AS TO THE ADMISSIBILITY OF
Application No. 24828/94
by A. G.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
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 16 March 1994 by
A. G. against the United Kingdom and registered on 5 August 1994 under
file No. 24828/94;
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
11 December 1995 and the observations in reply submitted by the
applicant on 27 March 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1943 and resident in
London. He is represented before the Commission by Jay Benning Levine
& Peltz, solicitors practising in London.
The facts of the case as submitted by the parties can be
summarised as follows.
a. Particular circumstances of the case
The applicant was a company director. In 1981, the company was
investigated for suspected tax fraud. The investigation, which lasted
for several years and involved enquiries in five countries, revealed
a criminal scheme for tax evasion related to transactions with scrap
gold jewellery. It was established that the applicant and other
persons failed to make appropriate returns for VAT (value added tax)
to HM Customs and Excise and thus unlawfully evaded the payment of
several millions of pounds in taxes.
At the time the investigation started the applicant lived in
Switzerland, but later returned to the United Kingdom. On 23 March
1982 he was arrested and thereafter charged with eight offenses related
to untrue declarations, tax evasion and conspiracy to defraud the
customs. He was committed for trial on 28 January 1985 as one of
several defendants, who allegedly participated in the conspiracy.
Three separate trials were ordered as the evidence as it emerged at the
committal proceedings indicated three phases of criminal activity.
The first trial, which did not involve the applicant, started in
October 1985 and was concluded in April 1986. The second trial
collapsed following the absconding of all the defendants. The third
trial involving the applicant commenced on 26 January 1987.
At the conclusion of his trial, the applicant was convicted on
two charges of conspiracy and on 17 June 1987 sentenced to four years'
imprisonment. The other two defendants in the applicant's trial were
also convicted and sentenced to three and two years' imprisonment
respectively.
On 17 June 1987 the judge also made a criminal bankruptcy order
against the applicant in the sum of £ 1,650,000.
The applicant's appeal against conviction to the Court of Appeal
was adjourned pending the outcome of an appeal in another case raising
similar points of law. This case was ultimately determined in December
1988 in the House of Lords and the applicant's appeal proceeded.
In June 1989, the applicant was released from prison having
served two years of his sentence.
The applicant's counsel proceeded to formulate grounds of appeal
in light of the House of Lords judgment. A transcript of the summing-up
at the applicant's trial was not provided until the end of 1989. The
applicant was informed in 1990 that the transcript of evidence was not
available since the shorthand writers used at the time had gone into
liquidation and the notes were no longer available.
The applicant's appeal was heard and dismissed by the Court of
Appeal on 11 June 1991.
Meanwhile, on the basis of the criminal bankruptcy order, on
1 September 1987, HM Customs and Excise had presented a bankruptcy
petition against the applicant. On 17 November 1987, at a hearing in
this matter, the applicant's solicitor requested an adjournment pending
the appeal against conviction. The bankruptcy proceedings were
adjourned for 26 January 1988. Thereafter, upon the applicant's
requests, the proceedings were adjourned again on the same ground for
29 March 1988, 8 June 1988, 4 October 1988, 31 January 1989, 11 April
1989, 20 June 1989 , 30 October 1989, 12 January 1990, 26 March 1990,
27 July 1990, 4 October 1990 and 21 December 1990.
On 21 December 1990 the applicant did not appear in court. The
case was again adjourned for 8 March 1991.
On 8 March 1991 the applicant did not appear in court. On the
same day the court granted HM Customs an order of bankruptcy against
the applicant.
The applicant did not receive notification of the order until
23 September 1993 when a copy addressed to him at a former address was
forwarded by a neighbour. It later transpired that no effort had been
made to contact the applicant between 8 March 1991 and the summer of
1993, when a new officer was appointed at the office responsible for
the serving of the bankruptcy order.
b. Relevant domestic law and practice
Criminal bankruptcy orders were provided for in sections 39-41
and schedule 2 of the Power of Criminal Courts Act 1973. Under these
provisions where a defendant was convicted of a relevant offence, the
court could make an order for an amount of money in issue in the
criminal proceedings. The effect of this order was that the offender
was treated as having committed an act of bankruptcy. A creditor could
then petition the court, in accordance with Section 264(1)(d) of the
Insolvency Act 1986, for the offender's bankruptcy pursuant to the
order.
Where a bankruptcy was made under these provisions it would
continue for a minimum of five years. After the expiry of that period,
the bankrupt could apply to the court for discharge of the order.
Section 40(2) of the 1973 Act provides that where a person
successfully appeals against his conviction of an offence by virtue of
which a criminal bankruptcy order was made, the court shall rescind the
order unless the conviction is only partly quashed and a criminal
bankruptcy order could have been made without reference to the offenses
in respect of which the conviction is quashed. However, Section 277(2)
of the Insolvency Act 1986 provides that the fact that an appeal is
pending against a conviction by virtue of which a criminal bankruptcy
order was made does not affect any proceedings on a petition under
Section 264(1)(d).
On 3 April 1989 the power of making criminal bankruptcy orders
was abolished by section 101 of the Criminal Justice Act 1988 and was
replaced by confiscation orders whose aim is to confiscate the proceeds
of a criminal offence. The revocation was without prejudice to
existing criminal bankruptcy cases.
COMPLAINTS
The applicant complains of the length of the bankruptcy
proceedings in which context he relies indirectly upon the excessive
delay in the criminal proceedings, in particular, the four years to
determine his appeal, which had an effect on the proceedings in
bankruptcy.
The applicant also complains that the bankruptcy order violates
his right to respect for his private life. In this context, he refers
to his inability to own or control property, to enter contracts or take
credit. In practice, he is rendered unemployable and the effects will
cease at the earliest in March 1996. He submits, inter alia, that the
order is not "in accordance with the law" due to the excessive length
of proceedings and that it is not "necessary", being wholly
disproportionate to any aim pursued.
The applicant further complains of disproportionate interference
with his rights under Article 1 of Protocol No. 1 to the Convention;
of discrimination under Article 14 in conjunction with Article 8 and
Article 1 of Protocol No. 1 in that he was penalised in comparison to
his co-defendants as the result of pursuing an appeal which delayed the
imposition of the bankruptcy order and prolonged its ultimate effect;
and that he is without remedy contrary to Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 March 1994 and registered
on 5 August 1994.
On 28 June 1995 the Commission decided to communicate the
application.
The Government's written observations were submitted on
11 December 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 27 March 1996, also after an
extension of the time-limit.
THE LAW
1. The applicant complains of the excessive delay in the proceedings
in his case. He invokes Article 6 para. 1 (Art. 6-1) of the Convention
which provides in its first sentence:
"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."
The Government submit that the applicant does not complain of the
length of the criminal proceedings against him. In any event, these
proceedings were very complex and involved enquiries in five countries
and the investigation of over forty businesses and thousands of bank
transactions.
In respect of the length of the bankruptcy proceedings the
Government submit that the period to be considered starts on
1 September 1987, when bankruptcy proceedings were instituted, and ends
on 8 March 1991, when a bankruptcy order was made. The Government
submit that even though this order was not served on the applicant
until September 1993, this did not mean that there was a delay in the
determination of his civil rights and obligations. It was not the
notification of the bankruptcy order which was determinative of the
applicant's status as a bankrupt but rather the making of the order by
the court. Thus, irrespective of the date of notification, the date
at which the applicant can apply for discharge of his bankruptcy is
8 March 1996, five years after the making of the order against him.
Therefore, the applicant has not suffered any prejudice as a
consequence of not becoming aware of the order before September 1993.
The Government further submit that virtually all delays between
September 1987 and March 1991 were the direct result of the applicant's
petitions for adjournment of the proceedings and that therefore they
cannot give rise to a violation, by the State, of his rights under
Article 6 (Art. 6) of the Convention.
In any event, if the delay between March 1991 and September 1993
were to be taken into account, the Government submit that the applicant
knew that a bankruptcy order would be made following the dismissal of
his appeal against conviction and that therefore it was surprising that
he failed to enquire, for nearly three years, into the status of the
bankruptcy proceedings.
The applicant replies that the relevant initial date for
determining the length of the proceedings is the date of his arrest on
criminal charges in March 1982, because the criminal proceedings
generated the bankruptcy proceedings. The period to be considered
ended on 23 September 1993, when he was informed of the bankruptcy
order, and not on 8 March 1991, when the bankruptcy order was made.
This is so because it would be absurd to accept that a determination
of civil rights is concluded where the order to that effect has not
been notified to the party concerned.
Accordingly, the applicant submits that the length of the
bankruptcy proceedings was almost 12 years - a period which was of
itself excessive and incompatible with the "reasonable time"
requirement under Article 6 para. 1 (Art. 6-1) of the Convention.
