EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 26109/95

Eusebio Santa Cruz Ruiz

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 1 July 1998)

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) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-33) 3

A. The particular circumstances of the case

(paras. 17-28) 3

B. Relevant domestic law and practice

(paras. 29-33) 4

III. OPINION OF THE COMMISSION

(paras. 34-80) 8

A. Complaints declared admissible

(para. 34) 8

B. Points at issue

(para. 35) 8

C. As regards Article 5 para. 1 of the Convention

(paras. 36-51) 8

CONCLUSION

(para. 52) 11

D. As regards Article 5 para. 5 of the Convention

(paras. 53-60) 11

CONCLUSION

(para. 61) 11

E. As regards Article 6 paras. 1 and 3 of the Convention

(paras. 62-76) 12

CONCLUSION

(para. 77) 14

F. Recapitulation

(paras. 78-80) 14

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 15

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 Spanish citizen, born in 1935 and resident in Madrid. 

3. The application is directed against the United Kingdom.  The respondent Government were represented by their Agent, Mr Eaton.

4. The case concerns the proceedings for the applicant's committal to prison for his failure to pay maintenance arrears to his former wife, and his arrest and imprisonment.  The applicant invokes Articles 5 and 6 of the Convention.

B. The proceedings

5. The application was introduced on 28 April 1994 and registered on 3 January 1995.

6. On 29 November 1995 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 its admissibility and merits.  On 5 March 1996, upon request of the Government, the Commission decided to adjourn the examination of this application pending the outcome of the case of Benham v. the United Kingdom before the Court (Eur. Court HR, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III no. 10, p. 738).

7. On 9 July 1996, the Commission invited the respondent Government to submit written observations on the admissibility and merits of the application in the light of the Benham judgment of 10 June 1996.

8. The Government's written observations were submitted on 26 November 1996, after an extension of the time-limit fixed for that purpose.  The applicant replied on 1 February 1997.

9. On 22 October 1997 the Commission declared admissible the applicant's complaints concerning the lawfulness of his detention and the lack of compensation, and the unfairness of the proceedings, insofar as he was allegedly not informed of the nature and cause of the accusation against him and did not have adequate time and facilities to prepare his defence , as legal aid was not available and he was not legally represented before the Magistrates' Court.  It declared inadmissible the remainder of the application.

10. The text of the Commission's decision on admissibility was sent to the parties on 5 November 1997 and they were invited to submit such further information or observations on the merits as they wished.

11. After declaring the case admissible, the Commission, acting in accordance with 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.

C. The present Report

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

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

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

14. The purpose of the Report, pursuant to 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 decision on the admissibility of the application is annexed hereto. 

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. By decree nisi of 10 May 1976, made absolute on 5 July 1976, the marriage concluded on 23 April 1962 between the applicant and Mrs D.-V. S.C. was dissolved.

18. On 27 July 1978, an order was issued by the Brighton County Court, following a complaint made by the applicant's former wife, to enforce payment of maintenance arrears.  The applicant was ordered to pay to his former wife "periodical payments for herself until such date as she remarry or further order ... and to the children ... until they shall respectively attain the age of seventeen years or further order ...".

19. On 30 October 1979, the Home Office sent a request to the Ministry of Justice in Spain to take all appropriate steps on behalf of the claimant, if no settlement could be reached on a voluntary basis, for the recovery of maintenance from the applicant.

20. On 4 January 1994, the applicant was arrested at Gatwick airport upon his arrival in the United Kingdom for family reasons following a complaint made by the applicant's former wife for the enforcement of the maintenance arrears.  The warrant had been issued by a Magistrate of the then Hove Magistrates' Court on 10 December 1992.  The applicant states that he was not shown an arrest warrant.

21. Following the arrest the applicant was remanded in custody and held allegedly incommunicado in Brighton and Hove Magistrates' Court's cells for an unspecified number of hours.  The parties do not agree as to whether the applicant was given the opportunity to telephone the Spanish Consulate while at the airport.

22. On the same day the applicant was brought before a Magistrates' Court without any advance notice and without the assistance of either a legal representative or an interpreter.  According to a statement of 25 May 1994 of the Deputy Clerk to the magistrates the applicant gave evidence in English and was capable of defending himself.  Also, the proceedings were taken at a slow pace in order to assist the applicant.

23. By decision of 4 January 1994 the Brighton and Hove Magistrates' Court, having been satisfied that the arrears were proved, committed the applicant to 42 days' imprisonment in default of payment of a sum of money amounting to 25,140.00 due in respect of maintenance arrears.  The applicant was not informed in writing of the sentence imposed on him.  On 7 January 1994 the applicant's solicitors, who were appointed by him on an unspecified later date, requested and were promptly provided with a copy of the order, the magistrates' written reasons for their decision and the notes of evidence given at the hearing.

24. On 7 January 1994, the applicant was released on payment by his former wife's mother of the arrears of maintenance in question, amounting to £22,074.00.

25. On 25 January 1994, the Clerk of the Brighton and Hove Magistrates' Court stated that the maintenance order had never been registered and that the magistrates' decision was ultra vires so that it would appear that an appeal by way of case stated was unnecessary as the issue over the arrears could be fully argued in the County Court. 

26. On 25 February 1994, the Clerk of the Brighton and Hove Magistrates' Court confirmed, in an extract from the Magistrates' Court register, that on about 18 January 1994, the court had found that the said decision was ultra vires .

27. In the meantime, the applicant's solicitors had made an application to the magistrates to state a case.  This was not pursued because the applicant had been released on payment of the sums owed.  The matter was instead pursued by way of an application in the County Court to challenge the 1978 maintenance order, and the arrears, in their entirety.

28. In a consent Order of 2 May 1995, the applicant and Mrs D.-V. S.C. agreed to have the maintenance order of 27 July 1978 set aside.

B. Relevant domestic law and practice

29. Satisfaction and enforcement of judgments or orders by Magistrates Courts (Sections 75-96A) of the Magistrates' Court Act 1980)

Section 76(1)

"Subject to the following provisions of this Part of this Act, and Section 132 below, where default is made in paying a sum adjudged to be paid by a conviction or order of a Magistrates' Court, the court may issue ... a warrant committing the defaulter to prison."

Section 92

"A Magistrates' Court shall not exercise its power under Section 76 above to issue a warrant to commit to prison a person who makes default in paying a sum adjudged to be paid by an order of such a court except where the default is under ... a Magistrates' Court maintenance order ..."

Section 93

"(1) Where default is made in paying a sum ordered to be paid by a magistrates' court maintenance order, the court shall not enforce payment of the sum under section 76 above except by an order made on complaint.

...

(5)  If a complaint under this section is substantiated on oath, any justice of the peace acting for the same petty sessions area as a court having jurisdiction to hear the complaint may issue a warrant for the defendant's arrest, whether or not a summons has been previously issued.

...

(6) A Magistrates' Court shall not impose imprisonment in respect of a default t which a complaint under this section relates unless the court has inquired in the presence of the defendant whether the default was due to the defendant's wilful refusal or culpable neglect, and shall not impose imprisonment as aforesaid if it is of opinion that the default was not so due..."

30. Review of administrative decisions and decisions of inferior courts

By virtue of Section 111 of Magistrates' Court Act 1980 a party to proceedings before a Magistrates' Courts may "question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state  a case for the opinion of the High Court on the question of law or jurisdiction involved ..."

The High Court is not seized of an appeal by way of case stated until the Magistrates' Court has actually stated a case and it has been lodged in the High Court.

31. Distinction between acts merely wrong in law and acts in excess of jurisdiction

In English law, orders of a magistrates' court which are in excess of jurisdiction are void from the outset, whereas orders made within jurisdiction remain valid until set aside by a superior court.  It is only in respect of the former type of error that a court can be held civilly liable in damages (under section 108 of the Courts and Legal Services Act 1990, which replaced section 45 of the Justices of the Peace Act 1979 - see paragraphs 27-28 below).

The appropriate test for whether an order of a magistrates' court is void for lack of jurisdiction is that set out by the House of Lords in McC . v. Mullan [1985] Appeal Cases 528.  In that case magistrates had made an order sending a 14-year-old boy to a training school after a hearing at which he was not legally represented, had not applied for legal aid and had not been informed of his right so to do.  The order was quashed on judicial review on the ground that, by virtue of Article 15 (1) of the Treatment of Offenders (Northern Ireland) Order 1976, magistrates were not permitted to pass a custodial sentence for the first time on a juvenile who was not legally represented, unless he had applied for legal aid and been refused on grounds of means or had been informed of his right to apply for it but had refused or neglected to do so.

The boy then applied for damages for false imprisonment against the magistrates.  Since the case was decided prior to the enactment of the Courts and Legal Services Act 1990 and at a time when it was the law that magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction (see para. 32 below), the House of Lords was required to decide the jurisdictional question.

In its judgment, a magistrates' court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause, (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent.  The instant case fell within the third limb of the rule: the magistrates were liable in damages because they had not observed the requirements of Article 15 (1) of the 1976 Order.

During the course of his judgment speech, Lord Bridge commented (at page 546 E-F), on the jurisdiction of magistrates in conducting a criminal trial:

"... once justices have duly entered upon a summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction ...  [A]n error (whether of fact or law) in deciding a collateral issue on which jurisdiction depends will not do so.  Nor will the absence of any evidence to support a conviction ..."

The final limb of the rule formulated by the House of Lords in McC . v. Mullan (that is, that magistrates exceed their jurisdiction when they make an order which has no foundation in law because of a failure to observe a statutory condition precedent) was applied by the Court of Appeal in R. v. Manchester City Magistrates' Court, ex parte Davies [1989] 1 All England Reports 30, a case concerning rates (the predecessor to the community charge).  Again, the issue was whether magistrates had acted in excess of jurisdiction and were therefore liable in damages for false imprisonment.

The plaintiff had been unable to pay all of the rates for which he became liable in December 1984, and in January 1986 he failed to follow his accountant's advice to close his business and to go bankrupt.  Applying legislation similar to Regulation 41 of the Community Charge Regulations, the magistrates found that his failure to follow the accountant's advice constituted culpable neglect and they committed him to prison.  The Court of Appeal held that no causal connection had been established between the failure to follow advice in 1986 and the failure to pay the rates in 1984, and that the magistrates had not properly entered into the inquiry (as to whether the failure to pay was due to culpable neglect) required by the legislation as a condition precedent of the warrant of commitment.  They were therefore acting in excess of jurisdiction and were liable in damages.

The three Appeal Court judges expressed their findings in slightly different terms.  Lord Justice O'Connor observed that "they never carried out the inquiry required [by the law]"; Lord Justice Neill found that "some inquiry about the applicant's finances was made", but that "a clear and crucial distinction can be drawn between the inquiry required by the statute and the inquiry which was in fact carried out.  The justices never examined the question whether the failure to pay was due to culpable neglect"; and Sir Roger Ormrod (who dissented from the majority decision) said: "... it is quite clear that the justices carried out an inquiry into means carefully and in detail ...  It is equally plain that they misdirected themselves completely ...  They ... failed to realise that the question they had to decide was whether the applicant's failure to pay his rates was `due either to his wilful refusal or to his culpable neglect'" (see pp. 637 B, 642 H - 643 G and 647 E).

32. Magistrates' liability for damages for false imprisonment

On 1 January 1991 Section 108 of the Courts and Legal Services Act 1990 entered into force.  The Act replaces Sections 44 and 45 of the Justices of the Peace Act 1979 providing, inter alia , that an action lies against a Justice of the Peace (magistrate) who acts beyond jurisdiction if, and only if, it is proved that he acted in bad faith.

33. Legal aid

Neither the civil nor the criminal legal aid scheme provides for full representation before the magistrates in maintenance order commitment proceedings.  The "Green Form" scheme provides two hours' worth of help from a solicitor, and can include preparation for a court case, but does not provide for representation.  An extension of the costs limit can be granted by the Legal Aid Board.  Assistance by way of Representation ("ABWOR") enables the court, in limited circumstances, to appoint a solicitor who happens to be within the court precincts for purposes other than the provision of ABWOR to represent a party who would not otherwise be represented.  The appointment may be made either of the court's own motion or on application by a solicitor.  The court is under no obligation to advise a party of the possibility of an appointment.  The Duty Solicitor Scheme, which provides representation to accused in criminal cases before magistrates, does not extend to maintenance order proceedings.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

34. The Commission declared admissible the applicant's complaints concerning the lawfulness of his detention and the lack of compensation, and the unfairness of the proceedings, insofar as he was allegedly not informed of the nature and cause of the accusation against him and did not have adequate time and facilities to prepare his defence , as legal aid was not available and he was not legally represented before the Magistrates' Court.

B. Points at issue

35. The points at issue in the present case are:

- whether the applicant's arrest and detention were in conformity with Article 5 para. 1 of the Convention;

- if not, whether there has been a violation of the applicant's right to compensation under Article 5 para. 5 of the Convention;

- whether the proceedings in which the applicant was committed to prison involved violations of Article 6 paras. 1 and 3 of the Convention.

C. As regards Article 5 para. 1 of the Convention

36. Article 5 para. 1 of the Convention, insofar as relevant, provides as follows:

"1. Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for

non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;..."

37. The applicant states that he was arrested without any arrest warrant.  Furthermore, it was recognised by the Magistrates' Court itself that the committal decision was ultra vires .  He states that it was the solicitor acting on his behalf who discovered that the magistrates had acted in excess of jurisdiction and considers that the three grounds of excess of jurisdiction stated in McC v. Mullan [1985] A.C. 528 apply in this case: that the court acted without having jurisdiction, that it exercised its powers in a procedural manner that involved a gross and obvious irregularity and that it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent.  He concludes that his detention was unlawful under Article 5 para. 1 of the Convention.

38. The Government note that the present application bears a close resemblance to the Benham v. the United Kingdom case (loc. cit.) and that the relevant provisions of the Magistrates' Courts Act 1980 equate to the provisions of the Community Charge Regulations which were in issue in the Benham case, where the Court found no violation of Article 5 paras. 1 and 5 of the Convention.

39. The Government concede that there is an additional feature in the present case, namely the statement in the register of the Brighton and Hove Magistrates' Court that on about 18 January 1994, the court found that the maintenance order of 1978 had never been registered at the court and that the proceedings for enforcement were therefore ultra vires .  They explain that at the time of the original complaint of default, there was no provision for reciprocal enforcement of maintenance orders between the United Kingdom and Spain and no requirement for registration of the 1978 order, since the Magistrates' Court was involved in transmitting a claim for maintenance based on the  1978 order rather than an application for enforcement of that order itself.  However, by the time reciprocal enforcement became possible, no application was made for it, which would have required registration.  It appears that when the applicant's former wife sought in 1992 to take further steps to enforce the 1978 order, the court mistakenly took the transmission of her separate application on 30 October 1979 as the transmission of a reciprocal enforcement request which would have required the order to be registered; and so the court thereafter proceeded on the mistaken belief that the 1978 order had been registered and that the court had power to enforce it as if it had made the order itself, by virtue of section 3 (2) of the Maintenance Order Act 1958.  The lack of registration was not discovered until after the applicant's release from prison.

40. The Government consider that in the present case, there was no effective finding under domestic law that the Magistrates' Court erred, since the magistrates themselves could not set aside their order and the appeal by way of case stated was not pursued before the High Court.  In the circumstances, while it is conceded that there was an irregularity which might have resulted in the magistrates' order being set aside, the matter has not been adjudicated, and the Government submit that it is certainly open to argument that the mistaken belief of the Court that the 1978 order had been registered, was such as to found jurisdiction even though subsequently shown to be incorrect.  Nor can it be said that the detention was arbitrary in the sense that the magistrates who ordered the applicant's detention acted in bad faith or that they neglected to attempt to apply the relevant legislation correctly.

