AS TO THE ADMISSIBILITY OF
Application No. 35573/97
by Nikolai TOLSTOY-MILOSLAVSKY
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 22 January 1997
by Nikolai TOLSTOY-MILOSLAVSKY against the United Kingdom and
registered on 8 April 1997 under file No. 35573/97;
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 62 year old British citizen, a historian by
profession. He is represented before the Commission by Mr. Neville
Maryan Green, a barrister practising in Paris. The facts of the case,
as submitted by the applicant, may be summarized as follows.
The background of the present case is set out in the judgment of
the European Court of Human Rights in the applicant`s first case before
the Convention organs (Eur. Court HR, Tolstoy Miloslavsky v. the United
Kingdom judgment of 13 July 1995, Series A no. 316).
In February 1994 the applicant brought an action against Lord
Aldington to set aside the judgment obtained in the libel action in
1989 on the basis that the latter had gained a favourable judgment by
means of extensive perjury. The applicant claimed that he had obtained
new evidence, from which it was allegedly clear that the latter had
lied in the first trial, and that he was responsible for the forced
repatriation of Cossacks and Yugoslavs. Lord Aldington applied to
strike out this action on the ground that it was frivolous, vexatious
or an abuse of the process of the court. The case was heard from 4 to
6 October 1994 (judgment was handed down on 14 October 1994) and was
struck out by Mr Justice Collins. The judge found that the applicant
had failed to establish that new evidence could not have been
discovered by reasonable diligence at the libel trial and that, in any
event, the new evidence raised no possibility of persuading any court
that Lord Aldington had committed perjury.
By an order dated 16 December 1994 Mr Justice Collins ordered (1)
the applicant to pay the costs of proceedings to Lord Aldington and (2)
the applicant`s solicitors, who acted without fee for the applicant,
to pay 60 percent of these costs personally. The solicitors appealed
against this order to the Court of Appeal. The Court of Appeal
dismissed the appeal on 12 December 1995 on the grounds that it was
improper to act for the applicant in what was a "worthless cause". On
1 May 1996 the Appeal Committee of the House of Lords dismissed a
petition by the solicitors for leave to appeal.
The applicant`s application for leave to appeal from Mr Justice
Collins' decision of 14 October 1994 was refused by the Court of Appeal
on 23 July 1996 as the court found no ground to support the case on
appeal.
COMPLAINTS
The applicant alleges a series of violations under Article 6
para. 1 of the Convention and also under Article 17 of the Convention.
The applicant complains that the fraud action (ie. the action to
set aside the judgment which was allegedly obtained by perjury) heard
before Mr Justice Collins was held "in chambers", therefore the general
public and journalists were excluded. The applicant claims that no
explanation was given for this either then or later by the Court of
Appeal. The applicant alleges a violation of his right to a public
hearing.
The applicant also alleges that the degree of bias shown by
Mr Justice Collins went beyond all acceptable norms. He claims that the
judge when referring to a document which constituted new evidence
stated that "it must be common knowledge that errors in recording can
creep into such records" and was therefore persuaded in advance that
this new evidence could not have had any influence on the decision on
the libel trial. The judge also stated that he found it difficult to
believe that a jury could reasonably have regarded the date of Lord
Aldington`s departure from Austria as at all decisive of the question
whether the applicant had succeeded in justifying the defamatory
statements he had made, although the trial judge himself commented that
the date of Lord Aldington`s departure was perhaps one of the most
important issues in the case. According to the applicant, the judge`s
bias went so far, that his solicitor was only willing to continue to
plead the case after being satisfied that a transcript of the
proceedings would be made and would be made available to the applicant.
The transcript was never made available to the applicant (although the
Court of Appeal later referred to it) and when the applicant later
enquired about it, Mr Justice Collins replied that he had no
recollection of the case.
The applicant claims that the Court of Appeal dealt with the case
on 12 December 1995 when it decided on the "wasted costs order" against
the applicant`s solicitors. The applicant claims that the Court of
Appeal`s decision in this case prejudiced the substance of his case,
before it came to be decided by the Court of Appeal on 23 July 1996.
The Court of Appeal also erred on the date of the High Court judgment
in the libel case (30 November 1990 instead of 30 November 1989) when
deciding in the solicitors` proceedings as well as in the applicant`s
proceedings.
The applicant also complains that as the courts made a "wasted
costs order" against his solicitors, no solicitor would be prepared to
act for him which therefore had the effect that he was deprived of
legal assistance. As he himself had no legal training he was quite
incapable of presenting his case properly before the Court of Appeal.
He also alleges that the Court of Appeal referred to bundles of
evidence put in on behalf of Lord Aldington which the applicant had no
chance to consult.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that his case was heard "in chambers" and he was therefore
deprived of a public hearing, that the judge was biased as he would not
provide a transcript and also deliberately wanted to diminish the
importance of the "new evidence"; that the solicitors` proceedings
before the Court of Appeal prejudiced its decision in his case; that
the Court of Appeal erroneously stated the dates of the libel trial;
that he was deprived of legal assistance as a consequence of the
courts` decisions in the solicitors` case and that he had no chance to
consult the evidence put in on behalf of the other party.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal ..."
The Commission recalls that in the present case the applicant`s
"civil rights and obligations" were determined in the libel proceedings
which ended with the dismissal of the applicant`s application for leave
to appeal by the Court of Appeal on 3 August 1990. The proceedings that
are the subject of the application were brought by the applicant to set
aside the judgment obtained by the libel action on the ground that it
was obtained by perjury. The applicant alleged that he was able to
prove this on the basis of new evidence.
The Commission finds that the ultimate purpose of this action was
to re-open the libel proceedings. However, Article 6 para. 1 (Art. 6-1)
of the Convention is not applicable to proceedings in which a party
requests the re-opening of civil proceedings (see, for example, Nos.
13601/88 and 13602/88, Dec. 6.7.89, D.R. 62, p. 284 with further
reference on p. 291).
It follows that the application must be rejected as incompatible
ratione materiae with the provisions of the Convention, within the
meaning of Article 27 para 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy