AS TO THE ADMISSIBILITY OF
Application No. 25290/94
by Mandy MALONE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 13 June 1994 by
Mandy MALONE against the United Kingdom and registered on
23 September 1994 under file No. 25290/94;
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 facts as submitted by the applicant may be summarised as
follows. The applicant is 27 years old, is wheelchair bound, suffers
from rheumatoid arthritis, is a registered disabled person and resides
in Lincolnshire.
Prior to 1991 the applicant and others had rented a council house
in London from London Borough Council ("the Council"). Those persons
attempted to purchase the house from the Council as part of a council
house purchase scheme. In December 1991, and prior to the purchase
completing, the Council issued possession proceedings on the basis of
perceived fraud on the part of the potential purchasers. Woolwich
County Court in London was seised of the case and there were, in all,
eleven defendants including the applicant.
On 19 February 1992 judgment was given against the defendants but
this judgment was set aside on 14 April 1992. The applicant claims that
she had to attend the latter hearing because the prosecution refused
to accept affidavit evidence, that she had to leave home at 4.30 am to
get to court at 10.30 am, that it involved a 950 kilometre round trip,
that her case was not heard until 1.00 pm and that due to her
disablement the court appearance caused her significant hardship.
In June 1992 the applicant wrote to Woolwich County Court clerk
requesting that the case be transferred from London on the basis that
she was concerned that the relevant judge and certain persons in the
Council were freemasons which would lead to political interference with
the court by the Council. She also asked that her disability be taken
into account and that it would make her life much easier if the case
was heard in a court nearer her home.
On 2 September 1993 Woolwich County Court made a number of
directions in relation to the proceedings and ordered that the case had
to be set down for trial within eight weeks. The applicant was present
and was legally represented at this hearing. She claims that her
journey by car to London for that hearing caused her severe discomfort
and that she was confined to bed for four days thereafter and required
medical assistance.
On 10 September 1993 the applicant issued an application for the
transfer of these proceedings to Grimsby County Court. On
10 September 1993 she also wrote to Woolwich County Court clerk
requesting, inter alia, the transfer of the case and a jury trial. On
17 September 1993 the applicant also communicated by letter with the
judge of Woolwich County Court making various complaints about the
Council and the location of the proceedings. On 23 September 1993 the
applicant issued another application in Woolwich County Court again
requesting the transfer of the case and various orders in relation to
a jury trial, her previous solicitors and other procedural matters.
The applicant also filed an affidavit dated 19 October 1993
referring, inter alia, to her difficulty in attending hearings in
London and exhibiting medical evidence (as to her severe rheumatoid
arthritis, as to her being largely wheelchair bound and about the pain
a long journey would involve). She also claimed that she had "no idea"
whether Woolwich County Court had facilities for wheelchairs but that
Grimsby County Court which was near to her home had such facilities.
On 26 October 1993 the applicant's application, to transfer the
proceedings to Grimsby County Court, was refused. The recorder who
heard the application referred to the medical evidence before him, the
earliest of which was dated January 1992, and concluded that the
applicant had been living in Lincolnshire since that date. He noted
that no application had been made to transfer the case until September
1993 and on that ground alone he could have refused the application.
The recorder also noted that the applicant failed to make any
mention of a transfer on 2 September 1993 when "final directions" had
been given, at which hearing the applicant was legally represented and
present in person. The recorder indicated that he was satisfied that
a transfer would place the Council at intolerable expense and that the
same did not apply to the applicant. Since the balance of convenience
favoured a trial in London the recorder refused the application. The
applicant was represented by a friend at this hearing and attended the
hearing. She submits that on that day she again suffered greatly due
to the lack of lifts and toilet facilities for the disabled.
The applicant appealed, inter alia, the recorder's decision of
26 October 1993 to the Court of Appeal.
On 26 January 1994 Woolwich County Court heard an application
of the applicant to dismiss the Council's proceedings (at which hearing
the applicant appeared in person). The application was dismissed. The
applicant was attended by a carer and claims that her carer had to
enlist the help of two court officials to lift her up the steps of the
court and up further steps to the waiting room. The hearing, which was
due to take place on the second floor, was changed to the ground floor
to accommodate the applicant and did not begin until 2.00 pm. During
the time she had to wait the applicant claims that, due to the lack of
toilet facilities for the disabled, she endured excruciating
discomfort. She also claims that the hearing was a source of additional
distress, the applicant having had to present her case from her
wheelchair.
On 4 February 1994 the applicant's appeal to the Court of Appeal
was heard and dismissed. The applicant was legally represented and was
present at the hearing. The court noted the reasons expressed by the
recorder on 26 October 1993 for rejecting the application to transfer
and further noted that no approach had been made to the Council or the
other defendants to make arrangements to accommodate the applicant when
she gave evidence so that she need not spend a night away from home.
He further noted a conflict of fact, as to the existence or not of
disabled facilities at Woolwich County Court, and the arrangements made
for a ground floor hearing the previous time the applicant was in
court. The Court of Appeal concluded as follows:
"It is always difficult to accommodate the interests and
considerations of all those involved. We would expect and hope
that any judge would pay considerable attention to an application
made by someone who is disabled and who found it difficult to
travel to a particular court, but it is quite another matter to
say that no judge in the circumstances of this case, bearing in
mind the lateness of the application and the other interests
involved, could have reached the conclusion that the recorder
did."
The applicant also claims that her appeals before the Court of
Appeal were the last in a list of five before the court that day and
that, though the case was listed for 10.30 am, it was not held until
4.00 pm causing the applicant hours of suffering while waiting having
already travelled to get to court. The path to the court was described
by the applicant's carer as "a somewhat hazardous ten minute round-
about obstacle course". The applicant claims that she was "manhandled"
into an upper floor court and that there were no lifts.
On 20 April 1994 the applicant wrote to the civil appeals officer
at the Court of Appeal complaining that her applications to the Court
of Appeal had been made ex parte and that, since she was only notified
three days before the hearing of those applications that they were to
be heard inter partes, she had no opportunity to withdraw the
applications - which she would have done as an inter partes hearing
indicated to the applicant that the court had already decided the
appeals against her. The civil appeals officer responded on 5 May 1994
explaining that appeals which include a stay of execution (as hers did)
are not ever listed ex parte.
On 17 and 18 May 1994 the main hearing in the proceedings began
and it ran at Woolwich County Court over two days before Judge Harris
but it was adjourned as Judge Harris was not available to finish the
case the following day. On 14 September 1994 Judge Harris set the
remainder of the case down for hearing but this time at a crown court
in London. It was explained, by letter dated 21 September 1994 to the
applicant's legal representatives from the judges' clerk, that the case
was to be heard in a crown court because Judge Harris had been
transferred to that new court.
On 28 November the applicant issued three applications for
judicial review of numerous decisions of the courts to date.
In December 1994 Judge Harris heard the remainder of the action
and held in favour of the Council. On 12 December 1994 a single judge
of the Court of Appeal refused leave to apply for judicial review and
on 19 January 1995 the full Court of Appeal also refused leave to so
apply (having before it, it appears, amended applications for judicial
review dated 16 January 1995).
The applicant was granted legal aid but in or around January 1994
legal aid was discharged. The applicant appears to have encountered
difficulties with numerous solicitors firms. She was legally
represented for the proposed purchase of the house, she briefed another
firm of solicitors for the possession proceedings, she then left that
firm and briefed another firm in January 1993 (with whom she stayed for
approximately six to eight months) and had briefed another firm by
February 1994 which firm no longer acts for her.
COMPLAINTS
The applicant has numerous complaints under Article 6 of the
Convention in relation to the fairness of the proceedings and the
decisions against her. She invokes, in particular, Article 6 paras. 2
and 3 (a), (b), (c) and (d) of the Convention.
The applicant also complains under Article 7 of the Convention
that she was found guilty of a criminal offence without being charged
with any such offence, under Article 8 of the Convention about
interception of her mail and about the interference by a public
authority with her right to buy the council house she had rented with
others, under Article 14 of the Convention that she was discriminated
against as a litigant on grounds of her disablement, under Article 3
of the Convention about the effect on her of all of the above matters
and about, in particular, the impact on her of the courts' handling of
her disability and under Article 13 of the Convention that she had no
effective domestic remedy.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention that the proceedings and decisions against her were unfair.
She submits, inter alia, that the courts' alleged failure to deal
properly with her disability put her at a material disadvantage in the
defence of the case, that the hearings were arranged and conducted
unfairly (in that, inter alia, she did not receive appropriate notice
of various hearings and that there was collusion between the Council
and the courts) and that she was denied a right to a jury. The
applicant invokes, in particular, Article 6 paras. 2 and 3 (a), (b),
(c) and (d) (Art. 6-2, 6-3-a, 6-3-b, 6-3-c, 6-3-d) of the Convention.
Since paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the
Convention refer to persons charged with criminal offences and since
the applicant was not so charged, the Commission has considered the
above complaints of the applicant within the context of Article 6 para.
