AS TO THE ADMISSIBILITY OF
Application No. 29106/95
by Costas and Anthony COMNINOS and
National Justice Compania Naviera SA.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 5 September 1995
by Costas and Anthony COMNINOS and National Justice Compania Naviera
SA. against the United Kingdom and registered on 8 November 1995 under
file No. 29106/95;
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 first and second applicants are Greek nationals born in 1939
and 1946 respectively and presently resident in Piraeas, Greece. The
first applicant is the owner and manager of the third applicant,
National Justice Compania Naviera SA. The second applicant is a
minority beneficial owner of the Ikarian Reefer, a vessel owned by the
third applicant. The applicants are represented before the Commission
by D. Paraskevas, a member of the Athens Bar. The facts as submitted
by the applicants may be summarised as follows.
On 12 April 1985 the Ikarian Reefer ("the vessel") ran aground
and caught fire off the shoals of St. Ann. On 15 November 1985 the
third applicant commenced proceedings in the English High Court against
the primary underwriter of the vessel, the Prudential Insurance Company
Limited, claiming its part of the insured value of the vessel.
The proceedings took place over a period of 82 days, commencing
in May 1992. The primary issues in the case were as follows:
i) Did the Master ground the vessel deliberately or through his
negligence ?
ii) Was the fire accidental or was the vessel deliberately set on
fire by a crew member (probably the oiler T) acting on the master's
and/or chief engineer's instructions?
iii) Were the first and second applicants participants in a plan to
scuttle the vessel.
Judgment was given in favour of the third applicant on
25 February 1993. The judge found that :
(a) the owners had proved on the balance of probabilities that
the grounding of the vessel was accidental;
(b) the underwriters had not proved to the relevant standard
that the vessel was set on fire with the connivance of the
owners.
The underwriters appealed to the Court of Appeal claiming:
(a) that the grounding was deliberate and effectively the cause
of the loss.
(b) that the fire was started deliberately.
(c) that both the grounding and the fire were caused with the
connivance of the owners.
The underwriters argued that the judge had assessed the evidence
wrongly, giving undue weight to certain factors and in particular to
the demeanour of witnesses, that he had approached the case in a piece-
meal fashion when the three aspects of the case, referred to above, had
to be considered together since they were closely interrelated.
The third applicant argued that the underwriters had to show that
the findings of the trial judge as to facts and as to the credibility
of witnesses were plainly wrong, and that only on the clearest grounds
should a decision whereby a party is acquitted of fraud be displaced.
Further, it argued that since the resolution of the case was highly
dependent on the judge's assessment of the integrity of the witnesses,
this was not a case where the Court of Appeal should substitute its own
judgment for that of the trial judge.
On 8 December 1994 the Court of Appeal gave judgment. While it
accepted the findings of the Court below as to the law, it held that
the trial judge had approached the evidence of the witnesses, and in
particular of the Master, incorrectly, and had further assessed the
evidence wrongly, so coming to incorrect findings of fact in respect
of certain fundamental elements of the case.
In view of that finding, the Court of Appeal considered itself
bound to make its own findings as to events leading to the grounding
of the vessel and to reach its own conclusion as to whether the
grounding was accidental or deliberate.
The underwriters claimed that a number of important findings of
fact made by the trial judge were erroneous and both parties made
submissions before the Court of Appeal in respect of those alleged
errors.
In the course of a hearing, the Court of Appeal therefore
reassessed all the evidence, including witness statements, expert
reports, interview records and primary evidence that had been before
the trial court, as well as the transcript of the trial itself. As
regards evidence that had not been considered during the trial, the
Court of Appeal made clear on several occasions that it could not take
account of such evidence.
By a judgment running to 181 pages, the Court of Appeal set out
the conclusions it had come to in the light of the evidence referred
to above and of the arguments that had been made by the parties before
it. It concluded that:
1. the vessel had been deliberately cast away with the
connivance of the third applicant;
2. the fire had been started deliberately and that it had
almost certainly been started by the oiler, T, probably with the
knowledge and connivance of the chief engineer.
On 4 January 1995, the third applicant submitted a petition for
leave to Appeal to the House of Lords. On 9 March 1995 the Appeal
Committee of the House of Lords refused leave to appeal without a
hearing. As is the normal practice, no reasons for its decision were
given.
COMPLAINTS
1. The applicants complain that they have been denied the right to
a fair trial because findings of fact made by the trial judge after he
had seen and heard numerous witnesses, were overturned by the Court of
Appeal without it hearing any witnesses. The applicants claim that the
failure of the Court of Appeal to see or hear the witnesses in the
circumstances of this case fundamentally compromised the fairness of
the proceedings.
2. The applicants further complain under Article 6 of the Convention
that in the circumstances of this case, where the facts were highly
complex and the appeal raised important points of law, the refusal of
the Appeal Committee of the House of Lords to refer the application for
leave to an oral hearing and its failure to give reasons for its
refusal of leave violated the applicants' rights under Article 6.
3. The first and second applicants further complain that the
consequences of the Court of Appeal's findings were such as to render
the trial one determinative of a criminal charge, since their findings
were effectively that the applicants had conspired to run the vessel
aground in order to claim insurance moneys and had therefore committed
fraud. This was extremely detrimental to the applicants' reputation
within the shipping world, of which they were previously highly
respected members. Consequently the applicants claim that the trial
should have included the guarantees provided by Articles 6 paras. 2 and
3 of the Convention.
THE LAW
1. The applicants complain under Article 6 (Art. 6) of the
Convention that the Court of Appeal overturned findings of fact made
by the trial court without re-hearing witnesses, thus rendering the
trial unfair as a whole. Article 6 para. 1 (Art. 6-1) of the
Convention 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 within a reasonable time by an
independent and impartial tribunal established by law ..."
With regard to the judicial decision of which the applicants
complain, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its established
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45).
The Commission further recalls that in assessing whether the
court proceedings satisfied the requirements of Article 6 para. 1
(Art. 6-1) of the Convention the proceedings must be examined as a
whole (see No. 12952/87, Dec. 6.11.90, D.R. 67, p. 175 at p. 197).
The Commission observes that in this case the applicants had a
full hearing before the High Court where they were able to call and
cross examine the witnesses they chose. They obtained judgement in
their favour, the judge ruling that:
(a) the owners had proved on the balance of probabilities that
the grounding of the vessel was accidental.
(b) the underwriters had not proved to the relevant standard
that the vessel was set on fire with the connivance of the
owners.
The Commission notes that the underwriters appealed on three
grounds:
(a) that the grounding was deliberate and effectively the cause
of the loss.
(b) that the fire was started deliberately.
(c) that both the grounding and the fire were caused with the
connivance of the owners.
The applicants would have been given notice of these three
grounds. They would therefore have been able to address them all at
the appeal hearing and to make any submissions as to fact or law that
they considered relevant. Further, the applicants have not shown that
the findings of fact made by the Court of Appeal were based on evidence
that was not before the High Court or on which they did not have a
chance to comment. It is true that, unusually, the Court of Appeal
overturned the trial judge's findings of fact. The Commission notes
however that the Court of Appeal did so on the ground that the trial
judge had approached the evidence of the witnesses on an incorrect
basis and had in consequence reached incorrect findings of fact on
certain fundamental elements of the case. The Commission further notes
that, in reassessing the evidence, the Court of Appeal took account of
all the evidence before the trial court, including witness statements,
expert reports, interview records as well as the transcripts of the
oral evidence at the trial itself. In these circumstances, the
Commission does not consider that the fact that the Court of Appeal
overturned the trial judge's findings of fact can in itself constitute
a ground for finding that the trial as a whole was unfair.
It follows that this part of the application must be dismissed
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants also complain that their rights under Article 6
para. 1 (Art. 6-1) were infringed because the House of Lords failed to
require an oral hearing before determining whether to grant leave to
appeal and failed to give reasons for its refusal. In this connection,
the Commission recalls that when a Supreme Court determines, in a
preliminary examination of a case, whether or not the conditions
required for granting leave to appeal have been fulfilled, it is not
making a decision relating to "civil rights and obligations" (see
No. 11826/85 Dec. 9.5.89, D.R. 61 p. 138). It follows that Article 6
para. 1 (Art. 6-1) does not apply to the proceedings in which the House
of Lords, without entering into the merits, refused the applicants
leave to appeal against the judgment of the Court of Appeal.
It follows that this part of the application must be dismissed
as incompatible rationae materiae within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. The first and second applicants further complain that since the
trial was effectively determinative of a criminal charge, they were
deprived of their rights under Article 6 paras. 2 and 3
(Art. 6-2, 6-3) of the Convention. So far as relevant, these
provisions provide as follows.
"2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following
minimum rights:
........
........ "
The Commission recalls that the notion of "criminal charge" in
Article 6 (Art. 6) is an autonomous concept. In determining whether the
trial determines a criminal charge, the Commission will consider three
criteria: (i) whether the offence belongs to the criminal law according
to the legal system of the respondent State; (ii) the nature of the
offence; (iii) the nature and degree of severity of the penalty which
may be imposed (see Eur. Court HR, Schmautzer v. Austria judgment of
23 October 1995, Series A no. 328-A, p. 13, para. 27).
The proceedings with which this application is concerned were
commenced by the third applicant against the main underwriter of the
vessel, for the purposes of claiming insurance moneys. Neither the
first or second applicants have been accused or convicted of any
offence nor have they been subjected to punishment or required to pay
any penalty. Were the first of second applicants to be prosecuted by
the authorities following the findings of the Court in the civil
proceedings, they would, in the course of those proceedings, be
entitled to the guarantees laid down in Article 6 paras. 2 and 3
(Art. 6-2, 6-3). Those provisions are not however applicable to the
proceedings with which this application is concerned, which are clearly
civil in nature.
It follows that this part of the application must be dismissed
as incompatible rationae materiae within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy