AS TO THE ADMISSIBILITY OF
Application No. 30234/96
by Roger EVEREST
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
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 2 February 1996
by Roger EVEREST against the United Kingdom and registered on
16 February 1996 under file No. 30234/96;
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 applicant is a British national, born in 1939. He is a
barrister and resides in Mid-Glamorgan in Wales. In the proceedings
before the Commission he is represented by Mr. J. Mackenzie, a
solicitor practising in Southall in England.
The facts, as they have been submitted by the applicant, can be
summarised as follows:
In November 1990 the applicant and his wife were ordered by the
High Court of Justice to pay their daughter's school £10,000 for
arrears of fees. The applicant and his wife gave an undertaking to the
court to pay £500 per month.
As the applicant did not make the payments required, the school
lodged a complaint against him to the Bar Council. The Professional
Conduct Committee of the Bar decided to bring disciplinary proceedings
against the applicant, inter alia, for discreditable conduct in that
he had failed to comply with the undertaking he had given to the court
to pay the school fees and for professional misconduct in that he had
failed to provide comments on the complaint lodged against him by the
school, although the Bar Council had required him to do so.
The applicant appeared before a Disciplinary Tribunal, composed
of a judge, three barristers and Mr G, a lay member of the Professional
Conduct Committee of the Bar. The applicant had objected to the
participation of Mr G, inter alia, on the ground that G was a member
of the body which had decided to bring disciplinary proceedings against
him. However, the President of the Bar Council had refused to exercise
his discretion under the Disciplinary Tribunal Regulations 1990 and
nominate a substitute member of the Tribunal. On 26 October 1994 the
Tribunal found the applicant guilty of the two above-mentioned charges
and a third charge and suspended him from practising as a barrister for
twelve months.
On 6 January 1995 the applicant appealed against the decision of
the Disciplinary Tribunal to the Visitors to the Inns of Court. On
4 May 1995 a judge, sitting as the Visitor to the Inns of Court,
allowed the appeal in respect of the third charge but upheld the two
above-mentioned charges. The penalty remained unchanged.
The applicant applied to the Divisional Court for certiorari to
quash the decision of 4 May 1995 relying on the fact that G was a
member of the Professional Conduct Committee from which he received a
fee. On 10 July 1995 a judge refused the application. The applicant
renewed his application to the full court. On 26 July 1995 the
Divisional Court, considering that G had been entirely impartial and
the Tribunal had been entirely fair, rejected the application. The
applicant appealed against the decision of the Divisional Court to the
Court of Appeal, which rejected his appeal on 2 November 1995.
COMPLAINTS
The applicant complains under Article 6 of the Convention about
the institution of disciplinary proceedings against him to enforce an
undertaking he had given to a court not in his professional capacity
but in his capacity as a litigant. He stresses that no proceedings for
contempt of court had been instituted against him and submits that the
infliction of sanctions by the Disciplinary Tribunal had the effect of
operating a parallel system of justice to deal with his indebtedness
applying different and more draconian sanctions than those applied by
the normal system of civil justice. He also complains that his civil
rights were not determined by an impartial tribunal, because a member
of the Professional Conduct Committee sat in the Disciplinary Tribunal
that tried him.
THE LAW
The applicant complains of a violation of Article 6 (Art. 6) of
the Convention in that disciplinary proceedings were instituted against
him to deal with a civil matter and in that the Disciplinary Tribunal
of the Bar was not impartial.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention guarantees the right to a fair hearing by an impartial
tribunal in the determination of one's civil rights and obligations.
Insofar as the applicant complains that the very fact that
disciplinary proceedings were instituted against him amounts to a
violation of the Convention, the Commission considers that the
Contracting States remain free to apply disciplinary law to an act
which is not carried out in the normal exercise of one of the rights
protected under the Convention, provided that the disciplinary
proceedings comply with the relevant requirements of Article 6
(Art. 6) of the Convention if they involve a determination of civil
rights and obligations or of a criminal charge within the meaning of
that provision.
The Commission notes that the disciplinary proceedings complained
of resulted in the applicant's being suspended from practising as a
barrister for twelve months. It follows that they involved a
determination of civil rights and obligations and, as a result,
Article 6 para. 1 (Art. 6-1) of the Convention was applicable (see,
mutatis mutandis, No. 12502/86, Dec. 9.3.88, D.R. 55, p. 251).
The Commission also recalls that, according to the case-law of
the Court, disciplinary matters involving the determination of civil
rights and obligations may be dealt with by the jurisdictional organs
of professional associations, provided that either these organs comply
with Article 6 para. 1 (Art. 6-1) of the Convention themselves or they
are subject to subsequent control by a judicial body with full
jurisdiction providing the necessary guarantees (Eur. Court HR, Albert
and Le Compte v. Belgium judgment of 10 February 1983, Series A no 58,
p. 16, para. 29).
In the light of this case-law, the Commission considers that,
since the applicant's case has also been considered by on appeal by the
Visitors, it is not necessary to examine the implications, if any,
which the participation of G might have had for the impartiality of the
Disciplinary Tribunal. The Commission recalls in this connection that,
as already established in its case-law, the Visitors to the Inns of
Court act as an appeal tribunal with full jurisdiction on all questions
of fact and law, including questions relating to sentence. In this
respect, therefore, the Visitors satisfy the requirement as to the
scope of jurisdiction considered essential under Article 6 para. 1
(Art. 6-1) of the Convention (No. 12502/86, loc. cit.). Moreover, the
applicant has not questioned the impartiality of the judge who sat, as
Visitor to the Inns of Court, to examine his appeal against the
decision of the Disciplinary Tribunal.
In the light of all the above, the Commission considers that no
appearance of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention is disclosed. It follows that the applicant's complaints are
inadmissible, being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy