AS TO THE ADMISSIBILITY OF
Application No. 12328/86
by Clements McCARTNEY
against the United Kingdom
The European Commission of Human Rights sitting in private
on 12 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
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. 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 6 August 1986
by Clements McCartney against the United Kingdom and registered
on 10 August 1986 under file No. 12328/86;
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 they have been submitted on behalf of the
applicant, a British citizen born in 1946 and living in Co.
Londonderry, by his representatives, Messrs. Johns Elliott Wallace &
Co., solicitors of Belfast, may be summarised as follows:
The applicant's father opened an account with the Larne branch
of the Belfast Savings Bank on the applicant's behalf in 1946. At the
time of lodging his application he applicant had a current account, a
notice account, and an investment account with the Coleraine branch of
the Trustee Savings Bank Northern Ireland, a successor to the Belfast
Savings Bank.
In 1985 the United Kingdom Government introduced legislation
whereby the various Trustee Savings Banks throughout the country would
be established on a new legal footing, permitting the floatation of
the newly created holding company on the stockmarket.
The Trustee Savings Banks Act 1985 came into force on
25 September 1985. By virtue of Section 3 of that Act, on the vesting
day, all the property rights, liabilities and obligations of the
Trustee Savings Bank Northern Ireland were transferred to a new
holding company established for that purpose, called Trustee Savings
Bank Group PLC. The vesting day is defined in Section 1(1)(d) of that
Act as meaning the day appointed for the transfer by virtue of Section
3 of the same Act of the assets and liabilities of any of the bodies
comprising the existing Trustee Savings Bank Group to any of the
bodies comprising the new Trustee Savings Bank Group. Under the
further provisions of that Act, members of the public PLC would be invited
to subscribe for shares in the new limited company Trustee Savings Bank
Group PLC.
The applicant contends that he was an ultimate beneficiary and
owner, along with other depositors, of the assets of the Trustee Savings
Bank Northern Ireland and that the implementation of the Trustee
Savings Bank Act 1985 would thereby deprive him of his property rights
and entitlements as such ultimate beneficiary and owner.
The applicant's claim to be an ultimate beneficiary and owner
along with other depositors of the assets of the Trustee Savings Bank
Northern Ireland, derives from the fact that, in his contention, that
bank is an unincorporated association, whose members are those persons
who deposit money with the bank. By virtue of such membership, the
applicant claims, with other depositors who are members, to own the
whole assets of the bank, including the whole surplus assets remaining
after deposits and interest have been paid to those entitled to them.
These contentions were the subject of litigation in Scotland (Ross v.
the Lord Advocate) and in England (Vincent v. the Trustee Savings Bank
Central Board and Others) in proceedings which were consolidated and
resulted in an ultimate appeal to the House of Lords, in respect of
which the judgment of the Court was made available to the public on 31
July 1986. The applicant was not a party to the litigation.
The House of Lords held that the Trustee Savings Banks were
regulated by the Trustee Savings Banks Act 1981 and that depositors
with any one of the banks comprising the Trustee Savings Banks could
have no rights other than such as were conferred upon them by the Act,
by the rules of the banks, and by virtue of their contract with the
bank with which they had a deposit. Having construed the relevant Act
and rules and examined the contractual relationship in the cases
before it, the House of Lords concluded that the depositors had no
proprietory interest in the surplus assets of the banks and could not
therefore complain of the transfer of those assets to the Trustee
Savings Bank Group PLC.
In the course of his judgment, Lord Templeman held that the
assets of the Trustee Savings Banks belonged to the State, subject to
the contractual right of depositors to the return of their deposits
and interest thereon and subject to the powers and duties from time to
time conferred and imposed by Parliament or the National Debt
Commission and the Trustee Savings Banks Central Board, the latter two
institutions both being institutions of the State.
The applicant contends that the opinion of Lord Templeman that
the assets of the Trustee Savings Bank belong to the State failed to
give any definition of that word, which could arguably include all
citizens of the United Kingdom, including the applicant and his fellow
depositors in the Trustee Savings Bank Northern Ireland. The
applicant contends that, in the absence of a clear definition by the
House of Lords in the above litigation of the expression "the State",
the question as to the precise legal ownership of the assets of the
Trustee Savings Bank Northern Ireland is left uncertain. Further, and
alternatively, the applicant contends that the decision of the House
of Lords is wrong in law.
The applicant has not taken legal proceedings in Northern
Ireland in relation to his complaints, because he states that "it is
believed that the said decisions of the House of Lords in the cases
mentioned above are for practical purposes likely to be effective in
so far as the Trustee Savings Bank Northern Ireland is concerned".
COMPLAINTS
The applicant complains that he is deprived of his possessions
by virtue of the provisions of the Trustee Savings Banks Act 1985, and
that that Act is discriminatory against him and other depositors with
the Trustee Savings Bank Northern Ireland. The applicant contends
that his rights under Article 1 of Protocol No. 1, and Articles 6
para. 1, and Articles 13, 14, 17 and 18 of the Convention have been
violated.
THE LAW
1. The applicant complains first that his rights under the
Convention have been violated by virtue of the implementation of the
Trustee Savings Bank Act 1985, whereby the assets of inter alia the
Trustee Savings Bank Northern Ireland have been transferred to Trustee
Savings Bank Group PLC, a company subsequently quoted on the Stock
Exchange. The applicant contends that as a depositor with the Trustee
Savings Bank Northern Ireland he was an owner of the assets of the
bank. He therefore contends that the transfer of the assets and
liabilities of the bank under the provisions of the Trustee Savings
Banks Act 1985 is contrary to a variety of provisions, including
Article 1 of Protocol No. 1 (P1-1), which protects the peaceful enjoyment
of one's possessions.
However, the Commission notes that, following the judgment of
the House of Lords in the cases of Ross v. the Lord Advocate and
Vincent v. the Trustee Savings Banks Central Board and Others, it was
held that depositors with the various Trustee Savings Banks in the
United Kingdom did not own the assets and liabilities of those banks,
which belonged to the State. The applicant contends that the judgment
of the House of Lords is either wrong in law on this point, or that
the words "the State" should be interpreted so as to include, inter
alia, the applicant, with the result that his property rights were
interfered with by the operation of the Trustee Savings Banks Act 1985.
The Commission recalls that in accordance with Article 19 (Art. 19) of
the Convention, its task is to ensure the observance of the
engagements undertaken by the High Contracting Parties in the
Convention. Accordingly, it is not competent to deal with an
application alleging that errors of domestic law have been committed
by domestic courts, except where it considers that such errors might
hve involved a possible violation of any of the rights and freedoms
set out in the Convention. The Commission refers, on this point, to
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). In the present case the
Convention provides no reason to put in doubt the finding of English
law that the bank in question was owned by the State. It follows that
this aspect of the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. In addition, however, the Commission notes that the applicant
contends that the effect of the judgment of the House of Lords may, on
one interpretation, provide the applicant - as a member of the State -
with property interests in the assets of the Trustee Savings Bank
Northern Ireland beyond his deposit with that bank. In this respect,
the Commission recalls that in accordance with Article 26
(Art. 26) of the Convention, it may only deal with a matter after all domestic
remedies have been exhausted according to the rules of international
law.
The applicant has not taken any proceedings to vindicate
his claim. In these circumstances he has failed to satisfy the
requirements of Article 26 (Art. 26) of the Convention. It follows that this
aspect of the complaint must be rejected in accordance with Article 27
para. 3 (Art. 27-3) 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)