CARESANA v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31541/96
by Carlo CARESANA
against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 29 August 2000 as a Chamber composed of

MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrP. Kūris,
MrsF. Tulkens,
MrK. Jungwiert,
SirNicolas Bratza,
MrK. Traja, judges,
andMrsS. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 24 July 1995 and registered on 20 May 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is an Italian citizen, born in 1938. He is currently detained in Sainte-Geneviève-des-Bois (France) with a view to his extradition to Italy. He is represented before the Court by Mr Luc-Philippe Febbraro, a lawyer practising in Aix-en-Provence.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 2 July 1993 the applicant was arrested at Budapest airport under a warrant for his arrest, dated 12 December 1992, on charges of inter alia obtaining property by deception. The arrest warrant had been issued by Interpol at the request of the West Yorkshire Police Fraud Squad.

On 20 October 1993 the applicant was extradited to the United Kingdom and was remanded in custody in Armley Prison, Leeds.

The criminal charges brought against the applicant concerned events which occurred at the end of May 1990 resulting in a loss of 1,770,994.84 US dollars to the National Westminster Bank at Leeds. The applicant, who was highly experienced in shipping, banking and international trade, was suspected of having purported, with the assistance of others, to be able to supply a large confinement of sugar to a Saudi Company. There was no sugar, but the applicant by selecting a vessel about to sail from Brazil to Alexandria with a cargo of sugar and, with reference to that vessel and its cargo, forged the documentation which the National Westminster Bank required to support the letter of credit before it would advance the money. Because the bank’s payment was made before the due date, it was made before the absence of a sugar cargo could become apparent.

In 1991, a Greek national, Mr P., who according to the prosecution was the applicant's agent, pleaded guilty to obtaining from the National Westminster Bank a bill of exchange by deception, and to procuring the execution of a valuable security by deception. He received a four-year prison sentence.

Soon after his arrival in the United Kingdom the applicant engaged and personally paid for the services of a large firm of primarily commercial law solicitors. He secured the payment of GBP 105,114.11 into the solicitors’ client account between 26 October 1993 and 14 April 1994. Approximately GBP 56,000 of this amount went on fees before the middle of April 1994. A guarantor, Ms D., had also pledged the sum of GBP 50,000. Ms D. subsequently agreed to increase the amount pledged to GBP 100,000 and gave security for her guarantee in the form of a mortgage on a residence in Genoa, Italy, where she lived together with the applicant. The applicant had provided the money for Ms D. to purchase the property from her former husband. The value of the property was estimated to be GBP 500,000. It was not subject to a mortgage.

On 14 April 1994 the applicant signed an application form for legal aid to cover the costs of his defence. The form submitted by the applicant contained no information as to income or assets. According to the applicant he could not realise any of his assets while in detention. Since the application form was incomplete the applicant’s legal aid request could only be considered by Leeds Crown Court on 22 April 1994, the day on which the trial was due to commence. The applicant’s solicitor helped him to prepare a detailed Statement of Assets and Liabilities for submission to the Crown Court.

Meanwhile, on 21 April 1994 the applicant's Queen’s Counsel (“QC”) informed the trial judge, Judge Hoffman, at a hearing in chambers in the presence of prosecution counsel, that a successful application for legal aid would necessarily be fraudulent. The applicant’s counsel stated before the court:

“I do not think in all conscience a legal aid application can be filled in with sufficient openness to satisfy the court. It certainly could not satisfy me and, if it were to be filled in and signed as a result of my enquiries, I would feel so squalidly unhappy as to be positively professionally embarrassed and have to say to the court that I would be disinclined to act on that legal aid basis.”

The applicant’s junior counsel agreed with this view.

Counsel for the prosecution observed at the hearing that the applicant needed to be formally asked about his intentions concerning his legal representation, because once his defence counsel had withdrawn, he would be entitled to have alternative counsel. Counsel for the prosecution further observed that it would be helpful if the court record mentioned the applicant’s views about this since he would not like it to be said later that the applicant misunderstood the situation and felt that he was obliged to go on and defend himself and had therefore been put at a grave disadvantage when other possible options were open to him.

The Statement of Assets and Liabilities finally submitted to the Crown Court disclosed that the applicant had the following assets:

- The applicant was the owner of a shoe factory in Italy which, according to him, was no longer profitable.

- The applicant had opened a bank account in Hungary into which he had paid approximately 100,000 US dollars, the purpose of which was to invest in a shoe factory there. However, following his arrest in Hungary, the money was not returned to him. He had instructed his lawyers in Hungary to try to recover this money on his behalf.

- The applicant had an interest in three football teams in Italy. He had received an offer for one of the teams of some GBP 200,000. He was reimbursed 30,000,000 Italian lire (ITL) in December 1993, after having made a deposit of ITL 300,000,000 for a second football team, and he did not make any money from the third football team.

- The applicant owned a Mercedes Spider which, according to his estimation, was worth GBP 15,000.

- The applicant’s Rolex watch originally worth about GBP 3,000 had been damaged and was therefore worthless. His Cartier watch was worth about GBP 3,500. All of this jewellery was in Italy.

- A house in which the applicant lived in Genoa, Italy, and which was worth about GBP 500,000 was owned by Ms D., the woman with whom he lived and the above-mentioned guarantor. The applicant had personally paid approximately ITL 100,000,000 for the house some ten years ago.

- A large flat in the most expensive area of Genoa, where the applicant’s ex-wife and daughter lived, was worth about GBP 700,000. It was owned by a company. His daughter was the holder of the shares and Ms D. was the manager of the company. The applicant was unable to remove the bank charges on this property.

- The applicant had bought a country property worth approximately GBP 250,000. There was a mortgage on this property of approximately one third of its value. The property was registered in the name of Ms D.’s parents.

- In 1993 the applicant made an investment in 1993 of 500,000 US dollars in a warehouse in Bulgaria. Because he was detained it had not been possible to arrange for any reimbursements.

- The applicant’s only income was the money he received from his activity as a consultant and amounted officially to 150,000 US dollars per year; unofficially it was about half as much.

- The total cost of university fees which he had to pay was approximately GBP 30,000 per year. Maintenance to his ex-wife was about GBP 1,500 per month.

- Since his arrest the applicant had no income at all and large sums of arrears had built up. In the period from 20 October 1993 to 6 April 1994, Ms. D. and his business associates had paid a total of GBP 105,000 to his English solicitor.

The Government drew attention to the fact that the Statement of Assets and Liabilities made no mention of the sum of GBP 40,000 which remained in the applicant’s solicitor’s client account. Nor was any reference made to the Ms D.’s guarantee to provide GBP 50,000 towards the cost of the applicant’s defence. The Government further stated that the Statement of Assets and Liabilities made mention of the applicant having in 1995 (date incorrectly stated by the Government, the correct year being 1985) at least 100 million US dollars in bank accounts outside Italy. The applicant replied that there is no evidence whatsoever of his having any such accounts at the time referred to by the Government.

The applicant claimed that by 1994 what was left of his property was no longer at his disposal.

In a letter accompanying the submission to the Crown Court, dated 22 April 1994, the applicant’s solicitors stated, inter alia:

“… We understand that if a defendant is assessed to have more than £3000 worth of capital that a court will order that he pay a contribution to any legal aid; it would appear on the details that Mr Caresana supplied to us yesterday that he has more than £3000 in capital in Italy.

We are unable to verify any of the valuations given by Mr Caresana but would stress that Ms D. does not share the optimistic view of Mr Caresana as to the assets’ worth.

In the circumstances, it appears to us that if any legal aid certificate were granted by the court, due to the serious and complex nature of the case, it would involve a substantial contribution being ordered. From our own experience of the case, we are of the opinion that whilst Mr Caresana remains in custody at Armley Prison he would not be able to satisfy any such condition.

It is regrettable that in the circumstances my firm is not prepared to represent Mr Caresana without private funding. Counsel cannot represent Mr Caresana unless their fees are met. It would appear that he is unlikely to obtain a legal aid certificate and therefore in the circumstances the only way forward would appear to be for Mr Caresana to represent himself.

… Mr Caresana knows the case very well. He is an intelligent individual and whilst he has no knowledge of English legal procedure, he has an in-depth knowledge of the facts of the case. Given all assistance by the court, he should be able to conduct his own Defence.”

At the hearing on the legal aid application before Judge Hoffman in chambers on 22 April 1994, the applicant’s solicitor described the difficulties which the applicant was experiencing in procuring funding for his defence either through the sale of his own assets or other means. The solicitor informed Judge Hoffman that an unsuccessful attempt had been made to sell Ms D.’s flat in Genoa, Italy. As to the possible sale of one of the applicant’s football clubs, the solicitor observed that the applicant was concerned as to whether the offer he received of GBP 200,000 was genuine and that in any event the club was saddled with debts in excess of that sum. Judge Hoffman referred the applicant’s solicitor to Regulation 26 of the Legal Aid in Criminal and Care Proceedings 1989 according to which representation shall not be granted to a person for any purpose unless it appears that his financial resources are such that he requires assistance in meeting the costs of the defence. Judge Hoffman asked the solicitor:

“... would you contend that [the applicant’s] financial resources are such that he requires assistance in meeting the costs of his defence; or would you recognise that really is straining to the limit the words of the regulation?”

The applicant’s solicitor replied:

“I would say we would be straining the regulation. I have no doubt about that ... ”

In deciding to reject the applicant’s request for legal aid, Judge Hoffman pointed out that he was very reluctant to embark upon a trial involving an unrepresented defendant and was “positively straining to find a way to grant [the applicant] legal aid”. However, in his opinion the applicant’s Statement of Assets and Liabilities showed that he had substantial assets upon which he could call if necessary. In the judge’s opinion, the applicant’s solicitor was unable to provide any satisfactory answers about the applicant’s assets and even the solicitor seemed to acknowledge that it was unlikely that legal aid would be granted.

Immediately before the trial opened Judge Hoffman, in the absence of the jury, informed the applicant that if he needed his assistance in any way he should ask for it and that if he wanted to raise any points in the absence of the jury this facility could be granted to him.

Between 22 April 1994 and 4 August 1994 the applicant stood trial at Leeds Crown Court. The applicant represented himself. During the trial 850 documents were submitted to the court and 25 witnesses heard. The transcript of the summing up, which was spread over eight working days, runs to approximately 800 pages.

On 4 August 1994 the jury found the applicant guilty of all the charges, namely theft, obtaining property by deception, procuring execution of a valuable security by deception and using a false instrument with intent. The judge sentenced him to a total of nine-years’ imprisonment.

The applicant appealed against his conviction and sentence to the Court of Appeal.

In a letter dated 9 September 1994, the applicant’s new solicitors, Messrs Harrison Bundey & Co., asked for legal aid in connection with the appeal.

By letter dated 22 September 1994 a case lawyer in the Criminal Appeal Office forwarded a Statement of Means for completion by the applicant.

On 14 October 1994 the Statement of Means was returned, signed and filled in by the applicant together with a handwritten memorandum which he had dictated to his solicitor. The applicant declared in the Statement of Means that he had no savings or articles of value. In the accompanying memorandum it was stated that Ms D. had no assets apart from her home and that the applicant’s Mercedes car could not be sold because the ownership documents were held by the Hungarian authorities.

In taking its decision on legal aid, the Criminal Appeal Office relied only on the documentation submitted by Messrs Harrison Bundey & Co. The latter confirmed that they did not have sight of the applicant’s earlier Statement of Assets and Liabilities; nor did they provide the Court of Appeal with the transcript of the hearing in Chambers on 22 April 1994 before Judge Hoffman. The Government are unable to confirm whether the transcript and the applicant’s Statement of Assets and Liabilities came into the possession of the Criminal Appeal Office before or after the decision to grant the applicant legal aid. The applicant maintains that the Court of Appeal was fully aware that that he had been refused legal aid for the purposes of his trial. He observes that the officials in the Court of Appeal had full access to his case file including his Statement of Assets and Liabilities.

On 9 November 1994, and on the sole basis of the applicant’s new Statement of Means and the accompanying handwritten declaration, the Criminal Appeal Office granted the applicant legal aid for a conference with counsel and for the perfection of his grounds of appeal. Legal aid was later granted for the preparation and presentation of an application for leave to appeal and for the full hearing of the appeal once leave had been granted.

The applicant produced extensive grounds of appeal (130 hand-written pages). With the assistance of his defence counsel the applicant's grounds of appeal were amended and reduced to seventeen grounds of appeal. The applicant alleged in particular that he was put at an unfair disadvantage in conducting his defence because his mother tongue was Italian. He also complained that he had no legal representation at his trial and that the trial judge refused to adjourn the trial to enable the key defence witness D. to give evidence. In the applicant’s submission, this witness, a German lawyer who speaks Italian, would have been able to prove that two witnesses had not told the truth at his trial.

The hearing before the Court of Appeal took place on 9 and 10 November 1995. The applicant was represented by counsel. On 7 December 1995 the Court of Appeal allowed his appeal against his conviction on the charge of theft but upheld the other convictions and the sentences imposed.

The Court of Appeal found that there was no substance whatsoever in the applicant's allegation that he was put at an unfair disadvantage because the trial was conducted in English. In particular, the cross-examination of a witness showed the applicant to be not only astute but also at ease in the language which he was using to formulate the questions. Furthermore, he had the services of an interpreter whom he chose not to use. The applicant’s arguments had been set out in detail and developed at considerable length in oral submissions before the Crown Court. The jury had been told more than once to make every allowance for the applicant’s lack of legal representation as well as for the fact that English was not his native language.

As to the absence of legal representation and the refusal of legal aid, the Court of Appeal observed, inter alia:

“… prosecution counsel and the trial judge took elaborate steps to assist the [applicant] to present his case. He was given advanced warning of when witnesses were to be called and procedural matters were carefully explained to him, such as the effect of formal admissions of fact, the effect of evidence being read, the need to put his case in cross-examination, and so forth. Each day the court sat at 10 am to deal with any problem which the applicant might be experiencing before the trial continued. In addition the applicant was allowed time as and when he required it. …

Originally the [applicant] had legal representation for which he paid. As the trial was about to start it became clear to the representatives that no more payment would be forthcoming. It is quite clear from the transcripts we have seen that if the [applicant’s] legal representatives had been satisfied that the [applicant] could not pay they would have supported an application for Legal Aid, but they were not so satisfied and that is what they told the judge. The [applicant] had in fact signed an application form for Legal Aid on 14 April 1994, but it contained no information as to income or assets, and boldly asserted that the Appellant could not realise any assets because he was in custody in Leeds. On 20 April 1994 his solicitor assisted him to prepare a statement of assets and liabilities, and that document we have seen. Having seen it we can understand why the [applicant’s] lawyers felt unable to support an application for Legal Aid. In those circumstances it seems to us that the trial judge had really no alternative but to proceed as he did. In general, Legal Aid cannot be granted to anybody unless it appears to the body entitled to grant it that the financial resources of the applicant are such to make him eligible for it (see section 21 (5) of the Legal Aid Act 1988). As was pointed out during the course of argument, were it otherwise a defendant of ample means facing serious charges could abuse the system with impunity. He could simply decline to pay for representation and fail to provide adequate information as to his resources confident in the knowledge that in order to facilitate the trial process Legal Aid would be granted to him … .”

As regards the witness D. whom the applicant wanted to call, the Court of Appeal pointed out that the day proposed, namely 8 July 1994, was not the only date on which this witness could have given evidence. Subsequent enquiries revealed that in reality D. was simply not prepared to attend. The suggestion that the court was not prepared to wait for him was unfounded. According to the Court of Appeal, the evidence called on behalf of the applicant did not finish until 19 July 1994, and the court in fact adjourned for a week in order to enable the applicant’s final defence witness to attend.

On 23 August 1996 the applicant was transferred from Wakefield Prison to Italy in accordance with the Convention on the Transfer of Sentenced Persons of 21 March 1983. He served his sentence first in Massa, then in Prato. He was released from prison on 5 August 1998.

On 11 December 1998 the applicant was arrested in Nice (France) and remanded in custody in Ste-Geneviève-des-Bois with a view to his extradition to Italy following his final conviction and sentence in bankruptcy proceedings in Italy.

COMPLAINTS

1.The applicant, who asserts his innocence, complains, under Article 6 § 1 of the Convention, of his conviction and sentence and of the proceedings concerned. He maintains that he was put at an unfair disadvantage in conducting his defence. He stresses that his mother tongue is Italian, that he has never been in the United Kingdom and that he had no experience whatsoever of the British judicial system.

2.The applicant complains in particular that he was refused free legal aid in breach of Article 6 § 3 (c) of the Convention.

3.Invoking Article 6 § 3 (b) of the Convention, the applicant complains that he did not have adequate time and facilities for the preparation of his defence as a consequence of not being represented and having been in custody during trial.

The applicant further complains that he was not given the transcript of the hearing for an adequate preparation of his defence because he was not able to pay £100, the cost of a daily copy.

4.Invoking Article 6 § 3 (d) of the Convention, the applicant complains that the trial judge refused to adjourn the trial to enable the key witness D. to give evidence. The applicant also complains of the difference of treatment between witnesses for the prosecution and witnesses for the defence. The former were paid their travel and other expenses, whereas the latter had to pay their own costs.

THE LAW

1.The applicant complains of his conviction and sentence and of the unfairness of the criminal proceedings brought against him. He relies on Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention, which, insofar as relevant, read as follows:

“1.In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal ...

3.Everyone charged with a criminal offence has the following minimum rights: ...

b.to have adequate time and facilities for the preparation of his defence;

c.to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d.to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... .”

The Court recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial in criminal proceedings guaranteed by paragraph 1 of the same Article. The Court considers it appropriate to examine the applicant’s complaints from the perspective of (b), (c) and (d) of the third paragraph and paragraph 1 taken together (see, among many other authorities, the Granger v. the United Kingdom judgment of 28 March 1990, Series A no. 174, p. 17, § 43).

The Court observes that in adopting this approach it will have regard to whether the proceedings as a whole were fair within the meaning of the Convention (see, for example, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A, no. 277-B, § 34), bearing in mind the impact on the overall fairness of the proceedings of the applicant’s allegations taken either individually or cumulatively.

The Court further observes that the essence of the applicant’s complaint about the alleged unfairness of his trial stems from his grievance in respect of the refusal to grant him legal aid. That refusal left him without any legal representation and, in his submission, he was put at a severe disadvantage throughout the proceedings from the standpoint of his capacity to reply to the prosecution’s arguments, marshal evidence in his favour and present a persuasive case for his innocence. In view of the fact that all the applicant’s grievances are interwoven to that extent, the Court finds it appropriate to examine firstly the totality of the applicant’s pleadings on the issue of fairness and the Government’s response to them and, in a second stage, to consider its own response to the applicant’s complaints.

The applicant’s submissions

According to the applicant, the judge and the jurors sitting in his case were not able to understand the highly technical financial matters at issue involving five banks in three different countries. He was denied in particular the opportunity to expose in detail two different techniques concerning banking transactions by letters of credit. The Crown Court should have been assisted by a banking expert, being the only person entitled to confirm or not the correctness of the banking procedure. According to the applicant, the Crown Court did not understand that the banking procedure on which he relied for the purposes of the impugned transaction would not have permitted the fraud. Moreover, the Court of Appeal had not replied to all the arguments submitted in his appeal.

The applicant complains in particular that he was refused free legal aid in breach of Article 6 § 3 (c) of the Convention. He submits that he was informed of the refusal of legal aid just as the trial was about to commence. No reasons were given for that decision. Unexpectedly, and for the first time, he found himself without legal representation. He had no alternative but to represent himself at the trial of a serious and complex fraud case. The applicant maintains that he no longer had the means to pay a lawyer after having paid GBP 120,000 for his defence up to the beginning of the trial. He submits that a lawyer should have been appointed to represent him at the trial before Leeds Crown Court.

The applicant asserts that the Government have not submitted any new elements to refute his arguments about his entitlement to free legal assistance. He stresses that he was facing serious criminal charges and risked receiving a ten-year prison sentence. He pleaded not guilty to the charges. The complexity of the legal issues raised by the charges made it imperative that he be legally represented, all the more so since he had limited knowledge of the English language. The applicant considers it significant that the theft charge was quashed on appeal when he was legally represented. Had he had the services of counsel at his trial the evidence of Mr P. - the only prosecution witness against him - could have been discredited. In the applicant’s submission, by refusing him legal aid the Crown Court had completely disregarded the correct interpretation to be given to the expression “the interests of justice” contained in Article 6 § 3 (c) of the Convention.

The applicant insists that the only assets which were in reality available to him at the time of his first application for legal aid were the flat where he lived with Ms D., his Mercedes car and his two watches, the latter having an estimated value of GBP 6,000. However, the Legal Aid Regulations specified that an applicant was not required to mention in his declaration the value of his house, furniture or car. Notwithstanding that it was not necessary to declare the value of his flat and car, he felt that it was duty to make a full disclosure to the court of his assets in his Statement of Assets and Liabilities. Furthermore, the property in Genoa did not belong to him but to Ms D. While accepting that Ms D. was willing to mortgage the flat to pay for his defence costs, the applicant stressed that this transaction could not be effected immediately in response to his QC’s request for a cash payment of GBP 200,000.

The applicant criticises the decision of the trial judge to begin the trial without giving him notice, with the result that he found himself having to defend himself. In his submission, the judge was aware that efforts were being made before the beginning of the trial to sell possible assets in order to pay the fees of his defence counsel. Furthermore, the judge was equally aware that counsel for the prosecution had drawn attention to the applicant’s right to be defended by another lawyer in the event of the withdrawal of his defence counsel. However, the judge did not question him about his Statement of Assets and Liabilities nor suggest any solution to his problem of lack of representation.

