AS TO THE ADMISSIBILITY OF
Application No. 13499/88
by Maurice John KIRK
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
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 1987
by Maurice John KIRK against the United Kingdom and registered on
12 January 1988 under file No. 13499/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts as submitted by the applicant may be summarised as
follows.
The applicant is a British citizen born in 1945 and resident
in Guernsey.
The applicant attempted to raise 20 clameurs de haro (a civil
remedy of some antiquity) from 1983 onwards, in relation to an alleged
trespass on his property and removal of equipment and to other
unspecified matters. In connection with eight of these clameurs, the
applicant paid to the Court a registration fee of £7.50. The courts
refused to register the remaining 12. The applicant took proceedings
to recover certain of the court fees. In one of these, the applicant
was suing the Deputy Bailiff for return of £7.50. His application was
dismissed in the Petty Debts Court by Magistrate Plummer. He appealed
and during the hearing of this appeal in court on 23 January 1986, the
applicant considered that the Procureur, who had acted in previous
proceedings was perverting the course of justice and attempted to
arrest him. The applicant alleges that he was assaulted and injured
by a police officer. An article about the incident was published on
24 January 1986 in the Guernsey Evening Press stating that the
applicant had used abusive words. The applicant was subsequently
charged with disorderly conduct. He applied to the Royal Court for
witness summonses and access to certain materials for use at the
trial, but these applications were dismissed on 25 March 1986 by a
court presided over by Magistrate Plummer.
He was found guilty in the Magistrate's Court by Magistrate
Plummer on 26 March 1986 and sentenced to 6 weeks imprisonment. On
24 March his counsel had brought to Magistrate Plummer's attention the
fact that he had earlier sat in the Petty Debts Court at first
instance in relation to the proceedings which on appeal led to the
incident charged. The Magistrate dismissed the objection since he had
not been present at the appeal itself, and he also dismissed an
objection from the applicant relating to the prejudicial publicity.
The applicant appealed to the Royal Court.
The Full Court dismissed his appeal on 15 July 1986 and
increased his sentence to 8 weeks, with a fine of £100. His
application for special leave to appeal to the Privy Council was
dismissed on 26 January 1987.
COMPLAINTS
The applicant complains of the proceedings in the Magistrates
Court and on appeal. He complains that the judges, in particular
Magistrate Plummer were not impartial, that a magistrate fell asleep
during the evidence, that the press were told after the incident that
no charges were pending and that he was unable to examine or
cross-examine the witnesses that he wished. He also complains that he
was refused access to a tape of the court hearing and other material.
He invokes Articles 5 and 6 paras. 1, 2 and 3 (a), (b) and
(d) of the Convention.
THE LAW
The applicant complains of the proceedings in which he was
convicted of disorderly conduct and invokes Articles 5 and 6 paras. 1,
2 and 3 (a), (b) and (d) (Art. 5, 6-1-2-3-a-b-d) of the Convention.
Insofar as the applicant complains of the lack of
impartiality, the Commission recalls that the European Court of Human
Rights has stated that the guarantee of impartiality required by
Article 6 (Art. 6) of the Convention implies a double guarantee: first the
subjective requirement that the judge shall be unbiased, and secondly,
an objective requirement that the situation must be such as to exclude
any legitimate doubts about his impartiality (Eur. Court H.R.,
Piersack judgment of 1 October 1982, Series A No. 53, p. 14, para.
30).
As regards the subjective requirement, the Commission finds
that no evidence has been adduced which could raise any doubts on this
point. In this context the Commission also recalls that the personal
impartiality of a judge must be presumed until the contrary is
established (Eur. Court H.R., Le Compte, Van Leuven and De Meyere
judgment of 23 June 1981, Series A No. 43, p. 25, para. 58).
As regards the objective element, while it appears that
Magistrate Plummer, who convicted the applicant of disorderly conduct
had been concerned, at first instance in the proceedings during which,
on appeal, the incident charged as disorderly conduct occurred, the
Commission finds that this factual nexus is not of such nature or
degree as to cast any doubt on the Magistrate's impartiality. The
Commission also finds that the fact that the same magistrate dealt
with the pre-trial application by the applicant for witness summonses
does not disclose any lack of impartiality on the part of that
magistrate in his capacity as trial judge. The Commission notes in
this respect that in many of the Contracting States a trial judge may
deal with procedural questions prior to the trial and decide which
witnesses should or should not be called. The mere fact of having
prior knowledge of a case cannot be considered as making the judge
prejudiced.
The Commission has examined the applicant's remaining
complaints as they have been submitted by him. It finds that these
complaints have not been substantiated and that the facts do not
disclose a breach of any of the provisions invoked by the applicant.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)