AS TO THE ADMISSIBILITY OF
Application No. 14782/89
by Avrom SHINE
against the United Kingdom
The European Commission of Human Rights sitting in private
on 10 October 1991, 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
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 14 November 1988
by Avrom Shine against the United Kingdom and registered on 15 March 1989
under file No. 14782/88;
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 citizen born in 1945. He lives in
London. He is a music promoter and was made bankrupt in 1980. He is
represented before the Commission by Mr. S. Grosz of Messrs. Bindmans,
solicitors, London. The facts of the case may be summarised as
follows.
The applicant was made bankrupt on the petition of a recording
studio following his inability to meet a personal guarantee for
payment for the use of the studio by the applicant's company, Age of
Time Records Ltd. ("AOT")
In subsequent proceedings, the studio was ordered to hand over
the master tapes of the recording to AOT and the applicant, apparently
as director of AOT, undertook to exploit the music.
After the applicant's public examination had been concluded on
31 October 1980, it appeared to the official receiver that certain
monies and transactions had not been previously disclosed. After the
applicant failed to account for these matters, the official receiver
applied for the public examination to be re-opened. Notice was given
to the address for service given by the applicant. On 25 October
1982, the Court, in the absence of the applicant, ordered that the
public examination should be re-opened and directed that the
re-opened examination be heard on 1 December 1982. The applicant
failed to attend, either then or at the adjourned hearing on 2
February 1983. The public examination was adjourned sine die.
On 1 January 1986 the official receiver applied to the court
for the applicant's discharge to be considered, as he was required to
do under the the provisions of Section 8 of the Insolvency Act 1976
("the 1976 Act"). The official receiver opposed discharge. The court
refused the applicant's discharge.
In 1987 the applicant made an application for a number of
orders, including an application:
"4) For an Order that the Bankrupt be discharged from Bankruptcy
forthwith."
The case came before Mr. Registrar Dewhurst in chambers on 18
November 1987. The Registrar's notes of the hearing are headed
"Application for Directions". In dealing with paragraph 4 the
Registrar wrote the word "misconceived". The application was struck
out as a whole as being "hopelessly misconceived, if not scurrilous in
parts".
The applicant appealed to the Court of Appeal on the ground
that the order was wrong. In his affidavit in support of his notice
of appeal the applicant deposed, inter alia, as follows:
" ...
2. On the 18 November 1987 Mr. Registrar Dewhurst
refused my applications. I appeal against his said
refusal to make the orders which were just and reasonable
for him to make.
...
10. I aver that the learned Registrar failed to make the
Orders that he should justly and reasonably have made in all
the circumstances.
..."
The appeal was listed before the Court of Appeal to see
whether in fact any requirement for leave to appeal existed. Mr.
Justice Woolf found as follows:
"With regard to bankruptcy proceedings there has been some
doubt as to whether the appeals from orders made are ones
which require leave .... This in turn involves a
consideration as to whether such appeals are in respect of
interlocutory orders or final orders .... In determining
whether or not an order is an interlocutory order or a final
order, you have to consider what will be the outcome as to
the continuation of the proceedings, first of all, if the
application in respect of which the order is made is
successful and, secondly, if the application is
unsuccessful. It will only be final if, whatever the
outcome, it finally determines the proceedings. This
position applies in bankruptcy.
In the present application, among the many orders
which were being sought, was an order that the bankrupt be
discharged from bankruptcy forthwith. If the registrar had
not declined to make that order and the application had been
successful, then of course, that would bring the bankruptcy
proceedings to an end. However, if, as happened, the order
was refused, the bankruptcy continued and the jurisdiction
of the bankruptcy court .... would have continued and his
bankruptcy would have to have continued until ultimately he
was discharged from bankruptcy........ In consequence leave
is required and Mr. Shine has not yet received leave.
...
..., having come to the conclusion that leave is
required in this case, I would reject Mr. Shine's
application for leave."
The judgment of the Court of Appeal was dated 25 July 1988.
A request to the House of Lords for leave to appeal was
dismissed on 7 November 1988.
The applicant was automatically discharged from bankruptcy
under the provisions of the Insolvency Act 1986 ("the 1986 Act") on
29 December 1989.
The bankruptcy law relevant to the present case is generally
that in force at the time the applicant was adjudged bankrupt, that is,
the Bankruptcy Act 1914 ("the 1914 Act") and the 1976 Act. The
automatic discharge provisions in Schedule II to the Insolvency Act
1986 ("the 1986 Act") also applied as from the date on which the Act
came into force.
Section 26 of the 1914 Act provided for application by a
bankrupt to the court for an order of discharge at any time after
being adjudged bankrupt. The application was, however, not to be
heard until the public examination of the bankrupt had been concluded.
The application was, in principle, to be heard in open court. Section
208 (1) of the 1914 Act provided that the court could, at any time,
review, rescind or vary any order made by it under its bankruptcy
jurisdiction; this included power to review an order refusing
discharge.
The 1976 Act made additional provision for discharge of
bankrupts. Under Section 7, the court could consider granting an
automatic discharge which would take place on the fifth anniversary of
the adjudication of bankruptcy. Section 8 provided for an application
by the official receiver for an order of discharge to be considered in
the sixth year after the adjudication of bankruptcy.
By virtue of Schedule 11 to the 1986 Act, provision was made
for the automatic discharge of bankrupts whose cases had commenced
before the 1986 Act came into force. Paragraph 13 of Schedule 11
provided that such a person would (unless the official receiver
objected and the Court agreed) be discharged three years from the date
of entry into force of the 1986 Act. The 1986 Act entered into force
on 29 December 1986.
COMPLAINTS
The applicant complains that the Court of Appeal and the
Registrar refused to allow his case to be put before a judge. He
alleges a violation of Article 6 para. 1 of the Convention. He also
states that leave to appeal to the Court of Appeal should not have
been necessary as his liberty was at issue.
The applicant also alleges violations of Articles 5 and 8 of
the Convention and of Article 1 of Protocol No. 1 by virtue of the
actions of the official receiver as his trustee in bankruptcy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 November 1988 and
registered on 15 March 1989.
On 7 June 1990 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to submit
observations on its admissibility and merits. The Government's
observations were submitted on 7 December 1990 and the applicant's
observations in reply on 12 April 1991.
THE LAW
1. The Commission considers the applicant's principal complaint
to be an allegation of a violation of Article 6 (Art. 6) of the
Convention by virtue of his inability to apply for discharge from
bankruptcy.
Article 6 para. 1 (Art. 6-1) of the Convention provides, so
far as relevant, as follows:
"1. 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 established by
law. ..."
The respondent Government submit that, even if the applicant,
who was discharged from bankruptcy under the automatic discharge
provisions of the Insolvency Act 1986 ("the 1986 Act") on 29 December
1989, may still claim to be a victim of a violation of the Convention,
the complaint is inadmissible for failure to exhaust domestic
remedies. They consider that he should have applied for his public
examination to be restored, and he could then have applied for a
hearing of his application for discharge, or he could have reapplied
for discharge, at any time.
The Commission notes that, at the relevant time, Section 26 of
the Bankruptcy Act 1914 ("the 1914 Act") provided a clear statutory
right for a bankrupt to apply to open court for a discharge from
bankruptcy at any time after conclusion of his public examination.
Provision was made for automatic discharge in the Insolvency Act 1976
("the 1976 Act) and the 1986 Act. The official receiver objected to
automatic discharge under the 1976 Act, with the result that the
applicant was not automatically discharged in 1986. Under the 1986
Act, however, the official receiver did not attempt to hinder
automatic discharge, and the applicant was eventually discharged on 29
December 1989.
The Commission is not required to consider whether the
applicant's automatic discharge constituted adequate redress for the
alleged violation of the Convention as the application is in any event
inadmissible for the following reasons.
As the Government point out, the applicant's complaint to the
Commission is directed to his inability to have a court consider his
discharge in bankruptcy, in particular his application for discharge
which was considered by Mr. Registrar Dewhurst on 18 November 1987.
However, the relevant rules at the time provided for an application
for discharge to be made at any time subsequent to the public
examination of a debtor. Although the applicant's public examination
had been concluded in 1980, it was re-opened in 1982 on discovery of
matters which had not previously been revealed. In his observations
in reply, the applicant does not deny that he was aware of the
re-opening of the public examination. He merely relies on the
original conclusion of the examination on 31 October 1980.
The Commission finds that the applicant could have made an
application for discharge, which should have been heard in open court,
provided he complied with the requirement to have his public
examination concluded. It follows that the complaint that the
applicant was not able to apply for discharge is misconceived and this
part of the application is accordingly manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also alleges a violation of Article 8 (Art. 8)
of the Convention, which provides as follows:
"1. Everyone has the right to respect for his private
and family life, 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
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others."
With regard to the question of inability to apply for
discharge, the Government consider that the applicant was not affected
in any material way by the continuation of the bankruptcy. In the
alternative, they consider that any interference with his right to
respect for private and family life, his home or his correspondence,
was justified under Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission recalls that it has found above that the
applicant was, in fact, able to apply for a discharge, but that he had
not complied with the formality of ensuring that his public
examination was concluded. However, the continuation of bankruptcy,
until the applicant's automatic discharge on 29 December 1989, will
inevitably have had some repercussions on his private and family life,
his home or his correspondence, and the Commission accepts that these
repercussions may amount to an interference with his rights under
Article 8 (Art. 8) of the Convention. However, in accordance with
Article 8 para. 2 (Art. 8-2), this interference was clearly in
accordance with the law (namely the 1914 Act, the 1976 Act and the
1986 Act), and there is no indication in the present case that the
interference with the applicant's Article 8 (Art. 8) rights by the
continued existence of his bankruptcy went any further than necessary
in a democratic society in the interests of, amongst others, the
protection of the rights and freedoms of others, such as the
applicant's creditors and potential parties dealing with him.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains of various other matters alleging
further violations of Articles 6 and 8 (Art. 6, 8) of the Convention
and violations of Article 5 of the Convention and Article 1 of
Protocol No. 1 (P1-1).
The Commission has examined these complaints as they have been
submitted by the applicant. However, after considering them as a
whole, the Commission finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the provisions
invoked by the applicant.
It follows that the remainder of 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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy