EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 30308/96

Ian Faulkner

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 1 December 1998)

30308/96 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 ‑ 16) ............................................. 1

A. The application

(paras. 2 ‑ 4) ......................................... 1

B. The proceedings

(paras. 5 ‑ 11) ........................................ 1

C. The present Report

(paras. 12 ‑ 16) ....................................... 3

II. ESTABLISHMENT OF THE FACTS

(paras. 17 ‑ 48) ............................................ 5

A. The particular circumstances of the case

(paras. 17 ‑ 44) ....................................... 5

B. Relevant domestic law and practice

(paras. 45 ‑ 48) ....................................... 8

III. OPINION OF THE COMMISSION

(paras. 49 ‑ 75) ........................................... 10

A. Complaints declared admissible

(para. 49) ................................................ 10

B. Points at issue

(para. 50) ................................................ 10

C. As regards Article 6 para. 1 of the Convention

(paras. 51-68) ............................................ 10

CONCLUSION

(para. 69) ................................................ 14

D. As regards Article 13 of the Convention

(paras. 70-72) ............................................ 14

CONCLUSION

(para. 73) ................................................ 15

E. Recapitulation

(paras. 74-75) ............................................ 15

CONCURRING OPINION OF Mr N. BRATZA ................................ 16

- ii - 30308/96

TABLE OF CONTENTS

Page

APPENDIX I : PARTIAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION ........................ 18

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION ................... 25

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a British citizen, born in 1944 and resident in Guernsey. He was represented before the Commission by Mr Philip Leach, a solicitor working for Liberty, London, and by Mr Ben Emmerson and Miss Helen Mountfield , barristers practising in London.

3 . The application is directed against the United Kingdom. The respondent Government were represented by their Agent, Mrs Sally Langrish of the Foreign and Commonwealth Office.

4 . The case concerns the unavailability of legal aid for the institution of civil proceedings by the applicant in Guernsey. The applicant invokes Articles 6 para. 1 and 13 of the Convention.

B. The proceedings

5 . The application was introduced on 6 February 1995 and registered on 27 February 1996.

6 . On 26 February 1997 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints concerning the time which lapsed between his arrest and his first appearance before the magistrate, insofar as the responsibility of the Guernsey authorities was involved, the applicant's release two days after he was granted bail, the fact that the applicant was taken on foot and handcuffed from the prison to a bank and then to the Crown Office on 28 June 1989 [1] , the applicant's liability for the costs of his defence and the alleged impossibility of instituting proceedings in Guernsey. It declared the remainder of the application inadmissible.

7 . The Government's observations were submitted on 18 July 1997, after an extension of the time-limit fixed for this purpose. The applicant replied on 21 November 1997, also after an extension of the time-limit. On 27 February 1998 the Government submitted further observations in writing. The applicant replied on 7 May 1998.

8 . On 21 May 1998 the Commission declared admissible the applicant's complaints that he could not institute civil proceedings against the Guernsey authorities for false imprisonment, assault and battery and that he did not have a remedy in this connection. It struck the application out of its list of cases insofar as it concerned the applicant's complaints about the time which lapsed between his arrest and his first appearance before the magistrate, insofar as the responsibility of the Guernsey authorities was involved, the alleged absence of speedy proceedings by which he could challenge the lawfulness of his detention and seek an order for his release in Guernsey, the alleged delay in his release after he had been granted bail, the fact that he was taken on foot and handcuffed from the prison to a bank and then to the Crown Office on 27 June 1989 and his continued liability for his defence costs. The Commission declared inadmissible the remainder of the application.

9 . The text of the Commission's decision on admissibility was sent to the parties on 5 June 1998 and they were invited to submit further observations on the merits. Both parties submitted such observations on 26 June 1998. On 10 August 1998 the Government made comments on the applicant's further observations.

10. After declaring the case admissible, the Commission, acting in accordance with former [2] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.             

11. Pursuant to the entry into force of Protocol No. 11 to the Convention the application was transferred to the Commission sitting in plenary.             