The applicant further explains in detail why he considers that
significant delays between 1982 and 1987 are imputable to the State.
Furthermore, from June 1987 until December 1988 no action was
taken by the courts in the applicant's appeal against conviction. It
was merely adjourned pending the outcome of an appeal in another
similar case. A delay in the criminal proceedings between December
1988 and June 1991 was also imputable to the State as it was caused by
problems related to the unavailability of certain transcripts.
The applicant submits that he cannot be blamed for having
requested the adjournment of the bankruptcy proceedings pending the
outcome of his appeal against conviction. It was legitimate to do so
as the outcome of the appeal was important for the bankruptcy issue.
Also, the applicant asserts that the delay in the serving of the
bankruptcy order, between March 1991 and September 1993 is clearly the
responsibility of the State, no reasonable explanation having been
provided. The Government's argument that the applicant should have
enquired himself as regards the status of the proceedings is, in the
applicant's view, inconsistent with the principles of law and
procedure.
The Commission recalls that the reasonableness of the length of
proceedings is to be assessed in light of the particular circumstances
of the case, regard being had to the criteria laid down in the Court's
case-law, in particular the complexity of the case, the applicant's
conduct and that of the competent authorities (see eg. Eur. Court HR,
Kemmache v. France judgment of 27 November 1991, Series A no. 218,
p. 27, para. 60).
Insofar as the applicant may be understood as complaining of the
length of the criminal proceedings against him, the Commission finds
that he has submitted his application to the Commission more than six
months after these proceedings were concluded in 1991 and that
therefore he has not complied with the requirements of Article 26
(Art. 26) of the Convention.
As regards the bankruptcy proceedings the Commission notes that
they did not commence in 1982, as claimed by the applicant, but in
1987, when a criminal bankruptcy order was issued and when HM Customs
instituted bankruptcy proceedings. It was then that the applicant's
position can be said to have been directly affected by the threat of
bankruptcy. In view of its final findings in the present case the
Commission need not decide whether the initial moment to be taken into
account should be 17 June 1987, when the criminal bankruptcy order was
made, or 1 September 1987 when HM Customs instituted bankruptcy
proceedings.
As the applicant did not discover that he had been made bankrupt
until 23 September 1993, the relevant period is therefore 6 years and
several weeks.
Examining the reasons which caused this delay, the Commission
notes that the applicant requested himself the adjournments between
November 1987 and December 1990, pending the hearing of his appeal
against conviction. It is true that the outcome of the appeal could
have an important impact on the bankruptcy proceedings, as provided for
under Section 40(2) of the Power of Criminal Court Act 1973. However,
under Section 277(2) of the Insolvency Act 1986 the bankruptcy court
was not bound to await the outcome of the criminal proceedings. In
these circumstances the adjournments were not indispensable, but they
were, at the same time, in the applicant's interest. The court gave
the applicant a chance to avoid the effects of a bankruptcy order, if
his appeal against conviction would have been successful. Therefore,
the Commission finds that the delay of three years between November
1987 and December 1990 cannot engage the responsibility of the State.
While there was an apparent lapse of time between the issuing of
the bankruptcy order against the applicant on 1 March 1991 and his
gaining knowledge of it on 23 September 1993, it does not appear that
the applicant was in any way prejudiced thereby. Indeed, he was
completely unaware of its existence. Moreover, irrespective of the
delay in the notification, the applicant was in a position to apply for
discharge of his bankruptcy on 8 March 1996, five years after the
making of the order against him.
In these circumstances, the Commission finds that the facts of
the case do not disclose an appearance of a breach of the applicant's
right to a trial within a reasonable time within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains of the effect on his private life
and the enjoyment of his possessions of the bankruptcy. He complains
of discrimination as regards the other co-defendants in the proceedings
and the lack of any effective remedy. He invokes Articles 8, 13 and 14
(Art. 8, 13, 14) of the Convention and Article 1 of Protocol No. 1
(P1-1).
The Commission has examined the applicant's complaints as they
have been submitted by him. However, to the extent that they fall
within the scope of the provisions invoked and to the extent that they
have been substantiated, the Commission does not find that they
disclose any appearance of a violation of the rights and freedoms
guaranteed under the Convention and its protocols.
It follows that this part of the application must be rejected as
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 APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy