CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 avril 2006

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Casadevall , President ,   Sir   Nicolas Bratza ,   Mr   M. Pellonpää ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and Mr M. O’Boyle, Registrar, Having regard to the above application lodged on 3 August 2004, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together. Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Timothy Upton, is a British national who was born in 1949 and lives in Bradford. The respondent Government are represented by their agent, Mr John Grainger, of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. 1. The particular circumstances of the case The applicant’s grandfather made a will in 1930 (and a codicil in 1935) in which he left his residuary estate (after payment of certain annuities) on trust for his children in varying shares in the first place and, after they died, for their children. If a branch failed, the estate was to pass to the other branches. The grandfather died in 1937. The applicant’s grandfather had four children. The oldest was the applicant’s father, born in 1908. The second oldest, born in 1910, died in 1940 without issue. The third child, the only daughter, was born in 1915 and the youngest child was born in 1919. In 1942, the youngest son married Leslie Jean Bray. Two children were born. In 1946 Leslie Jean Upton (nee Bray) left her husband and went, with the two children, to live with his brother, the oldest son. The applicant was born to the couple in 1949. In 1953 the applicant’s mother died, and in 1955 the applicant was adopted by his father. In 1997, the applicant’s grandfather’s daughter died without issue. The applicant’s father died in 2000, providing in his will that all of his estate passed to his son, the applicant. He was entitled at his death to a three-fifths share of the income from his father’s estate. The applicant claimed, in the High Court, to be entitled to his father’s three-fifths share of the income. The executors considered that he was not entitled to any share because, as he was illegitimate, he could not inherit as a “child” of his father under the 1930 will and codicil. On 29 July 2004 in the Leeds District Registry of the High Court, Judge Behrens found that the applicant was not entitled to take any share under his grandfather’s will. He found that it was a well-established principle that a gift to a child or children was, apart from statute, to be construed as a gift to legitimate children unless it was possible to find a contrary intention in the will. Sections 1 and 19(1)(b) of the Family Law Act 1987, which improve the position of illegitimate children (including in the interpretation of wills), only apply to events after 4 April 1988, and so could not assist the applicant. Other statutes, which dealt with the effect of legitimation where a child’s parents married after he was born, did not assist the applicant as the applicant’s parents never married. The Adoption Act 1926, which was in force at the time of the applicant’s grandfather’s will and codicil (1930 and 1935) provided that adoption did not confer any right to or interest in property as a child of the adopter, unless a contrary intention appeared in any disposition such as a will. There was no contrary intention and so at the date of death adopted children could not benefit under the will. Again, later amendments to the law were of no help to the applicant because they only applied prospectively.   Finally, Judge Behrens considered the points raised by the applicant in connection with the Convention. He noted that Article 1 of Protocol No. 1 applied only to existing possessions, but that the applicant had never been entitled to any of his grandfather’s estate. He also noted that the litigation was between private individuals, where the cases of Marckx and Inze had both involved claims against the State. Finally, he recalled that the legislation relating to adoption and illegitimacy had been changed so that there was now no discrimination on grounds of adoption or illegitimacy save in cases where the will was made before the relevant date. The applicant’s criticism was therefore criticism that the amending legislation was not retrospective so as to affect the interpretation of existing instruments. He considered that there were sound reasons, such as the need for legal certainty, for not making such legislation retrospective. He thus agreed with the applicant that the effect of the rules as to legitimacy and adoption in a case where the will was made in 1930 discriminated against him as an illegitimate son of his father, but he did not consider that the position was altered by the Human Rights Act 1998.   Judge Behrens therefore concluded that the applicant was not a legitimate child of his grandfather within the meaning of his grandfather’s will, and that the disputed share of the estate passed to the applicant’s grandfather’s youngest son. He also refused leave to appeal, but, according to the Government, extended the time for appealing. On 26 January 2005, after the time limit for appealing had expired, the applicant filed an applicant’s notice with the Court of Appeal, seeking an extension of the time for filing a notice. On 31 January 2005 he sought a further lengthy extension of time in which to lodge a bundle of documents and generally to progress his application. An extension was granted to 17   February 2005. On 16 February 2005 the applicant wrote to the Civil Appeals Office, explaining that he would be unable to comply with the deadline as he had gone to Australia. He indicated that he wished to withdraw his application and sought a refund of his fee. He was sent “dismissal with consent” forms to complete and return, and was told that if the defects in his bundle were not remedied by 18 March 2005, his application would be dismissed unless he provided a sufficient reason. Nothing more was heard from the applicant, and on 23 March 2005 the application was dismissed for failure to complete the dismissal with consent forms, and for failure to progress the case within the Civil Procedure Rules and Practice Directions. On 9 August 2005, the applicant sought permission to reinstate, and the Court of Appeal (Civil Division) dismissed the application after a hearing on 14 November 2005. Lord Justice Parker noted that the effect of reinstatement would be to grant an extension of time of over a year, and he could see no grounds for granting such a substantial extension. Time limits were there to be complied with unless there were good reasons for failing to do so, and the applicant had shown no good reasons. Lord Justice Parker also referred to the applicant’s reliance on the 12-month period for bringing proceedings under section 6 of the Human Rights Act. However, the action before the court was not a proceeding under sections 6 or 7 of that Act, and the 12-month period had no application. Lord Justice Parker did not accept the applicant’s submissions that it was not his fault that he was so substantially out of time, and refused to reinstate the earlier application which had been struck out. The judge mentioned in passing that he considered that the proposed appeal had no real prospect of success, and indeed that the judge’s conclusions as to the effect of English statute law were plainly right. He underlined, however, that the application was dismissed for failure to provide good reason for the substantial delay. 2. The relevant domestic law The Human Rights Act 1998, which entered into force on 2 October 2002, provides as follows: “2. (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any- (a) judgment ... of the European Court of Human Rights ... ... so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen ... 3.   (1) So far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. (2)   This section- (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation ... 4.   (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility .. (6) A declaration under this section...- (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.” In Wilson and others v. Secretary of State for Trade and Industry ([2003] UKHL 40), the House of Lords considered that the courts’ power to make a declaration of incompatibility in respect of legislation only arose where it was not possible to give effect to the statute in a manner compatible with the Convention. Further, Parliament had not intended section 3 (1) of the Human Rights Act 1998 to have the effect of altering the existing rights and obligations of parties to an agreement made before the section entered into force. COMPLAINTS The applicant alleges violations of Articles 8, 14 and 17 of the Convention, and of Article 1 of Protocol No. 1. THE LAW The applicant alleges violations of Article 8, 14 and 17 of the Convention and of Article 1 of Protocol No. 1. Articles 8 and 14 and Article 1 of Protocol No. 1 provide, so far as relevant, as follows: Article 8 “1.     Everyone has the right to respect for his ... family life.... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society...” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ...birth or other status.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Government noted that, unusually, the domestic proceedings and the Strasbourg proceedings had been run concurrently by the applicant, and in their letter of 19 December 2005, dealt only with the exhaustion of domestic remedies issues. They submitted that the relevant principle was that the Strasbourg organs should primarily be a supervisory authority of last resort, and the main business of enforcing human rights should be carried out by domestic authorities who were in the best position to do so. They noted, for example, that in the case of Cardot (Cardot v. France , judgment of 19   March 1991, Series A no. 200, § 34), the Court held that the non-exhaustion rule requires that complaints intended to be made subsequently at Strasbourg should have been made to the domestic courts at least in substance, and in compliance with the formal requirements and time limits laid down in domestic law. The Government considered that, as the applicant failed to pursue his application for leave to appeal within the time limits, and then, despite a warning, failed to pursue a further application which was dismissed on 23   March 2005, the clear decision of the Court of Appeal of 14 November 2005 meant that the applicant had failed to make use of the remedies available to him to appeal against the decision of Judge Behrens, and had therefore failed to exhaust domestic remedies as required by Article 35 of the Convention. With reference to the case of Pla ( Pla and Puncernau v. Andorra , no. 69498/01, ECHR 2004-..) they added that it was not clear to what extent, in the brief procedure in the application for reinstatement of the right to appeal, the Court of Appeal had been apprised of the complexities of that case (which is not referred to in the judgment of 14 November 2005). They noted, however, that if the effects of that case had been argued in full, it would at least arguably have been open to the Court of Appeal to consider whether the will should have been construed solely in accordance with the pre-existing English rules on testamentary dispositions, or whether the case-law of the Court, and in particular the case of Pla , should also have been taken into account, such that the will would have been construed by reference to the law applicable at the time of the trial, in 2004. Referring to section 2 of the Human Rights Act 1998, the Government commented that in the light of Pla it was at least arguable that the Court of Appeal would have come to a different conclusion from Judge Behrens. Because of the applicant’s failure to pursue his domestic remedies, the Court of Appeal was deprived of that opportunity. The applicant did not accept the Government’s contentions. He recalled, in particular, that the requirement of exhaustion of domestic remedies is a flexible one, and must be applied without excessive formalism. There is no requirement to have recourse to remedies which are inadequate or ineffective, and there may be special circumstances which absolve an applicant from exhausting the remedies at his disposal. The applicant emphasised that it was a long-established principle of domestic law that words and phrases in an instrument are to be given the same meaning throughout the currency of the instrument as those words and phrases had when the instrument was made, unless that meaning is subsequently negatived by statute ( Shore v. Wilson (1842) 9Cl & F 355, HL). He added that it was equally clear that at common law references to the children or issue or other relatives of a person prima facie extend only to persons who are themselves legitimate and (in the case of issue or other relatives) claim descent or kinship exclusively through legitimate persons. He referred to the cases referred to by Judge Behrens, and also to the House of Lords’ decision in Hill v. Crook ((1873) LR 6 HL 265). The state of the English authorities meant that to require the applicant to pursue an appeal would be purely formalistic, and such an appeal would have been bound to fail, as counsel for the respondent bank and the Court of Appeal recognised. As to the claim that the applicant should have given the Court of Appeal the opportunity to consider the case of Pla , the applicant first pointed out that Judge Behrens delivered judgment at first instance some six days before the Court gave judgment in Pla . It was likely that copies of the judgment in Pla were available to the Court of Appeal judges in November 2005: the applicant considered that it was plain why the Court of Appeal did not consider Pla to be relevant. In particular, the applicant contended that the Court’s judgment in Pla could have no effect on the decision in the present case because of the House of Lords’ decision in Wilson v. First County Trust (No. 2) ([2004] 1 AC 816), where the House of Lords unanimously found that Parliament did not intend the Human Rights Act to be applied to transactions and events predating the coming into force of the Act and so to alter the legal consequences of those transactions and events. Accordingly, Pla could have no effect whatever on the outcome as a matter of English domestic law in cases, such as the present one, involving established rights of succession. The Government’s suggestion that the applicants should have raised Pla before the Court of Appeal was therefore artificial. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective ( e.g. Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV; Aksoy v. Turkey , no. 21987/93, §§ 51-52, ECHR 1996-VI; B and L v. the United Kingdom , no. 36536/02 (dec.), 29 June 2004). In a common law system, where the courts extend and develop principles through case-law, it is generally incumbent on an aggrieved individual to allow the domestic courts the opportunity to develop existing rights by way of interpretation (see E.N. v. Ireland , no. 18670/ 91, Commission decision of 1 December 1993, and Whiteside v. the United Kingdom, no. 20357/92, Commission decision of 7   March 1994). The Court has held on a number of previous occasions that that a declaration of incompatibility issued by the domestic courts to the effect that a particular legislative provision infringed the Convention cannot be regarded as an effective remedy within the meaning of Article 35 § 1. As stated in Hobbs v. the United Kingdom (dec.), no. 63684/00, ECHR   2002-...): “In particular, a declaration is not binding on the parties to the proceedings in which it is made. Furthermore, by virtue of section 10(2) of the 1998 Act, a declaration of incompatibility provides the appropriate minister with a power, not a duty, to amend the offending legislation by order so as to make it compatible with the Convention. The minister concerned can only exercise that power if he considers that there are ‘compelling reasons’ for doing so.” Similar reasoning was applied in Walker v. the United Kingdom (dec.) , no.   37212/02, 16 March 2004, Pearson v. the United Kingdom (dec.), no.   8374/03, 27 April 2004 and B and L v. the United Kingdom (referred to above). Those cases dealt exclusively with declarations of incompatibility under section 4 of the Human Rights Act, and did not refer to sections 2 and 3 of that Act, which require the courts to take account of the Convention and its case-law, and to interpret legislation in a manner compatible with the Convention wherever possible. The Court considers that where it is arguably possible to interpret the domestic law in a manner compatible with the Convention without applying for a declaration of incompatibility, it is incumbent on an applicant in England and Wales after the entry into force of the Human Rights Act to raise the question, as part of the process of raising in substance before the domestic courts the complaint which will subsequently be made in Convention proceedings. As noted above, an application for a declaration of incompatibility as such will often not be an effective remedy because it depends on a decision of the executive for its effectiveness. However, where an applicant requests a Convention-compliant interpretation under section 3 of the Human Rights Act, he may well in practice at the same time apply for a declaration of incompatibility. The Court notes that the applicant – who was evidently initially not satisfied with the first instance judgment, and intended to appeal - failed to comply with a series of procedural requirements for putting his case to the Court of Appeal. He first failed to comply with the (extended) period for lodging his appellant’s notice, then he failed to comply with an extension granted for lodging his bundle of documents and progressing his application, and finally he failed to return the appropriate forms for dismissal with consent. The result of all these failures was that the application was dismissed on paper on 23 March 2005. The applicant thus failed signally to progress his appeal in accordance with domestic procedural rules. Further, by the time of the applicant’s various applications to the Court of Appeal - for leave to appeal, for extensions of the time for appealing and for re-instatement of his applications which had been struck out - the case of Pla had been determined by a judgment of 13 July 2004 which became final on 15 December 2004. In that case, the Court found a violation of Article   14 in conjunction with Article 8 where the Andorran courts had interpreted a 1939 will (the testatrix died in 1949) “in the light of the social conditions existing when the will was made or at the time of the testatrix’s death”, thereby ignoring the profound social, economic and legal changes which had occurred in the meantime ( Pla and Puncernau v. Andorra , § 62, ibid ). It is not for the Court to speculate on how the United Kingdom courts would deal with this approach in the context of the principle in Shore v. Wilson and the dicta of the House of Lords in Wilson , but if the applicant had referred to the issue in his submissions to the Court of Appeal, the domestic courts would have had to come to a view of how the Court’s findings in Pla should be interpreted in the United Kingdom context. There is, however, no indication that the applicant raised the case of Pla in any of his various applications to the courts, even in the hearing of 14 November 2005 on his application to reinstate the dismissal of 23 March, by which time he undoubtedly knew of the judgment in the case of Pla because it had been referred to in the Court’s communication letter of 25 September 2005. Therefore, in addition to failing to comply with the domestic procedural rules for applying for leave to appeal, he also failed to raise an essential point in his favour, namely, the question of how, in the light of a recent Convention answer to broadly the same question, the domestic courts would approach the question of whether the way the Convention rights were incorporated into domestic law applied to transactions and events predating the coming into force of the Human Rights Act, so as to alter the legal consequences of those transactions and events. The Court finds that the applicant has failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, and that the application must be rejected pursuant to Article 35 § 4. For these reasons, the Court unanimously Declares the application inadmissible.   Michael O’Boyle   Josep Casadevall Registrar President