C. The present Report

12. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 1 December 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decisions on the admissibility of the application are annexed hereto as Appendices I and II.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant arrived in Guernsey in January 1989 and established two local companies, Callan and Sage Management Ltd and Callan Participating Mortgage Fund Ltd. He became the managing director of the first company.             

18. On 22 June 1989 the Royal Court in Guernsey issued an arrest warrant against the applicant for an offence under section 18 (1) (b) of the Theft (Bailiwick of Guernsey) Law 1983. On 23 June 1989 at 20:29 the applicant was arrested by the Surrey Constabulary in Surrey, England. According to a statement made by the police officer who carried out the arrest, which is contested by the applicant, the applicant was informed that he was suspected of deception. The Surrey police also seized the applicant's car. On 24 June 1989 the applicant's arrest warrant was backed for execution by a judge in Surrey.

19. The applicant claims that, during his detention in Surrey, his repeated requests to have access to a solicitor were refused. He also claims that he was questioned by a police officer who had come from Guernsey.

20. On 25 June 1989 the applicant was escorted by the above-mentioned police officer to Guernsey. He arrived at the local police station at 17:55. He was examined and at 20:50 he was charged with an offence under section 18 (1) (b) of the Theft Law. The Guernsey police seized his watch on the ground that it was property which was likely to be the subject of a charge. The watch was never returned to the applicant, as it subsequently became the subject of a seizure by H.M. Sheriff in order to satisfy a civil judgement debt obtained against him in the Guernsey courts.

21. On the morning of 26 June 1989 the applicant appeared before a magistrate in Guernsey. He was represented by a lawyer whom the applicant met in court that day and who offered his services on a voluntary basis. The magistrate ordered the applicant's release on bail, on condition that he report to the police every day, that he post a surety of £ 1,000 and he surrender his passport. At about 15:30 on the same day, a friend of the applicant deposited the amount fixed for bail at a police station in England. At 17:21 the English authorities officially informed the Guernsey authorities that the money would be transferred to them. However, H.M. Greffier decided that the monies could not be accepted until he had been assured that the applicant's friend had been advised of the consequences of posting the surety.

22. On 27 June 1989 at about 11:55 the applicant's friend was advised by the Guernsey authorities that a faster means of lodging the surety would be to transfer the monies to a bank in Guernsey in the applicant's name. The friend did that and the applicant was taken on foot and handcuffed from the prison to a bank in St. Peter's Port where he collected the monies. Then he was taken again on foot and handcuffed to the Crown Office  - the Greffe - where he deposited the bail. He was released at 14:35 on 27 June 1989.

23. On 28 June 1989 the applicant was granted parochial assistance.

24. After his release from detention, the applicant applied to H.M. Procureur for legal aid in connection with the criminal proceedings and seven civil law actions recently brought against him. He was not referred to an advocate under the voluntary legal aid scheme. However, according to the Government, the applicant was referred to Ms. F who agreed to represent him on a private client basis.  The applicant does not accept that Ms. F agreed to represent him on a private client basis. He also claims that he was not informed that, in the event of acquittal, his legal costs would not be recoverable.

25. On dates which have not been specified, the applicant was charged with three additional offences under section 18 (1) (b) of the Theft Law and an offence  under section 38 (2) (b) of the Protection of Investors (Bailiwick of Guernsey) Law 1987. The Government submit that the applicant effectively consented to being tried by the Magistrate's Court by not electing for trial before the Royal Court. The applicant, however, claims that he requested that he should be tried by the Royal Court, which usually deals with more serious offences, but his request was denied.

26. On 15 July 1989 the applicant's bail conditions were altered to enable him to attend his daughter's wedding in England.

27. On 3 August 1989 the applicant stopped receiving parochial assistance. The total amount of parochial assistance received by the applicant was £211.

28. From 6 August 1989 to 27 September 1989 the applicant was employed as a shop assistant and received the sum of £1,266.78. From 29 September 1989 to 28 November 1989 he was employed as a night porter and received the sum of £1,065.30. From 5 January 1990 to 10 March 1990 he received the sum of £329 by way of unemployment benefit. From 23 April 1990 to 21 May 1990 he received the sum of £152.04 by way of unemployment benefit. According to the applicant, benefit was payable until 21 May 1990 because at his subsequent employment he was paid monthly. From 9 May 1990 to 30 September 1990 the applicant was employed by a hotel and received the sum of £2,387. On 2 October 1990 the applicant was awarded an adult education grant in the sum of £3,075 for the academic year 1990-1991.

