court Usher did not allow the applicant`s lay adviser, arriving slightly late, to enter the Chamber in which the hearing was held.        The Commission first 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 constant case- law (see, for example No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45; No. 19890/92,   Dec. 3.5.93, D.R. 74 p. 234).        In assessing the fairness of proceedings the Commission must consider them as a whole and must ascertain that, in their entirety, they were fair (see, inter alia the Stanford v. the United Kingdom judgment of 23 February 1994, Series A no. 282-A, p. 10, para. 24). In particular, the Commission must ascertain that every party to such proceedings has a reasonable opportunity of presenting his or her case to the court under conditions which do not place him or her at substantial disadvantage vis-a-vis the other party (see inter alia No. 10938/84, Dec. 9.12.86, D.R. 50, p. 115).        The Commission notes that the Court of Appeal dealt with each of the applicant`s complaints and found no substance in any of them. The Commission notes, in particular, that the Court of Appeal found that the "technical breaches" of the County Court Rules as to witnesses did not affect the fairness of the proceedings, given the informal nature of the arbitration proceedings.        The Commission further recalls that Article 6 (Art. 6) of the Convention does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (in the criminal context, see Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para. 46). It was therefore in the first place for the domestic courts to determine which evidence should be admitted,   provided that, no unfairness occured, within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The Commission notes that under the Convention, there is no necessary link between the "technical breaches" of the rules and the fairness of proceedings within the meaning of Article 6 (Art. 6) of the Convention. The question is whether the proceedings were fair, and the Commission considers that none of the applicant`s allegations as to unfairness constitute factors of such a decisive nature as to affect the fairness of the proceedings as a whole. Accordingly, the Commission considers these complaints 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 complaint that he received no public hearing within      the meaning of Article 6 para. 1 of the Convention; and        by a majority,      DECLARES INADMISSIBLE the remainder of the application.     M.F. BUQUICCHIO                                M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber