FOURTH SECTION
DECISION
Application no. 5787/06
by Stephen Thomas HOLMES
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 10 February 2009 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 30 January 2006,
Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),
Having regard to the unsuccessful friendly-settlement negotiations conducted pursuant to Article 38 § 1 (b) of the Convention,
Having regard to the terms of the declaration submitted by the respondent Government on 9 October 2008 requesting the Court to strike the application out of the list of cases,
Having regard to the applicant’s response to the Government’s unilateral declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Stephen Thomas Holmes, is a British national who was born in 1956 and lives in Aylesbury. He was not represented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Moynihan of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as emerges from the documents submitted by the applicant, may be summarised as follows.
On 11 November 1999 the applicant received notice that his former wife intended to apply for ancillary relief. An interim order was made on 9 December 1999.
Following a number of directions hearings and the filing of evidence by the parties, a full hearing took place before the district judge on 22 November 2000.
The district judge’s judgment was delivered on 30 December 2000 and an order was drawn up on 9 January 2001, requiring the applicant to transfer a jointly owned house into his former wife’s sole name; his former wife to transfer another property into the applicant’s sole name; the applicant to pay monthly maintenance payments to his former wife for life and pay her costs of GBP 5,000. The time-limit for lodging an appeal was 14 days from the date of the order.
On 10 January 2001 the applicant, who was not represented, sent a fax to the Milton Keynes County Court stating that he intended to appeal and would send the necessary forms within a week.
On 3 September 2001 the applicant filed an application to appeal out of time and to vary the periodic payments order.
On 5 November 2001 the case was transferred to the Oxford County Court.
On 8 April 2002, following a hearing at which the applicant acted in person, permission to appeal out of time against the order of 9 January 2001 was refused.
On 21 May 2002 the applicant appealed to the Court of Appeal against the order of 8 April 2002.
On 30 July 2002, the appeal was heard by the Court of Appeal, but had to be adjourned because the applicant had misunderstood the issues to be determined and was not properly prepared.
The case was relisted before the Court of Appeal on 7 March 2003 and again on 30 April 2003, when leave to appeal against the order of 8 April 2002 was granted.
On 19 May 2004, having received notice of the parties’ consent, the Court of Appeal ordered that the order of 8 April 2002 be set aside and that the applicant’s appeal against the order of 9 January 2001 be listed for hearing in the Oxford County Court.
On 23 June 2004 the applicant contacted the Oxford County Court to request that, for the purposes of his appeal, a transcript be prepared of the ancillary relief hearing of November 2000. He received an incomplete transcript on 20 October 2004.
His appeal was listed for hearing on 9 November 2004 but the applicant requested an adjournment, which was granted. His request to have the case transferred from the Oxford County Court was refused.
The applicant appealed to the Court of Appeal against the refusal to transfer the case. This appeal was dismissed on 3 March 2005.
On 7 April 2005 the applicant received another incomplete transcript of the hearing of November 2000.
His appeal against the ancillary relief order of 9 January 2001 was heard by the Oxford County Court on 30 June 2005. The applicant’s appeal was allowed to the extent that the provision for periodic payments to the applicant’s former wife (which he had never paid) was henceforth dismissed on the basis that all outstanding arrears were remitted. The provision that he pay his ex-wife’s costs of GBP 5,000 was also discharged.
The applicant appealed to the Court of Appeal, claiming that he should have been awarded a lump sum. His appeal was dismissed on 2 November 2005.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the ancillary relief proceedings were not dealt with within a reasonable time, that he was not given a real opportunity to present his case and that some of the judges involved in the proceedings were not impartial.
THE LAW
A. Length of proceedings
The applicant complained about the length of proceedings. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal...”
On 7 May 2008 the respondent Government were given notice of the application and were requested to submit their written observations on the admissibility and merits of the case in respect of the applicant’s complaints under Article 6 of the Convention.
By a letter dated 9 October 2008 the Government informed the Court that they proposed to make a unilateral declaration and they requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of the United Kingdom regret that the domestic proceedings in the applicant’s case were not dealt with in a reasonable time. The Government acknowledge that there was a delay in handling the applicant’s appeal before the Court of Appeal from July 2002 to October 2002; acknowledge that the County Court on 9 November 2004 stated that the delay in the applicant’s case was not entirely his own fault; and further acknowledge that the Court of Appeal on 3 March 2005 stated that the applicant had been the victim of administrative error or management standards falling below those he was entitled to expect in the County Court. The Government therefore accept in light of these matters that there was a violation of the reasonable time requirement under Article 6 of the Convention in relation to domestic proceedings.
In these circumstances, and having regard to the particular facts of the applicant’s case, the Government declare that it hereby offers to pay ex gratia to the applicant the amount of EUR 1,500, which sum covers any pecuniary and non-pecuniary damages as well as costs and expenses, to be paid in pounds sterling to a bank account named by the applicant within three months from the date of the striking out decision of the Court pursuant to Article 37 of the European Convention in Human Rights. This payment will constitute final settlement of the applicant’s case.
The Government draw the Court’s attention to the fact that since the delay occurred in this case, several technological refinements have been introduced in the court’s listing processes. An electronic diary has been introduced for use by court staff which enables those staff to provide a more efficient service. The new electronic diary allows all staff to access it, permits multiple users, and provides more accurate data than in the past. Moreover, a web-based case-tracker facility has been introduced for the public, which enables them to obtain quick access to information concerning the current status of cases. The daily list of cases is also no published on-line. These measures are intended to ensure that the courts provide a more efficient service to court users, and to ensure that court users are better informed, so as to help eliminate inefficiency and delay in the management of court cases in the future.”
In a letter of 17 October 2008 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. The applicant also raised the objection that the Court had formed an inaccurate view of the facts based on misleading representations by the Government which, without the exchange of observations, the applicant would not be able to correct. The applicant further argued that the technological refinements introduced by the Government would have no impact on his individual case.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government outside the framework of the friendly-settlement negotiations.
The Court also recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part of an application out of its list of cases even if an applicant wishes the examination of the case to be continued, where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike out of its list if:
“for any other reason established by the Court, it is no longer justifiable to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and Protocols thereto so requires.”
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against United Kingdom, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time and about the lack of an effective remedy capable of providing redress for a breach of this right (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-....; Eastaway v. the United Kingdom, no. 74976/01, §§ 57-60, 20 July 2004; Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, §§ 26-33, 29 July 2003); Blake v. the United Kingdom, no. 68890/01, §§ 47-50, 26 September 2006; and King v. the United Kingdom, no. 13881/02, § 43-46, 16 November 2004).
In light of all the above considerations, and having regard to the Government’s clear acknowledgement of a breach and to the amount of compensation proposed, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application in so far as it concerns the applicant’s complaints under Article 6 of the Convention (Article 37 § 1 in fine).
Accordingly, this part of the application should be struck out of the list.
B. Remaining complaints
The applicant also complained under Article 6 § 1 of the Convention that he had not been given a real opportunity to present his case and that some of the judges involved in the proceedings had not been impartial.
These complaints lack substantiation. They are, therefore, manifestly unfounded and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint about length of proceedings under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the applicant’s complaints under Article 6 § 1 of the Convention about delay in his ancillary relief proceedings;
Declares inadmissible the remainder of the application.
Fatoş Aracı Lech Garlicki
Deputy RegistrarPresident
Full & Egal Universal Law Academy