29. On 18 January 1991 the applicant appeared before the Magistrate's Court and pleaded not guilty to the charges under the Theft Law. By letter of 28 January 1991, the applicant's counsel informed the applicant that an agreement had been reached with H.M. Comptroller that the charge under the Protection of Investors Law would not be placed before the Magistrate who would examine the four charges under the Theft Law.

30. Sometime in January 1991 the applicant's bail conditions were altered to enable him to go to Oxford to continue his education at Plater College.

31. On 22 April 1991 the applicant was tried by a Magistrate in Guernsey on the four charges under the Theft Law. On 26 April 1991 he was acquitted and was remanded on conditional bail on the charge under the Protection of Investors Law. The bail conditions were that he post a surety of £500 and that he report to the police on a monthly basis.

32. According to local custom, after the applicant had been acquitted, his representative decided on the fee that he should be charged. On 30 July 1991 Advocate F wrote to the applicant asking him to pay her fees. It transpires from the letter that the applicant was to spend the summer working in Italy.

33. For the academic year 1991-1992 the applicant was awarded an adult education grant in the sum of £3,284.

34. On 4 November 1991 H.M. Comptroller wrote to the applicant's counsel that no further action would be taken against the applicant regarding the outstanding charge under the Protection of Investors Law.

35. On an unspecified date, the applicant applied for legal aid with a view to instituting proceedings for unlawful imprisonment against the Surrey Constabulary. His application was refused on the ground that, on the information available, he had no reasonable prospects of establishing liability in the proceedings. The applicant appealed on 10 January 1992. On a date which has not been specified, his appeal was refused.  

36. On 3 April 1992 the outstanding charge against the applicant was formally dismissed by the Magistrate's Court in Guernsey.

37. On 18 September 1992 Ms. F agreed with the applicant that her fee would be paid in monthly instalments.

38. The applicant claims that he received an adult education grant in the sum of £3,284 for the academic year 1992-1993. However, he has not submitted any documentation.

39. On 15 February 1993 the applicant was informed by his lawyer that there was no procedure by which he could recover costs incurred in criminal proceedings in Guernsey.

40. The applicant claims that he received an adult education grant in the sum of £3,284 for each of the academic years 1993-1994 and 1994-1995. However, he has not submitted any documentation.

41. On 12 October 1994 the applicant sent a letter to Ms. F in which he recorded, inter alia , her refusal to represent him in the future because of his failure to settle her fee note. On the same date he wrote to H.M. Comptroller to complain that no lawyer in Guernsey would be prepared to represent him because of the fees he still owed to Advocate F, the lawyer who represented him in the criminal proceedings.

42. On 19 October 1994 H.M. Comptroller advised the applicant that he could not make any constructive comment because the applicant had not indicated the civil matter he wished to pursue, the likely cost of pursuing it and his means and earnings. Moreover, the applicant had not indicated whether he had approached Advocate F, with a view to Ms. F's providing the applicant with a letter to the effect that she was content if the applicant should approach another Advocate, and that that Advocate should represent the applicant, notwithstanding that the applicant had not settled her fee note.

43. On 28 December 1994 the applicant received the following advice from H.M. Procureur regarding legal aid in criminal proceedings in Guernsey: "In the case of (criminal) proceedings in the Magistrate's Court a person who has very limited assets and income may apply to the Greffe for an Advocate to be allocated on the voluntary Legal Aid Rota Scheme. The Scheme is not a free legal aid scheme. It is run for the benefit of accused persons with very limited assets and means. An Advocate is entitled to make a charge if it appears after conducting a more exhaustive investigation of means and income that an applicant can afford to make payment." Insofar as the applicant considered that the Crown should pay his fee bill, the Procureur made it clear that "neither the Crown nor the States provide funding in such a case."

44. On 8 February 1995 the applicant held a discussion with H.M. Greffier concerning legal aid. On 9 February 1995 the Greffier wrote to the applicant that, although he did not know the precise nature of the matters the applicant wished to pursue, as the applicant did not wish to divulge them fully to him, he could, nevertheless, inform the applicant that no legal aid was available for the institution of civil proceedings in Guernsey.

B. Relevant domestic law

Legal aid and costs in criminal proceedings

45. Guernsey law does not provide for a legal aid scheme for criminal proceedings in the Magistrate's Court. However, there exists a scheme whereby a defendant in such proceedings who has limited assets and income, or where the interest of justice otherwise requires, may apply to H.M. Greffier for an Advocate to be allocated on the voluntary legal aid rota scheme. The way in which this scheme works is that, once a defendant has been allocated an Advocate under the Scheme, he will receive representation in the criminal proceedings and will not be billed by the Advocate for legal expenses during the course of the proceedings. At the end of the proceedings, if, after a more exhaustive investigation, the Advocate determines that the defendant does, in fact, have sufficient means, he may make a charge for the work carried out. However, if the defendant does not have adequate means, he will not be charged.

46. No provision is made in Guernsey law for the recovery of the legal costs of a defendant from the prosecution or central funds in the event of an acquittal.

Representation and legal aid in civil proceedings

47. Guernsey law and practice do not provide for a formal civil legal aid scheme. Proceedings in the Petty Debt Court (for proceedings started on or after 3 April 1984, £1000 was the maximum claimable ; for proceedings started on or after 2 February 1997, £2500 is the maximum) can be instituted in person without involving an Advocate. In proceedings before the Royal Court (there is no limit on the amount claimable ) the summons must be signed by an Advocate. Thereafter, a plaintiff may represent himself without the need of an Advocate. Contingency fees and pro bono representation are not excluded in Guernsey.

48. As to the possibility of instructing an Advocate in civil proceedings when outstanding fees to that or another Advocate have not been paid, it is normal practice amongst Guernsey Advocates not to release their files on request from a client until outstanding fees have been paid. Pursuant to the Guernsey Bar's Rules of Professional Conduct, an Advocate must refuse to act for a person in relation to a matter, if that person owes fees to another Advocate in relation to that or another matter. This rule does not apply, however, where the client has reached an arrangement with his advocate for payment of fees and is complying with that arrangement. Nor would it preclude an Advocate from doing work, such as signing a Royal Court summons, free of charge.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

49. The Commission has declared admissible the applicant's complaints that:

- he could not institute civil proceedings against the Guernsey authorities for false imprisonment, assault and battery and

- that he did not have a remedy in this connection.

B. Points at issue

50. Accordingly, the points at issue are:

- whether there has been a violation of Article 6 para. 1 of the Convention;

- and whether there has been a violation of Article 13 of the Convention.

C. As regards Article 6 para. 1 of the Convention

51. Article 6 para. 1 of the Convention, insofar as relevant, provides as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing by a(n) ... tribunal established by law."

52. The applicant submits that he wished to introduce an action for false imprisonment, assault and battery. Had his action succeeded, the damages he would have recovered would have been substantially over £1,000. As a result, the action had to be brought before the Royal Court. The applicant had a tenable claim with reasonable prospects of success. He submits in this connection that he was not returned to Guernsey with all due expedition. In view of the fact that there are 16 flights a day from London to Guernsey, the applicant argues that a delay of nearly 48 hours in returning him was not reasonable. He also maintains that he should have been released on 26 June 1989 when his friend deposited the bail monies. The bank to which the applicant was taken on 27 June 1989 could be reached by car. As a result, there was no need to march the applicant handcuffed through the streets of St. Peter's Port.

53. The applicant stresses that he could not appear before the Royal Court without a legal representative. However, the criminal proceedings against the applicant have rendered him impecunious and in Guernsey there is no legal aid system for civil cases. In any event, no Advocate in Guernsey would act for the applicant because of his outstanding debt to the lawyer who represented him in the criminal proceedings and the intended action was so complex that the applicant could not handle it himself. He could not reasonably have discovered that he could ask an advocate to sign the summons and then represent himself. In any event, the matter was too complex for such a course to be followed.

54. The Government accept that an action for wrongful arrest or false imprisonment or battery or malicious prosecution would have involved a determination of civil rights and obligations. However, they contend that the applicant has not demonstrated that he had insufficient means to pay for legal services in connection with possible civil proceedings. For example, the applicant has not provided any documentation concerning the adult education grants he claims to have received for the academic years 1992-1993, 1993-1994 and 1994-1995. Nor has he informed the Commission of the nature of the work he had done in Italy in the summer of 1991.

55. Moreover, the Government argue that, given the shortness of the applicant's time in custody and the relatively minor nature of the alleged wrongful use of handcuffs, the quantum of any damages claim was likely to have fallen below £1,000. As a result, it should have been introduced before the Petty Debts Court where proceedings can be instituted without an Advocate. The facts concerning the applicant's arrest and release from custody were straightforward and the applicant was an articulate businessman who was capable of presenting his case to the court without legal representation.

56. In addition the Government contend that, even if the case had to be introduced before the Royal Court (where the fee for signing the Summons is perhaps no more than £50), the applicant has not demonstrated that he had reasonable prospects of success in any claim which he might have wished to bring. In the Government's view, the authorities acted throughout in a lawful and reasonable manner in accordance with the Convention. The applicant was brought promptly before a judge, given that he was arrested in another jurisdiction on a Friday evening, and was released once the bail monies had been deposited with the Greffe . Handcuffing the applicant was a  reasonable and proportionate step. Moreover, after his release, the applicant could not complain that he could not institute habeas corpus proceedings. The Government stress that the applicant's application for legal aid in England to take proceedings against the English police was rejected on the ground that the applicant did not have reasonable prospects of success and that this decision was upheld on appeal.

57. In any event, the Government submit that, although the applicant owed fees to Ms. F and had ceased to pay them by instalments as agreed, the Guernsey Bar's Rules of Professional Conduct would not preclude an Advocate from signing a Royal Court Summons free of charge. The applicant could have prepared such a summons himself. Then he would have been allowed to represent himself.

58. Finally, the Government claim that the informal legal aid assignment scheme run by the Guernsey Bar may be used exceptionally in civil litigation, and certainly to the extent of providing assistance for the preparation and service of the necessary summons.

59. The Commission recalls that, according to the Convention organs' case-law, Article 6 para. 1 of the Convention guarantees an effective right of access to the courts for the determination of civil rights and obligations, but leaves to the State a free choice of the means to be used towards this end. The institution of a legal aid scheme for persons who cannot afford legal representation constitutes one of those means but there are others such as, for example, a simplification  of procedure. However, Article 6 para. 1 of the Convention may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case (Eur. Court HR, Airey v. Ireland judgment of 9 October 1979, Series A no. 32, pp. 15 and 16, para. 26). According to the case-law, where legal aid is available for the institution of civil proceedings it is reasonable to impose conditions on its availability relating, inter alia , to the prospects of success of the proceedings (No. 10871/84, Dec. 10.7.86, D.R. 48, p. 154).

60. The Commission notes that the parties are in agreement that the proceedings which the applicant wished to institute, namely an action for damages for false imprisonment, assault and battery, would have involved a determination of civil rights and obligations. The Commission recalls that the Court has considered Article 6 para. 1 of the Convention to be applicable to proceedings concerning the right to be compensated for unjustified detention, where such a right is recognised under domestic law (Eur. Court HR, Georgiades v. Greece judgment of 29 May 1997, Reports 1997-III, p. 959, para. 35, and Werner v. Austria judgment of 24 November 1997, Reports 1997-VII, p. 2508, para. 39). Moreover, it has held that the right to liberty is a civil right for the purposes of Article 6 para. 1, at least in circumstances analogous to the present ones (Eur. Court HR, Aerts v. Belgium judgment of 30 July 1998, to be published in Reports, para. 59).  The Commission, therefore, considers that the proceedings which the applicant wished to institute would have involved a determination of civil rights and obligations and that Article 6 para. 1 of the Convention would have been applicable.  

61. The Commission also notes that the applicant claims that, according to domestic law, his action would have had to be introduced before the Royal Court because his claim would have involved more than £1,000 (para. 47). Although the Government dispute that the applicant would have been able to claim such an amount, the Commission considers that they have not submitted any convincing arguments in this connection. The Commission also recalls that, according to domestic law, the summons before the Royal Court must be signed by a lawyer (para. 47). As a result, the Commission considers that for this reason alone the applicant needed legal assistance in order to have access to the court which would have been competent to hear his action in Guernsey. Having reached this conclusion, the Commission does not need to pronounce on the wider question concerning the need for legal representation because of the alleged complexity of the intended civil proceedings.

62. The Commission has next examined the applicant's financial situation during the period in which he could have instituted the intended civil proceedings. Given that the applicant was either unemployed or a student or in precarious and very modestly remunerated private sector employment (see paras. 23, 27, 28, 32, 33, 38 and 40), the Commission considers that in principle he should have qualified, from the financial point of view, for legal aid for the institution of civil proceedings.

63. However, although the Government claim that the informal legal aid assignment scheme run by the Guernsey Bar for criminal cases may be used exceptionally in civil litigation, the Commission notes that on 8 February 1995 H.M. Greffier informed the applicant that no legal aid was available for the institution of civil proceedings in Guernsey (para. 44). This answer was cast in absolute terms and, as a result, the Commission considers it established that the applicant could not obtain legal aid for the intended proceedings in Guernsey.

64. In any event, the Commission notes that the applicant did not comply with the agreement he had reached with Advocate F for the payment of the fee due to Ms. F for representing him in the criminal proceedings against him. Given the Guernsey Bar's Rules of Professional Conduct, this precluded the applicant from being represented by another Advocate on a remunerated basis (see paras. 42 and 48). The Commission does not consider it necessary to pronounce on the compatibility of such a rule with the Convention in abstracto . Having regard to the applicant's financial situation, the Commission considers that he should not have been required to comply with the agreement he had reached with Advocate F for the payment of her fee before being allowed to engage the services of another lawyer.

65. Contrary to what the Government submit, the Commission considers that it cannot be required of a prospective litigant to try to persuade a lawyer to sign the Royal Court summons for free in order to ensure respect for his right of access to the courts under Article 6 para. 1 of the Convention.

66. In the light of the above, the Commission concludes that the applicant's financial situation in conjunction with the unavailability of legal aid for civil proceedings in Guernsey effectively precluded him from lodging the intended civil action in the Royal Court.

67. It is true that the Government submit that, in the particular circumstances, the intended civil action would not have had any "reasonable prospects of success". However, although the Commission considers that States are allowed to endow their legal aid schemes with a screening system based on the intended civil action's prospects of success, it notes that because of the unavailability of legal aid in Guernsey the applicant's case was never submitted to such screening. As a result, there was no determination of the prospects of success of the intended action by a domestic authority which would have built up considerable expertise in such matters, through dealing with legal aid requests on a regular basis. Moreover, the action which the applicant intended to lodge raised matters of serious concern to both the individual and society, such as battery by State officers. In these circumstances, the Commission considers that, as opposed to what the respondent Government appear to suggest, it is not for the applicant to demonstrate that his claim had reasonable prospects of success. On the contrary, it is for the Government to adduce particularly convincing arguments for the Commission to conclude that the intended action lacked any such prospects. Having examined the Government's arguments and the applicant's reply thereto, the Commission considers that the Government have not demonstrated that this was so.      

68. It has been established that the applicant needed legal assistance in order to have access to the court which would have been competent to hear his action in Guernsey. However, his financial situation was such that he was effectively precluded from engaging the services of a lawyer on a remunerated basis and there was no possibility of obtaining legal aid. Moreover, the Government have not demonstrated that the applicant's intended action lacked any prospects of success. It follows that the applicant could not have access to a court for the determination of his civil rights and obligations, as required by Article 6 para. 1 of the Convention.

CONCLUSION

69. The Commission concludes, by 24 votes to 2, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

D. As regards Article 13 of the Convention

70. Article 13 of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

71. The applicant submits that there were no remedies by which he could challenge the impossibility of instituting civil proceedings in Guernsey. The Government have not made any detailed observations in this respect.

72. The Commission recalls that it is well-established that, where the right claimed is of a civil character, the guarantees of Article 13 are superseded by the more stringent requirements of Article 6 para. 1 of the Convention (No. 11949/86, Dec. 1.12.86, D.R. 51, p. 195). The Commission has found a violation of Article 6 para. 1 of the Convention because the applicant did not have access to a court for the determination of his civil rights and obligations. It follows that no separate issue arises under Article 13 of the Convention.

CONCLUSION

73. The Commission concludes, unanimously, that in the present case no separate issue arises under Article 13 of the Convention.

E. Recapitulation

74. The Commission concludes, by 24 votes to 2, that in the present case there has been a violation of Article 6 para. 1 of the Convention (para. 69).

75. The Commission concludes, unanimously, that in the present case no separate issue arises under Article 13 of the Convention (para. 73).

       M.-T. SCHOEPFER                       S. TRECHSEL

         Secretary                            President

      to the Commission                   of the Commission

(Or. English)

CONCURRING OPINION OF Mr N. BRATZA

With some hesitation I have voted in favour of a finding of a violation of Article 6 para. 1 of the Convention in the present case.

I accept that the proceedings which the applicant wished to institute would have involved a determination of his civil rights and obligations and that, given the likely value of the claim, such an action would have been required to be introduced in the Royal Court, with the consequence that the applicant would have needed legal assistance to present and pursue the claim.  Moreover, while I have certain doubts as to whether on the facts any such claim would have stood any real prospect of success, I do not consider that it can be said that the applicant’s claim was not arguable.

My hesitation relates to the finding of the majority of the Commission that the applicant had insufficient means to pay for the necessary legal services in connection with possible civil proceedings and that, in any event, the applicant’s failure to comply with the agreement reached with Advocate F for the payment of her fees in the criminal proceedings precluded him from being represented on a remunerated basis by another advocate in his civil proceedings.

As to the former point, I see some force in the Government’s argument that the information provided about the applicant’s financial situation during the relevant period is scanty.  In this regard, it is of some relevance that Advocate F clearly must have considered that the applicant had the means to pay for his representation in the criminal proceedings, since otherwise she would not, under the terms of the voluntary legal aid rota scheme, have made a charge for her legal services.  Nor, presumably, would the applicant himself have agreed to pay Advocate F’s fees by instalments had he been financially unable to do so.

As to the latter point, I also see force in the Government’s argument that the applicant has given no explanation as to why he did not pay the agreed instalments or as to whether he made any, and if so what, efforts to discharge his debt so as to permit him to engage another advocate in his proposed civil action.

In the end, however, I am persuaded that neither point has sufficient weight to enable me to reach a different conclusion from the majority of the Commission.

In its Airey judgment (Eur. Court HR, Airey case, judgment of 9 October 1979 Series A no. 32), the Court recognised that, while Article 6 para. 1 guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations”, it leaves to the State a free choice of means to be used towards this end.

The underlying problem in the present case is that there exists no coherent system in Guernsey for ensuring that a prospective litigant whose case raises serious issues which would clearly require legal representation and who cannot afford such representation, can gain effective access to court to have the issues determined.  More specifically, there exists no domestic body in Guernsey with the function of examining whether a litigant’s claim stands any reasonable prospects of success, whether the claim is such as to justify legal representation and whether the litigant is in a financial position to afford such representation, and with the power to provide legal representation or the funds for such representation in the event that the litigant is without adequate means.

In the absence of such a system, where, as here the applicant plausibly shows before the Commission that his claim is an arguable one and that he was not in a financial position to afford the necessary legal representation, a lack of effective access to court is established.

[1] The applicant subsequently accepted that this date was mistaken and that the particular events complained of had occurred on 27 June 1989.

[2] The term  former  refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.