AS TO THE ADMISSIBILITY OF
Application No. 26267/95
by David BUDD
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 9 January 1995 by
David BUDD against the United Kingdom and registered on 24 January 1995
under file No. 26267/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the applicant may be
summarised as follows.
The applicant is a United Kingdom national born in 1958 and
residing in Colchester, Essex.
On 31 March 1994 the applicant received a notice of abatement of
nuisance requiring that no barking emanate from his garden where he
kept three greyhound dogs.
Considering that no nuisance was caused by the dogs or, in any
event, that the prohibition was too wide sweeping, in July 1994 the
applicant submitted to the Magistrates' Court a petition for legal aid
to appeal against the abatement notice.
On 2 August 1994 the Court sent a letter to the applicant stating
that the proceedings were not criminal within the meaning of the Legal
Aid Act 1988. Thereupon the applicant petitioned the competent legal
aid board for civil legal aid to pursue the appeal. This was
subsequently refused as the proceedings for which legal aid was sought
were "not included in Part I of Schedule 2 to the Legal Aid Act 1988."
The applicant's ensuing appeal against the refusal was dismissed on
22 November 1994.
COMPLAINTS
The applicant complains under Article 6 of the Convention of the
refusal of legal aid.
He submits that an abatement notice together with the appeal
procedure amounted to a criminal charge because failure to comply with
the notice would trigger enforcement proceedings under Section 8 of the
Environmental Protection Act 1990, which were of a criminal nature.
Also, the penalty for non-compliance was a fine, and in case of its
non-payment, imprisonment. Therefore para. 3(c) of Article 6 of the
Convention was applicable in the present case.
Furthermore, even if the proceedings at issue are to be
considered as civil, the applicant contends that there had been a
violation of the principle of equality of arms as implicit in Article
6 para. 1 of the Convention. Thus an abatement notice seriously
affected the individual by transforming what had previously been a
legal activity into an illegal one. Since the respondent in appeal
proceedings against such an abatement notice was always a state
authority, it was contrary to the principle of equality of arms that
legal aid should never be available therefor.
THE LAW
1. The applicant complains that the refusal of legal aid for an
appeal against a notice of abatement of nuisance was in breach of his
right to free legal assistance under Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention and that it amounted to a violation of
the principle of equality of arms, implicit in Article 6 para. 1
(Art. 6-1) 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 ...
...
(3) Everyone charged with a criminal offence has the
following minimum rights:
...
c. ... if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require."
The Commission notes that in the present case by virtue of a
notice of abatement of nuisance the applicant was required to ensure
that no barking emanate from his garden. The Commission finds that the
proceedings for which legal aid was refused, namely an appeal against
the abatement notice, did not concern the determination of a criminal
charge against the applicant, the link with hypothetical criminal
proceedings being too remote.
It follows that Article 6 para. 3 (c) (Art. 6-3-c) was not
applicable in the present case.
The Commission has therefore examined the applicant's complaint
under Article 6 para. 1 (Art. 6-1) of the Convention, which enshrines
inter alia the right of access to court. The Commission recalls in
this respect the Convention organs' case law according to which in
certain circumstances the refusal of legal aid in proceedings involving
the determination of civil rights and obligations may amount to a
denial of access to court (cf. Eur. Court H.R., Airey judgment of 9
October 1979, Series A no. 32. p.14, para. 26; and No. 11564/85, Dec.
4.12.85, D.R. 45, p. 291).
The Commission is not required to decide whether proceedings by
way of appeal against the abatement notice would have involved a
determination of the applicant's civil rights or obligations in the
present case, since the complaint is in any event inadmissible for the
following reasons.
The Commission notes that the applicant sought legal aid to
appeal before a Magistrates' Court against an abatement notice on the
grounds that no nuisance had occurred, and that, in any event, the
prohibition imposed on him had been too wide sweeping. In view of the
lack of legal complexity of these issues and of the proceedings for
which legal aid was requested, the Commission finds that the refusal
of legal aid to the applicant, who could present his case in person,
did not amount to a denial of access to court contrary to Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. As regards the complaint that there had been a violation of the
principle of equality of arms, the Commission recalls the Court's case-
law according to which the Convention organs' task when examining an
application under Article 6 (Art. 6) of the Convention is to ascertain
whether the proceedings, considered as a whole, were fair (Eur. Court
H.R., Windisch judgment of 27 September 1990, Series A no. 186 p. 10,
para. 25). One feature of the concept of a fair trial is the principle
of equality of arms (see, among other authorities, Eur. Court H.R.,
Borgers judgment of 23 January 1991, Series A no. 214B, p. 31 para. 24;
and Dombo Beheer judgment of 27 October 1993, Series A, no. 274, p. 19
paras. 32, 33).
However, in the present case the applicant when complaining of
an alleged breach of the principle of equality of arms refers to appeal
proceedings which, as it would appear from his submissions, he never
pursued. The Commission finds, therefore, that the applicant may not
claim to be a victim of a violation of his right to a fair trial as
enshrined in Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the remainder of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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