A.P.B LTD., A.P.P AND E.A. B. v. THE UNITED KINGDOM



                     AS TO THE ADMISSIBILITY OF

                      Application No. 30552/96

                      by A.P. B. Ltd., A.P.P. and E.A. B.

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 15 January 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 8 December 1995

by A.P. B. Ltd., A.P.P. and E.A. B. against the United Kingdom and

registered on 22 March 1996 under file No. 30552/96;

     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

     29 May 1997 and the observations in reply submitted by the

     applicants on 31 July 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first applicant is a company incorporated under the laws of

England and Wales in 1987 (hereinafter "the applicant company"). It is

an offshore advisory and corporate finance company. The second

applicant is a British citizen born in 1946. He is a financial

consultant and the managing director of the applicant company. He

resides in London. The third applicant is a Finnish citizen born

in 1948. She is a consultant and resides in Brussels. Until May 1993

she was a director of the applicant company. The second and third

applicant are the only shareholders of the applicant company. All three

applicants are represented in the proceedings before the Commission by

Speechly Bircham, a firm of solicitors in London.

     The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

A.   Particular circumstances of the case

     In 1988 the applicant company became member of the Investment

Managers Regulatory Organisation (hereinafter "IMRO"). IMRO is a self-

regulatory body established under the auspices of the Securities and

Investment Board Ltd. to which the Secretary of State has delegated a

number of his functions under the Financial Services Act 1986, in

accordance with section 114 thereof. IMRO regulates the provision of

financial and investment advice. Its members are authorised to provide

such advice in the United Kingdom.

     On 4 June 1993 the Emergency Powers Committee of IMRO served an

intervention notice on the applicant company, preventing it from

marketing investment products to new clients without IMRO's prior

approval. The Investigation Committee of IMRO authorised a formal

investigation into the applicant company's business to commence with

effect from 1 July 1993. On 7 July 1993 the Emergency Powers Committee

of IMRO served a second intervention notice on the applicant company

forbidding it from conducting any investment business and from

disposing of or otherwise dealing with its own or its customers' assets

without IMRO's prior approval.

     On 9 July 1993 the applicant company applied to the Emergency

Powers Committee for permission to make a loan in order to pay its

solicitors' fees. On 12 July 1993 the applicant company appealed

against the two intervention notices and applied for their stay.

     On 13 July 1993 the Emergency Powers Committee authorised the

making of the loan. On 14 July 1993 IMRO's Appeal Tribunal, composed

of a former Circuit Court judge, heard the application for a stay of

the intervention notices and decided not to grant it. On 15 July 1993

the applicant company was informed that the notices had not been stayed

and that its substantive appeal would be heard on 22 November 1993.

     On 15 July 1993 the police conducted a search of the premises of

the applicant company. An investigation by the Serious Fraud Office was

also initiated.

     On an unspecified date the applicant company withdrew its appeal

against the intervention notices, after it had agreed with IMRO on a

budget which would have covered reasonable operating expenses of its

business including the fees of legal advisers.

     Progress reports were made to the Investigation Committee in July

and August 1993 and the investigating team's findings were presented

to that Committee at the end of 1993. On 26 January 1994 the

Investigation Committee resolved that the applicant company might not

be a fit and proper person to carry on its permitted business.

     In March 1994 the Serious Fraud Office informed IMRO and the

applicants that no action would be taken against the applicant company

as no evidence of fraud, dishonesty or conspiracy had been discovered.

     On 31 March 1994 IMRO informed the applicant company that its

Investigation Committee had decided to initiate proceedings with a view

to determining whether the applicant company was a fit and proper

person to conduct investment business ("fitness reference"). The

applicant company was provided with a written statement of the grounds

on which the reference was made and of the facts and matters leading

to it.

     On 19 August 1994 the applicant company was informed that

Mr R QC, a senior barrister in independent practice, had been appointed

Chairman of the Membership Tribunal which would decide on the fitness

reference. Mr R was one of the members of the Panel which is drawn up

by IMRO in accordance with its Rules and which is composed of

individuals considered suitable and eligible to sit on Membership

Tribunals. Mr R had no prior involvement in the applicant company's

case and was chosen, as IMRO's Rules provided, by the Chairman of the

Panel, a former Court of Appeal judge. The applicant company was

informed of its right to challenge Mr R's appointment. On

24 August 1994 the applicant company agreed to Mr R's appointment.

     On 19 October 1994 the applicant company stated its position on

the fitness reference.

     On 1 December 1994 the applicant company was informed that the

Chairman of the Panel had appointed, from among the members of the

Panel, the other two members of the Membership Tribunal. The applicant

company had asked for the Tribunal to be constituted by five members,

but its request was not granted. One of the members of the Tribunal,

Mr D, was appointed pursuant to a rule which provided for the

participation of a person from the same area of expertise as the

applicant company. The applicant company was informed of its right to

challenge the two members' appointment. It did not avail of this right.

     On 2 December 1994 a preliminary hearing for directions took

place before Mr R, the Chairman of the Membership Tribunal. The

applicant company asked for the disclosure of certain documents. It

appears that IMRO opposed the disclosure of some of them on the basis

of public interest immunity. On 5 December 1994 Mr R ordered the

disclosure of a number of the documents which the applicant company had

requested.

     On 27 February 1995 the applicant company, represented by

counsel, appeared before the IMRO Membership Tribunal. On 29 March 1995

the Tribunal considered that the applicant company had failed in its

duty to act with due skill and diligence in the conduct of its

permitted business and, as a result, it was not a fit and proper person

to carry on investment business. The applicant company was ordered to

pay IMRO's costs.

     The applicant company appealed, but on 12 June 1995, after an

oral hearing at which it was represented by counsel, its appeal was

dismissed by the IMRO Appeal Tribunal, which was composed of a former

Court of Appeal judge.

     On 1 December 1995 the applicant company's membership of IMRO was

terminated.

B.   Relevant domestic law and IMRO rules

     The Financial Services Act 1986 provides as follows:

     Section 3: Persons entitled to carry on investment business

     "No person shall carry on, or purport to carry on, investment

     business in the United Kingdom unless he is an authorised person

     under Chapter III or an exempted person under Chapter IV of this

     Part of this Act."

     Section 7: Authorisation by membership of recognised self-

     regulating organisation

     "1. Subject to subsection 2 below, a member of a recognised self-

     regulating organisation is an authorized person by virtue of his

     membership of that organisation."

     Section 9: Applications for recognition

     "1. A self-regulating organisation may apply to the Secretary of

     State for an order declaring it to be a recognised self-

     regulating organisation for the purposes of this Act."

     Section 114: Power to transfer functions to designated agency

     "1. If it appears to the Security of State -

     (a)   that a body corporate has been established which is able

           and willing to discharge all or any of the functions to

           which this section applies; and

     (b)   that the requirements of Schedule 7 to this Act are

           satisfied in the case of that body,

     he may subject to the provisions of this section and Chapiter XIV

     of this Part of this Act, make an order transferring all or any

     of those functions to that body.

     2. The body to which functions are transferred by the first order

     made under subsection 1 above shall be the body known as The

     Securities and Investments Board Limited if it appears to the

     Secretary of State that it is able and willing to discharge them,

     that the requirements mentioned in paragraph (b) of that

     subsection are satisfied in the case of that body and that he is

     not precluded from making the order by the subsequent provisions

     of this section or Chapter XIV of this Part of this Act."

     Schedule 2: Requirements for recognition  of self-regulating

     organisation

     Paragraph 1

     "1. The rules and practices of the organisation must be such as

     to secure that its members are fit and proper persons to carry

     on investment business of the kind with which the organisation

     is concerned.

     2. Where the organisation is concerned with investment business

     of different kinds its rules and practices must be such as to

     secure that a member carrying on investment business of any of

     those kinds is a fit and proper person to carry on investment

     business of that kind."

     Paragraph 2

     "The rules and practices of the organisation relating to -

     (a)   the admission and expulsion of members; and

     (b)   the discipline it exercises over its members,

     must be fair and reasonable and include adequate provision for

     appeals."

     Paragraph 13

     "1. The organisation must have rules governing the carrying on

     of investment business by its members which, together with the

     statements of principle, rules, regulations and codes of practice

     to which its members are subject under Chapter V of Part I of

     this Act, are such as to afford an adequate level of protection

     for investors."

     The Rules of IMRO provide as follows:

     6.1 Jurisdiction of the Membership Tribunal

     6.1(1) Matters coming before the Tribunal

     "A Membership Tribunal shall hear and determine:

           (a)  Admissions Appeals;

           (b)  Rules References;

           (c)  Fitness References."

     6.2 Membership of Tribunal Panel

     6.2(1) Appointment of Panel

     "For purpose of any appeal or reference set out in Rule 6.1.(1):

     (a) the Board shall appoint from time to time a Panel of not less

     than 10 individuals who shall be considered suitable and eligible

     to sit as members of a Membership Tribunal, on such terms as the

     Board sees fit; such individuals may be Members or members of the

     Board;

     (b) the Board shall appoint one member to be Chairman of the

     Panel and such other persons to be deputy chairmen of the Panel

     as it considers fit;

     (c)   any function required to be performed under these Rules by

     the Chairman may be performed by a deputy chairman if the

     Chairman is unavailable, unwilling or for any other reason unable

     to act."

     6.3 Convening of the Tribunal

     6.3(1) Selection of Tribunal

     "Where a matter is referred to a Membership Tribunal the Chairman

     of the Panel will select three, or at his election five, members

     of the Panel to sit as the Membership Tribunal to hear and

     determine the matter."

     6.3(2) Disqualification from membership of the Tribunal

     "No individual shall be selected as a member of the Membership

     Tribunal who:

     (a)   has, in the opinion of the Chairman of the Panel, any

     relevant financial interest in the matter;

     (b)   is a shareholder, Director, Officer, partner, agent,

     employee, spouse or Associate of any person (other than IMRO)

     involved in the matter, or who has in the opinion of the

     Chairman, a close connection with any such person;

     (c)   inquired, or who was a member of the Investigation

     Committee or of any other body which inquired, into the matter;

     (d)   except in the case of Admission Appeals, was present at any

     meeting of the Board or any committee thereof at the time when

     any report was presented or discussion took place as to whether

     the matter should be referred to the Membership Tribunal."

     6.3(3) Members of the Tribunal

     "The persons appointed to the Membership Tribunal shall include

     at least:

     (a)   one person from the same area of expertise as the Applicant

     or Member; and

     (b) one lay person."

     6.3(4) Appointment of Chairman of the Tribunal

     "The Chairman or a deputy chairman of the Panel shall act as the

     Chairman of the Membership Tribunal. If neither the Chairman nor

     a deputy chairman is available or willing or able to act, the

     Chairman of the Panel may appoint another person, who need not

     be a member of the Panel, to act as the Chairman."

     6.5   Witness orders

     6.5(1) Application for witness order

     "If any party wishes to compel the attendance of a Member or any

     individual as a witness before the Membership Tribunal, it may

     request the Chairman of the Membership Tribunal in writing or at

     a preliminary hearing to make a witness order requiring the

     Member or individual to appear before the Membership Tribunal to

     give evidence."

     7.1 Jurisdiction of the Appeal Tribunal

     7.1.(1) Appeals

     "The Appeal Tribunal shall hear and determine an appeal made

     under the Rules from

     ...

     (e)   the decision of the Membership Tribunal in a Fitness or

     Rules Reference (including any order as to publication or costs);

     ...

     save that IMRO shall have no right of appeal to the Appeal

     Tribunal."

     7.3 Constitution of Appeal Tribunal

     7.3.(1) Appeal Tribunal

     "The Appeal Tribunal shall consist of a President, a Deputy

     President or other person appointed under Rule 7.3(2) or

     7.4(1)(c)."

     7.3.(2) Eligibility for appointment

     "Without prejudice to its powers under Rule 7.4(1) of this

     Chapter, the Board shall appoint, on such terms as it thinks fit,

     an individual, not being a Member of IMRO (except as hereinafter

     mentioned) or a member of the Board or any Committee of the Board

     or a member of the Panel for the Membership Tribunal to be

     President of the Appeal Tribunal ("the President"), and another

     individual to be Deputy President ("the Deputy President"). Such

     persons shall be individuals who have practised as barristers or

     solicitors for more than 10 years or who hold, or who have held,

     judicial office. The President and the Deputy President shall be

     Members of IMRO solely for the purposes of any functions to be

     performed by them under the Articles."

     7.6 Particular hearings (such as that on the applicant company's

     appeal)

     7.6(5) Re-hearing on documents

     "An appeal shall be by way of re-hearing on the documents (which

     term shall include any record of evidence adduced before the

     Membership Tribunal or such other body against whose decision the

     appeal is made), except where the Appeal Tribunal gives leave

     under Rule 7.4(3) to present fresh evidence."

     7.6.(6) Measures which may be taken

     "Subject as aforesaid, the Appeal Tribunal:

     (a) may exercise any power or give any decision (including an

     order as to costs and publication) which may be or ought to have

     been exercised or given by the body against whose decision or

     action the appeal was brought (but shall not increase any penalty

     or sanction imposed or make any condition or requirement more

     onerous); and it may make such further or other order as may be

     required, or may remit the matter with such directions as it

     thinks fit for re-hearing and determination by such body;

     (b) shall not be bound to allow an appeal on the ground merely

     of misdirection or wrong evaluation of evidence, unless in the

     opinion of the Appeal Tribunal substantial injustice has been

     thereby occasioned;

     (c) may take account of evidence of facts or matters which have

     come to light or have happened since the date of the decision

     appealed against where, pursuant to leave given to call fresh

     evidence, evidence has been given about such matters."

     Judicial review

     According to the domestic courts' case-law, recognised self-

regulating organisations are amenable to judicial review (see, e.g.,

R v. Panel on Takeover and Mergers ex parte Datafin Plc [1987] QB 815).

     The European Court of Human Rights in its Bryan v. the United

Kingdom judgment of 22 November 1995 (Series A no. 335) noted the

following:

     " ...

     25. It is common ground that an appeal "on a point of law" may

     be brought on grounds identical to an application for judicial

     review. It therefore includes a review as to whether a decision

     or inference based on a finding of fact is perverse or irrational

     (R. v. Secretary of State for the Home Department, ex parte Brind

     [1991] Appeal cases 696, pp. 764 H-765 D). The High Court will

     also grant a remedy if the inspector's decision was such that

     there was no evidence to support a particular finding of fact;

     or the decision was made by reference to irrelevant factors or

     without regard to relevant factors; or made for an improper

     purpose, in a procedurally unfair manner or in a manner which

     breached any governing legislation or statutory instrument.

     However, the court of review cannot substitute its own decision

     on the merits of the case for that of the decision-making

     authority.

     ...

     44. The Court notes that the appeal to the High Court, being on

     "points of law", was not capable of embracing all aspects of the

     inspector's decision concerning the enforcement notice served on

     Mr Bryan. In particular, as is not infrequently the case in

     relation to administrative-law appeals in the Council of Europe

     member States, there was no rehearing as such of the original

     complaints submitted to the inspector; the High Court could not

     substitute its own decision on the merits for that of the

     inspector; and its jurisdiction over the facts was limited.

     However, apart from the classic grounds of unlawfulness under

     English law (going to such issues as fairness, procedural

     propriety, independence and impartiality), the inspector's

     decision could have been quashed by the High Court if had been

     made by reference to irrelevant factors or without regard to

     relevant factors; or if the evidence relied on by the inspector

     was not capable of supporting a finding of fact; or if the

     decision was based on an inference from facts which was perverse

     or irrational in the sense that no inspector properly directing

     himself would have drawn such an inference. ..."

COMPLAINTS

     The applicants submit that IMRO is an instrumentality of the

Government of the United Kingdom. They complain of a violation of

Article 6 of the Convention on the following grounds.

     First, they did not have a fair hearing insofar as there must

have been a pre-determined decision to deliver a finding of guilt.

IMRO's hasty decision to impose two intervention orders effectively

prejudged the outcome of the subsequent proceedings on the applicant

company's continued membership of that body. If the Membership Tribunal

had not found that the applicant company had breached IMRO's rules,

IMRO would have been liable to pay the applicant company substantial

damages because of the intervention orders. Moreover, the procedures

employed by IMRO before the hearing of 27 February 1995 indicated an

apparently deliberate attempt to render the applicants financially

incapable of responding to the allegations, since the applicants were

obliged to pay more than £600,000 in legal fees.

     Secondly, the applicants did not have a trial within a reasonable

time, since the hearing before the membership tribunal began

twenty one months after the imposition of the first intervention order.

The proceedings were lengthened by IMRO's denial of access to relevant

documentation, necessitating an application to the tribunal for an

order for production.

     Thirdly, the Membership Tribunal was not an independent and fair

tribunal, because it was presided over by a member of the Membership

Panel of IMRO, which was the investigating and prosecuting authority

in this case. Moreover, the tribunal was not properly constituted,

because it did not include a person from the same area of expertise as

the applicant company, as required under Rule 6 para. 3 (e) of the IMRO

disciplinary rules.

     Fourthly, since the applicant company's assets had been frozen

by IMRO, it was obliged to have its counsel submit applications to the

Enforcement Committee of IMRO for release of funds for payment of its

legal bills.

     The applicants claim that judicial review is not an effective

remedy and that provision for appeal was illusory.

     Finally, they consider that all three can claim to be victims of

a violation of their rights under the Convention, because the second

and third applicants have suffered financial losses as a result of the

decision terminating the applicant company's membership of IMRO.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 8 December 1995 and registered

on 22 March 1996.

     On 26 February 1997 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

29 May 1997, after an extension of the time-limit fixed for that

purpose.  The applicants replied on 31 July 1997, also after an

extension of the time-limit.

THE LAW

1.   The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that, in the determination of their civil rights and

obligations, they did not have a fair hearing within a reasonable time

before an independent and impartial tribunal established by law.

     Article 6 para. 1 (Art. 6-1) of the Convention, in so far as

relevant, provides as follows:

     "In the determination of his civil rights and obligations ...,

     everyone is entitled to a fair ... hearing within a reasonable

     time by an independent and impartial tribunal established by

     law."

     The respondent Government argue that the second and third

applicants cannot claim to be victims within the meaning of Article 25

(Art. 25) of the Convention because they were not parties to the

proceedings complained of. The second and third applicants argue that

they can because they are the only shareholders of the applicant

company and because of the positions they hold or held therein. They

also claim that, given the outcome of the proceedings, it would be

impossible for either of them to obtain membership of IMRO.

     The Commission does not consider it necessary to determine

whether the second and third applicants, who did not take part in the

proceedings, can, nevertheless, claim to be victims of a violation of

Article 6 para. 1 (Art. 6-1) of the Convention because the application

is, in any event, inadmissible for the reasons stated below.

2.   The Commission will first examine the applicants' complaints that

they did not have a fair hearing before an independent and impartial

tribunal established by law.

     The Government submit that domestic remedies have not been

exhausted in this respect because the applicant company did not pursue

its appeal against the intervention notices, failed to challenge the

appointments to the Membership Tribunal and did not apply for judicial

review.

     In any event, the Government argue that the complaint is

manifestly ill-founded. The intervention notices were issued in

accordance with applicable domestic law by the competent authority in

order to provide intermediate protection for the investors and allow

further inquiries to take place. All due procedures were followed.

Moreover, there is a clear distinction between the protective function

of the powers of intervention and the system of disciplinary

proceedings. The intervention notices could not have, therefore,

prejudged the decision to make a fitness reference. IMRO enjoys

statutory immunity and, as a result, would not be liable in damages for

issuing the intervention notices, unless the applicants could show that

it had acted in bad faith.

     The Government further submit that the applicant company could

have had and did have access to the frozen assets in order to cover

their defence costs. IMRO showed itself willing to grant its approval

to the relevant requests. It also had access to the disputed documents,

the disclosure of which was ordered by the Chairman of the Membership

Tribunal.

     Furthermore, the Government contend that the fact that the

members of the Membership Tribunal have to be chosen from a Panel

established for this purpose cannot compromise their independence. The

Panel is just a practical arrangement for identifying people who would

be capable of sitting on a Tribunal. The members of the Tribunal are

appointed by the Chairman of the Panel who is independent of IMRO and

there exist guarantees to ensure their impartiality. One of the

three members of the Tribunal was of the same area of expertise as the

first applicant, as the IMRO Rules required. Moreover, there was a full

rehearing before the Appeal Tribunal which afforded all necessary

guarantees. The Appeal Tribunal had jurisdiction to substitute its own

decision for that of the Membership Tribunal.

     On the whole, the Government argue that the procedural guarantees

in the present case were at least equivalent with those in Bryan v. the

United Kingdom (supra) and the High Court had jurisdiction to hear all

of the applicants' complaints.

     The applicants argue that the High Court could not review the

facts of the case and substitute its decision for that of the IMRO

Tribunals. There could have been no fair hearing before the IMRO

Tribunals, because IMRO was the investigative, prosecutory and

determinative authority. Moreover, because of the intervention orders,

they faced serious budgetary constraints in the organisation of their

defence. IMRO may not have agreed to the release of the applicants'

funds if they had not agreed to withdraw their appeal against the

intervention orders.

     The applicants also argue that they were denied access to certain

documents through the use of public interest immunity. The Chairman of

the Membership Tribunal did not appear independent of IMRO since, as

he himself stated, he had been involved in one capacity or the other

in all references so far heard in IMRO. Moreover, the Membership

Tribunal did not comprise a member of the same area of expertise as the

applicant company. Finally, contrary to the applicant company's

request, the Membership Tribunal sat with three members and not five.

     The Commission notes that the parties do not contest the

applicability of Article 6 para. 1 (Art. 6-1) in the proceedings in

question. Given that the proceedings concerned the applicant company's

ability to carry on investment business, the Commission considers that

they involved a determination of civil rights and obligations within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

     As regards the Government's argument that the applicant company

has not exhausted domestic remedies, the Commission notes that the

applicants in essence complain that they did not have access to a court

which would have had full jurisdiction to hear their case and which

would have at the same time afforded all the safeguards of Article 6

(Art. 6). It follows that the Government's arguments that the applicant

company had the right to challenge the composition of the Membership

Tribunal and that it could have obtained redress by applying for the

judicial review of the decision terminating their IMRO membership

concerns the substance of the complaint (No. 27003/95, Dec. 25.11.96,

D.R. 87-A, p. 78).

     Finally, insofar as the Government argue that the applicant

company has not exhausted domestic remedies because it did not pursue

its appeal against the intervention notices, the Commission does not

consider that this was an effective remedy against the Tribunal's

determination regarding the applicant company's fitness to carry on

investment business.

     Turning to the substance of the complaint, the Commission recalls

that, although Article 6 para. 1 (Art. 6-1) of the Convention embodies

the right to a court, it does not oblige the Contracting States to

submit disputes over civil rights and obligations to a procedure

conducted at each of its stages before tribunals meeting this

provision's various requirements (Eur. Court HR, Le Compte, Van Leuven

and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p.

23, para. 51). Where professional bodies intervene at the earlier

stages of the proceedings the Convention calls at least for one of the

two following systems: either the professional bodies themselves comply

with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention, or they are subject to subsequent control by a judicial

body that has full jurisdiction and does provide the guarantees of

Article 6 para. 1 (Art. 6-1) Eur. Court HR, Albert and Le Compte v.

Belgium judgment of 10 February 1983, Series A no. 58, p. 16, para.

29). In cases involving applications for judicial review under English

law, the sufficiency of the review exercised by the High Court must be

assessed having regard to matters such as the subject-matter of the

decision appealed against, the manner in which that decision was

arrived at, and the content of the dispute, including the desired and

actual grounds of appeal (see the above-mentioned Bryan v. the United

Kingdom judgment, p. 17, para. 42).

     Applying this test, the Commission must first examine whether the

professional bodies of IMRO which examined the applicant company's

case, i.e. the Membership and the Appeal Tribunals, complied with the

requirements of Article 6 para. 1 (Art. 6-1) of the Convention. In this

connection the Commission considers, on the one hand, that a question

could arise as to whether these tribunals were "established by law",

as required by Article 6 para. 1 (Art. 6-1), IMRO being a self-

regulatory body whose Rules have no direct statutory basis.

     On the other hand, the Commission considers that no complaint

could arise as to these tribunals' independence and impartiality. Thus,

the Membership Tribunal was presided over by a senior barrister working

in independent practice. Although the applicants now appear to claim

that he had close links with IMRO, at the time they failed to challenge

him, although they were clearly given that possibility. Neither did the

applicants challenge the appointment of the member who had to be of the

same area of expertise as the applicant company. In any event, the

Membership Tribunal was subject to the control of the Appeal Tribunal,

which had full jurisdiction and which was presided over by a former

Court of Appeal judge about the independence and impartiality of whom

the applicant do not complain. The fact that the Membership Tribunal

was composed of three, as opposed to five members, was not in any

manner irregular.