In the applicant’s further submission the refusal of the trial court to grant him legal aid meant that that he was put at an unfair disadvantage in conducting his defence. He stresses that his mother tongue is Italian, that he has never lived in the United Kingdom and had no experience whatsoever of the British judicial system. With reference to Article 6 § 3 (b) of the Convention, the applicant complains that he did not have adequate time and facilities for the preparation of his defence as a consequence of not being represented and having been in custody during trial. He was woken each morning at 6 a.m. After breakfast he was handcuffed and taken to court arriving at 9 a.m. There was no opportunity during these early hours to prepare for the day's proceedings. The court sat at 10 a.m. and occasionally at 10.30 a.m. The court adjourned between 1 p.m. and 2 p.m., during which time he was given his lunch (a sandwich, an apple and a cup of tea). During this short period he had the opportunity to prepare his case. In the afternoon the court sat until 4.15 to 4.40 p.m. Thereafter he was returned to his cell, leaving a little time, whilst waiting for the bus, to continue preparation of the case. At 6 p.m. he arrived back at the prison. Thereafter he had to wait each day for a period in excess of an hour and sometimes for as long as two hours and fifteen minutes before being returned to his cell. Following his return to the cell he was able to prepare his work for the next day. For 15 weeks he had only four hours sleep per night and became so exhausted that he had to see the prison doctor.

In addition the applicant maintains that he was not given the transcript of the hearing for an adequate preparation of his defence because he was not able to pay GBP 100, the cost of a daily copy.

With reference to Article 6 § 3 (d) of the Convention, the applicant complains that the trial judge refused to adjourn the trial to enable the key witness D. to give evidence. This witness informed the court that he could not be present at 10.30 a.m. at the hearing on 8 July 1994 following a telephone call made to him in the afternoon of 7 July 1994 in Frankfurt. The applicant submits that the court did not propose another date for this witness to attend.

The applicant also complains of the difference of treatment between witnesses for the prosecution and witnesses for the defence. The former were paid their travel and other expenses, whereas the latter had to pay their own costs.

The Government’s submissions

In the Government’ submission, the applicant did not lack sufficient means at the time of his trial and the evidence presented by him did not persuade either the trial judge or his legal representatives of the applicant’s financial need. The Government further state that, having regard to the assessment made by the Crown Court on the basis of the information supplied by the applicant, it would be inappropriate for the Court to embark on an investigation into his financial circumstances back in 1994. In the Government’s view, it is significant that there would appear to be no reported cases under the Convention where the Commission or Court ventured to disagree with the national court’s determination of an applicant’s means.

The Government dispute the applicant’s assertion that he was unable to realise any capital assets while in detention. In their view, there were plainly assets which either he or Ms D. could reasonably be expected to have realised, for example the sale of one or more of the residences which the applicant had bought and had registered in the names of others, or the sale of the football team in respect of which he had received an offer of GBP 200,000.

The Government aver that the fact that the applicant was granted legal aid by the Court of Appeal should not weigh in his favour since his new solicitors unwittingly submitted incomplete and misleading information about the extent of the applicant’s assets. The applicant had not drawn their attention to inter alia the original Statement of Assets and Liabilities. In the Government’s view, the applicant had acted in a dishonest and fraudulent manner in his efforts to conceal from both the Crown Court and the Court of Appeal material information and the decision of the Court of Appeal to grant the applicant legal aid should not be seen as being in contradiction to the negative decision of Judge Hoffman.

The Government submit that the applicant was in no way disadvantaged by having to defend himself. They highlight that the trial judge, Judge Hoffman, recalls that the applicant, “a talented and remarkable man”, was fluent in English, benefited from the services of an interpreter throughout the trial, had an exceptional grasp of the details of the case and was afforded every assistance by prosecution counsel.

In the Government’s view the majority of the substantial preparatory work was undertaken before the trial by professional lawyers. By the time of the trial the applicant had an intricate knowledge of the details of the case against him. Furthermore, the prosecution displayed tolerance in dealing with an unrepresented defendant. Elaborate steps were taken both by the trial judge and the prosecution to facilitate the applicant’s preparation and presentation of the case. For example, additional time was afforded to him at the start of each day if such was needed. The Government further observe that the applicant engaged another firm of solicitors during his trial to assist with the introduction of fingerprint evidence. The same firm of solicitors assisted the applicant with his appeal to the Court of Appeal, including his application for legal aid.

Finally, the Government draw attention to the fact that the Court of Appeal addressed fully the applicant’s complaint and had the benefit of the transcripts of the trial. It concluded that it was difficult to see how the applicant could have been treated more fairly in the circumstances.

The Court’s response

(a)As to the applicant’s complaint under Article 6 § 1 taken in conjunction with Article 6 § 3 (c): denial of free legal assistance

The Court observes at the outset that in the Convention system the right of a person charged with a criminal offence to free legal assistance is one element, amongst others, of the concept of a fair trial in criminal proceedings (see, inter alia, the Pham Hoang v. France judgment of 25 September 1992, Series A no. 243, p. 23, § 39, and the Twalib v. Greece judgment of 9 June 1998, Reports of Judgments and Decisions 1988-IV, pp. 1427-1428, § 46). Sub-paragraph (c) of Article 6 § 3 attaches two conditions to this right: that the individual does not have sufficient means to pay for legal assistance and that the interests of justice require it.

As to the former condition, it is recalled that the Court has considered it admissible, under the Convention, that the burden of proving a lack of sufficient means should be borne by the person who pleads it (see the Croissant v. Germany judgment of 25 September 1992, Series A no. 237-B, p. 35, § 37).

The Court notes that in the instant case the application form for legal aid signed by the applicant on 14 April 1994 contained no information as to income or assets. The applicant asserted that he could not realise any assets because he was in custody. However, the applicant’s Statement of Assets and Liabilities drawn up with the assistance of his solicitor on 20 April 1994 showed that he had in fact very substantial assets. Having examined the Statement, Lord Justice Kennedy in the Court of Appeal stated that he understood why the applicant’s lawyers felt unable to support an application for legal aid and considered that the trial judge had no alternative but to dismiss the application. Lord Justice Kennedy added that in general legal aid could not be granted to anybody unless it appeared to the body entitled to grant it that the financial resources of the applicant were such as to make him eligible for it. Were it otherwise a defendant of ample means facing serious charges could abuse the system with impunity.

The Court must also attach weight to the fact that Judge Hoffman, having questioned the applicant’s solicitor about the progress being made in the sale of his client’s assets, was not persuaded that sufficient steps had been taken in this direction. It further notes that although the applicant claims that he could not realise the value of any of his substantial assets given that he was on remand, his deprivation of liberty would not appear to have posed an obstacle to the payment of GBP 105,114.11 into his solicitors’ account at the start of the proceedings. In addition, the Court must observe that the applicant has not given any satisfactory reply to the Government’s assertion that the Statement of Assets and Liabilities failed to make reference to the balance of GBP 40,000 in his solicitors’ account or to the fact that Ms D. had pledged GBP 50,000 towards the costs of his defence. It is noteworthy that even the applicant’s own legal team was unconvinced about his entitlement to free legal assistance.

The Court does not consider that the Court of Appeal’s decision to grant the applicant legal aid is a confirmation of the merits of his case under Article 6 § 3 (c) of the Convention. It accepts the Government’s argument that that decision was taken on the basis of incomplete information supplied by the applicant, and in particular without knowledge of the Statement of Assets and Liabilities which formed the basis of the earlier rejection of his legal aid request.

Having regard to the above considerations, the Court considers that the decision of the domestic court to refuse legal aid on the ground that the applicant had sufficient resources to afford legal representation cannot be regarded as arbitrary or unreasonable. The Court finds that in the circumstances the lack of financial means has not been proved and that the first of the two conditions contained in Article 6 § 3 (c) of the Convention was not met. The Court thus concludes that there is no appearance of a violation of this provision.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

(b)As to the applicant’s complaint under Article 6 § 1 taken in conjunction with Article 6 § 3 (b): alleged inadequacy of time and facilities for the preparation of his defence

The Court notes that the applicant had the services of an interpreter. He chose not to avail himself of these. Moreover, he had been assisted by a lawyer until the beginning of the trial and had an in-depth knowledge of the facts of the case. During the trial the judge and the prosecution took elaborate steps to assist the applicant to present his case. He was given advance warning of when witnesses were to be called and procedural matters were carefully explained to him. In addition, the applicant was allowed time as and when he required it. The Court of Appeal stated that the applicant’s arguments had been set out in detail and developed at considerable length in his oral submissions before the Crown Court. The jury had been told more than once to make every allowance for the applicant’s lack of legal representation, and for the fact that English was not his native language. According to the Court of Appeal, the trial judge was never unfairly critical of the applicant for lacking the skills of a trained advocate. Furthermore, the applicant was able to produce extensive grounds of appeal and was granted free legal aid in the appeal proceedings. The Court does not dispute the applicant’s assertion that he was faced with a daunting task in having to comply with the rhythm at which the trial was moving. However, the situation in which he found himself was treated sympathetically by the trial judge and it was open to him to request the judge at any time to order a brief adjournment in order to allow him to collect his thoughts or rest. It is to be noted that had the applicant taken advantage of his interpreter’s presence he may have been spared the burden of having to follow the pleadings and defend himself in English. As to the applicant’s assertion that he could not afford to pay for the transcripts of the previous days’ hearings, the Court notes that the applicant has not indicated whether he made representations to the trial judge or to prosecution counsel in the framework of the concessions which were extended to him to procure a daily copy.

In these circumstances, the Court finds that it has not been established that the applicant was not given adequate time and facilities for the preparation of his defence.

It follows that his complaint under this head is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

(c)As to the applicant’s complaint under Article 6 § 1 taken in conjunction with Article 6 § 3 (d): alleged refusal to have witnesses examined on his behalf

The Court recalls that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see, inter alia, the Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 68). More specifically, it does not require the attendance and examination of every witness on the accused's behalf. Its essential aim, as is indicated by the words 'under the same conditions', is a full 'equality of arms' in the matter (see the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 38-39, § 91, and the Vidal v. v. Belgium judgment of 22 April 1992, Series A no. 235, p. 3, § 33).

According to the Court of Appeal, there was no proof or affidavit from the applicant’s witness D. who, when contacted, simply wrote to say that he would not be available on the day proposed. That was, however, not the only date on which he could have given evidence. It appeared that in reality he was not prepared to attend. The court in fact adjourned for a week in order to enable the applicant’s final defence witness to attend, which is confirmation of the willingness of the trial judge to provide optimum support to the applicant in the circumstances in which he found himself.

Furthermore, even if the applicant’s claim is true that defence witnesses, unlike prosecution witnesses, had to meet their own expenses, the applicant has not asserted that this factor meant that certain witnesses refused to attend court or that, once they had attended, they were placed at a disadvantage when given evidence compared to prosecution witnesses.

In the present case there is no indication that the proceedings were unfairly conducted or that the applicant could not adduce any evidence which he regarded as being pertinent, or to put forward any argument he considered relevant. Moreover, the Court notes that the Court of Appeal undertook a detailed analysis of the applicant's complaints, addressing the issue of the assessment of evidence by the first instance court. It concluded that the lower court had not overstepped the limits of appreciation of evidence or established facts in an arbitrary manner.

In these circumstances, the Court finds no appearance of a violation of Article 6 § 3 (d) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

(d)As to the overall fairness of the proceedings

Although the Court has not found a prima facie infringement of the minimum rights laid down in Article 6 § 3 of the Convention, it has also considered whether, overall, the circumstances referred to by the applicant during his trial may nevertheless lead to the conclusion that he did not receive a fair hearing, as guaranteed by Article 6 § 1 of the Convention.

It is the Court’s established case law that the principle of equality of arms, that is the procedural equality of the accused and the prosecution, is an inherent element of a fair trial (see the Neumeister v. Austria judgment of 27 June 1968, Series A no. 8, § 22). In this connection, and with reference to the instant case, the seriousness of the offences of which the applicant was accused, the severity of the sentence which he risked and the complexity of the case are relevant considerations.

However, equally relevant is the fact that the applicant was an expert in the banking transaction which figured prominently at the trial and had no particular difficulties as regards the factual background to the case. Moreover, the proceedings were adversarial. The applicant was afforded a reasonable opportunity to present his case, including his evidence, under conditions which did not place him at a substantial disadvantage vis-à-vis the prosecution. He had the opportunity to have knowledge of and comment on all evidence adduced or observations filed.

The Court therefore concludes that, taken individually, none of the matters complained of by the applicant in relation to the proceedings before the Crown Court were inconsistent with the rights of the defence under Article 6 of the Convention. Furthermore, the Court finds no indication that, taken cumulatively, the procedural deficiencies alleged by the applicant rendered unfair, for the purposes of Article 6 § 1 of the Convention, the proceedings at first instance considered as a whole.

The Court must also have regard to the fact that the applicant’s complaints were examined on appeal. The fairness of the appeal proceedings has not been disputed by the applicant.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. DolléJ.-P. Costa

RegistrarPresident

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