1 (Art. 6-1) of the Convention which reads, insofar as relevant, as
follows:
"1. In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing within a reasonable
time by an independent and impartial tribunal established by
law."
The Commission would, in the first place, note that the applicant
was legally aided for the most part of the proceedings and that, if she
was unrepresented at certain stages during the proceedings, it was as
a result of difficulties she encountered with a number of firms of
solicitors.
Insofar as the applicant complains that the proceedings were
rendered unfair by the courts' treatment of her disability, the
Commission notes the reasons given by the recorder, and later by the
Court of Appeal, for refusing her application to transfer the case from
Woolwich County Court to a court nearer her home with disabled
facilities. In particular, both courts relied heavily on the
applicant's delay in bringing the application - the applicant was found
to be resident in Lincolnshire from at least January 1992, was legally
represented from then and did not make an application to transfer the
proceedings until September 1993 at which stage the court had already
made orders relating to the setting down of the action (which
proceedings involved, as well as the Council, ten other defendants).
The recorder and the Court of Appeal also referred to the lack
of an application for such a transfer even during an appropriate
directions hearing (2 September 1993), to the failure by the applicant
to approach the Council and other defendants to see if appropriate
arrangements could be made for her as regards giving evidence and to
the interests of all others involved in the case.
Other than those reasons expressed by the courts, the Commission
notes that the applicant has not demonstrated that she took any
practical steps towards alleviating any difficulties her disability may
have caused such as applying to the court to have interim applications
concerning her listed first or at least earlier on the courts' lists
or forewarning the relevant courts of her limitations due to her
disability with a view to making any practical arrangements with the
courts for her attendance.
The Commission therefore considers that the applicant failed to
appropriately bring to the attention of the court her difficulties with
regard to attendance at court due to her disability and as such
considers that the State cannot be held responsible for those
difficulties (see, mutatis mutandis, Eur. Court H.R., Stanford judgment
of 23 February 1994, Series A no. 282).
The Commission also considers that the applicant has failed to
substantiate her complaint that there was collusion between the courts
and the Council or that the hearings were otherwise arranged or
conducted unfairly.
As regards the applicant's complaint about the decisions against
her, 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
accordance with its constant 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 also recalls that 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's examination of the applicant's
complaints does not disclose any such issues.
Accordingly, the Commission considers the complaints of the
applicant under Article 6 (Art. 6) of the Convention to be manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention save for the applicant's complaint in relation to the denial
of a jury trial which is incompatible ratione materiae with the
provisions of the Convention, there being no right to a trial by jury
guaranteed by the Convention (No. 8288/78, Dec. 10.10.80, D.R. 22, p.
51).
2. The applicant also complains under Article 7 (Art. 7) of the
Convention that she was found guilty of a criminal offence without
being charged with a criminal offence.
There is no evidence that the applicant was either charged with
or found guilty of any criminal offence. However and insofar as the
applicant raises this matter because the remainder of the main hearing
was heard in December 1994 in a crown court (in which criminal cases
are normally heard), the Commission notes that the case was so
transferred in order to ensure that Judge Harris, who had already
presided over the first two days of the hearing, would so preside over
the remainder - a procedural matter which the Commission considers
would benefit the continuity of the proceedings.
The Commission therefore considers this complaint also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant further complains that her mail has been interfered
with and about a denial of her right to buy the council house which she
rented with others. She invokes Article 8 (Art. 8) of the Convention
which, insofar as relevant, reads as follows:
1. Everyone has the right to respect for ... his home and his
correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
... the economic well-being of the country, for the prevention
of disorder ... or for the protection of the rights and freedoms
of others.
The Commission considers that the applicant has not substantiated
her complaint that her mail has been interfered with. In addition, the
right to respect for an applicant's home does not include the right to
be allowed to become the owner of that home.
Insofar as the applicant complains about a lack of respect for
her home as a result of the issuance of possession proceedings by the
Council, the Commission recalls that any interference with the right
to respect for private life must be in accordance with the law, pursue
a legitimate aim and the means employed must be proportionate to that
aim (see, for example, Eur. Court H.R., Chappell judgment of
30 March 1989, Series A no. 152).
The Commission notes that the house in question was rented by the
applicant and the other defendants to the proceedings from the Council,
that those persons proposed to purchase the house under a council house
purchase scheme, that the Council did not go through with the sale on
the basis of suspected fraud and that the Council subsequently issued
successful possession proceedings based upon fraud on the part of the
potential purchasers.
In such circumstances, and even assuming that there was an
interference with the applicant's right to respect for her home by the
issuance of proceedings, the Commission considers that it was in
accordance with the law, pursued a legitimate aim (prevention of fraud
within a council house purchase scheme) and demonstrated a reasonable
relationship of proportionality between the means employed and the aim
sought to be realised (re-possession on finding against the
defendants).
In such circumstances the Commission considers the applicant's
complaints under Article 8 (Art. 8) of the Convention manifestly ill-
founded save insofar as the applicant's complaints relate to a denial
of a right to buy the house she rented with others, which is
incompatible ratione materiae with the provisions of the Convention.
4. The applicant also complains that she was discriminated against
as a disabled litigant and invokes Article 14 (Art. 14) of the
Convention which, insofar as relevant, reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as ... or other status."
Since Article 14 (Art. 14) of the Convention protects individuals
in analogous situations from discriminatory treatment in the exercise
of the rights and freedoms guaranteed by the Convention, the Commission
considers it appropriate to consider this complaint of the applicant
in the context of those complaints made by the applicant falling within
the scope of Article 6 (Art. 6) of the Convention.
However, such a difference in treatment will only be
discriminatory if it does not pursue a "legitimate aim" and if there
is no "reasonable relationship of proportionality between the means
employed and the aim sought to be realised" (see, for example, Eur.
Court H.R., Darby judgment of 23 October 1990, Series A no. 187, p. 12,
para. 31). Furthermore, the Contracting States enjoy a certain margin
of appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment; the scope
of this margin will vary according to the circumstances, the subject
matter and the background (Eur. Court H.R., Lithgow judgment of
8 July 1986, Series A no. 102, pp. 66-67, para. 177).
The matters effectively raised by this complaint relate to
various hearings in a court which was in London (and thus involved a
considerable amount of travelling and discomfort for the applicant) and
which, according to the applicant, had no facilities for the disabled.
Even assuming that the refusal by the courts to transfer the
applicant's case to a court nearer to her home with facilities for the
disabled led to an effective difference in treatment between her and
able-bodied litigants, the Commission recalls in this context again the
reasons for the refusal by the courts of her application to transfer
the proceedings and the lack of any practical steps taken by the
applicant in this respect (as referred to at 1. above).
Accordingly, the Commission considers that, in the circumstances
of the present case, the rejection by the courts of the applicant's
application to transfer the proceedings from Woolwich County Court had
a legitimate aim (the maintenance of the rights of other litigants
involved in the case) and that there was a reasonable relationship of
proportionality between the means employed and that aim (refusal of the
applicant's application to transfer the proceedings at an advanced
stage in the proceedings).
The Commission therefore considers this complaint manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicant also complains that the effect on her of all of the
above matters (including the courts' failure to deal appropriately with
her disability) constituted treatment contrary to Article 3 (Art. 3)
of the Convention, which Article reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that the case-law of the Convention organs
establishes that ill-treatment must attain a minimum level of severity
if it is to fall within the scope of Article 3 (Art. 3) of the
Convention. Further, the Court has held that the suffering occasioned
must attain a certain level before treatment can be classified as
inhuman. The assessment of that minimum is relative and depends on all
the circumstances of the case, such as the duration of the treatment
and its physical or mental effects (Eur. Court H.R., Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25).
Insofar as the applicant complains about physical discomfort and
mental anguish caused by her having to defend proceedings issued by the
Council as a disabled person (including attending a court a significant
distance from her home which allegedly had no facilities for the
disabled), the Commission again recalls in this context the reasons for
the refusal by the courts of her application to transfer the
proceedings together with the failure on the part of the applicant to
take any practical steps towards alleviating any difficulties her
disability may have caused (as outlined in para. 1 above). In such
circumstances, the Commission does not consider that the applicant was
subjected to any such treatment alleged by a public authority. In
addition, the Commission does not consider that the application
otherwise demonstrates treatment of the applicant reaching the minimum
level of severity which would fall within the scope of Article 3
(Art. 3) of the Convention.
Accordingly, the Commission considers this complaint manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. Finally, the applicant complains under Article 13 (Art. 13) of
the Convention that she was denied an effective domestic remedy.
However, the case-law of the Convention organs establishes that Article
13 (Art. 13) of the Convention does not require a remedy in domestic
law for all claims alleging a breach of the Convention; the claim must
be an arguable one (Eur. Court H.R., Boyle and Rice judgment of
27 April 1988, Series A no. 131, p. 23, para. 52). In light of the
above conclusions of the Commission concerning the applicant's other
complaints, the Commission finds that the applicant does not have an
arguable claim of a breach of her rights and freedoms which warrants
a remedy under Article 13 (Art. 13) of the Convention.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. F. BUQUICCHIO) (C. L. ROZAKIS)
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