     Moreover, the applicants were heard by both the Membership and

the Appeal Tribunal and were legally represented before these bodies.

The Commission considers that the applicants have failed to

substantiate their claim that IMRO's allegedly hasty decision to impose

two intervention orders effectively prejudged the outcome of the

subsequent proceedings. Neither have they substantiated their

allegation that the freezing of the applicant company assets limited

their capacity to organise their defence. The Commission considers in

this connection that the fact that the applicant company had to submit

applications to the Enforcement Committee of IMRO for release of funds

for payment of its legal bills does not disclose an appearance of a

violation of Article 6 para. 1 (Art. 6-1), especially since the

Committee appeared willing to grant such applications.

      Thus, the Commission considers that before the professional

bodies of IMRO the applicant company had had the benefit of a procedure

which afforded many of the safeguards required by Article 6 para. 1

(Art. 6-1) of the Convention.

     As regards the subject-matter and content of the dispute, the

Commission considers that it is in the nature of a self-regulating

profession that questions concerning the internal discipline, including

fitness to practise, should be determined in the first instance by the

profession itself, even where the Convention requires subsequent

judicial control because the determination of civil rights may also be

at stake (No. 31503/96, Dec. 9.12.97, unpublished).

     Moreover, the applicant company could have applied for the

judicial review of the findings of the Appeal Tribunal by the High

Court. Although the applicants argue that the High Court could not

review the facts of the case and substitute its decision for that of

the IMRO Tribunals, the Commission notes that the scope of review which

would have been exercised by the High Court in the circumstances of the

case would not have been more restrictive than the one exercised by the

same body in Bryan v. the United Kingdom where the Court did not find

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

     In particular, the applicants have not argued that the failure

of IMRO to disclose certain documents could not have been the subject

of judicial review or would have limited the scope of the High Court's

review in any manner. Furthermore, as in Bryan, the subject-matter of

the decision of the Appeal Tribunal - fitness to engage in business as

a member of one of the self-regulatory bodies envisaged under the

Financial Services Act 1986 - was governed by specialised rules which

could reasonably justify some limits on judicial review of the

establishment of facts by the tribunal of IMRO.

     In the light of all the above, the Commission considers that the

scope of review which the High Court would have exercised, if the

applicant company had applied for judicial review, would have been

sufficient to ensure compliance with Article 6 para. 1 (Art. 6-1) of

the Convention. It follows that no appearance of a violation of this

provision is disclosed. The Commission, therefore, considers that this

part of the application must be rejected as manifestly ill-founded, in

accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

3.   It remains for the Commission to examine the applicants'

complaint under Article 6 para. 1 (Art. 6-1) of the Convention about

the length of the proceedings.

     The Government submit in this connection that the applicant

company has not exhausted domestic remedies. According to the

Government, undue delay is a matter that is within the jurisdiction of

the High Court on an application for judicial review if the delay

constitutes a serious departure from the relevant disciplinary

procedure or amounts to an abuse of process. In the alternative, they

argue that the complaint is manifestly ill-founded.

     The applicants disagree.

     The Commission does not consider it necessary to examine whether

the applicant company has exhausted domestic remedies. The Commission

notes that the proceedings complained of began on 1 July 1993 and ended

on 12 June 1995, i.e. they lasted less than two years. The case, which

was of some complexity, was examined by an investigation committee and

two tribunals. Moreover, it took the applicant company more than

seven months, i.e. between 31 March 1994 and 19 October 1994, to submit

its formal reply to the decision of the Investigations Committee to

make the fitness reference.

     In these circumstances, the Commission considers that the

proceedings were not unreasonable in length. It follows that no

appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention is disclosed. This part of the application must be,

therefore, rejected as manifestly ill-founded, in accordance with

Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

     M.F. BUQUICCHIO                           M.P. PELLONPÄÄ

        Secretary                                President

   to the First Chamber                     of the First Chamber

 

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