41. The Government conclude that, notwithstanding the magistrates' concession that they were not empowered to take enforcement action because the 1978 order had not been registered in their court, the detention of the applicant pursuant to the magistrates' order was not unlawful within the meaning of Article 5 para. 1 of the Convention.

42. The Commission considers that the main issue under Article 5 of the Convention in the present case is whether the applicant's detention pursuant to the magistrates' judgment of 4 January 1994 was "lawful" and whether it complied with "a procedure prescribed by law".

43. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Quinn v. France judgment of 22 March 1995, Series A no. 311, p. 18, para. 47).

44. Where the Convention refers directly back to domestic law, as in Article 5, compliance with such law is an integral part of the obligations of the Contracting States and the Convention organs are accordingly competent to satisfy themselves of such compliance where relevant (Article 19); the scope of their task in this connection, however, is subject to limits inherent in the logic of the European system of protection, since it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, inter alia , Lukanov v. Bulgaria judgment of 20 March 1997, Reports of Judgments and Decisions 1997-II no. 34, p. 529).

45. A period of detention will in principle be lawful if it is carried out pursuant to a court order.  A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention (see Benham v. the United Kingdom judgment, loc. cit.).  However, detention effected pursuant to a conviction which had no basis under domestic law and was arbitrary cannot be considered "lawful" (cf. Eur. Court HR, Tsirlis and Kouloumpas v. Greece judgment of 29 May 1997, Reports of Judgments and Decisions 1997-III no. 38, p. 909).

46. In the present case, not having the benefit of a formal ruling of a domestic court on the lawfulness of the applicant's detention - which was the consequence of the operation of Section 108 of the Courts and Legal Services Act 1990 (see para. 32 above) - the Commission must examine whether it can be said, with a sufficient degree of certainty, that the applicant's detention was unlawful under domestic law (cf. Benham v. the United Kingdom judgment, loc. cit., para. 46).

47. The Commission notes that the United Kingdom law relevant to the present application distinguishes between acts of a magistrates' court which are within its jurisdiction and those which are in excess of jurisdiction.  The former are valid and effective unless and until they are overturned by a superior court, whereas the latter are null and void from the outset (see para. 31 above).

48. As indicated by the Government (see para. 39 above), the Magistrates' Court when ordering the applicant's imprisonment acted under the mistaken belief that the 1978 order had been registered and that the court had power to enforce it.  The mistake in question concerned the very existence of the magistrates' power to order imprisonment in the applicant's case.

49. Furthermore, the Commission recalls that on 25 February 1994 the Clerk of the Brighton and Hove Magistrates' Court confirmed, in an extract from the Magistrates' Court register, that on about 18 January 1994, that court had found that its decision of 4 January 1994 committing the applicant to prison was ultra vires (see para. 25 above).

50. Therefore, it is clear that the domestic court which issued the impugned commitment order expressed the opinion, albeit not in a legally binding decision, that the committal order had been issued in excess of jurisdiction.

51. The Commission considers that in these circumstances, it can be said with a sufficient degree of certainty that the applicant's detention was unlawful under United Kingdom law.

CONCLUSION

52. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 of the Convention.

D.    As regards Article 5 para. 5 of the Convention

53. Article 5 para. 5 of the Convention, insofar as relevant, provides as follows:

"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

54. The applicant complains that contrary to paragraph 5 of Article 5 of the Convention he had no possibility to obtain compensation for his unlawful detention and also for the fact of having been arrested in public and sentenced to forty-two days' imprisonment, and for the moral damage suffered by him.

55. The Government, considering that the detention of the applicant pursuant to the magistrates' order was not unlawful within the meaning of Article 5 para. 1 of the Convention, submit that Article 5 para. 5 of the Convention is not applicable.

56. The Commission considers that the issue to be examined is whether there has been a violation of the applicant's right to compensation under Article 5 para. 5 of the Convention in respect of his detention between 4 and 7 January 1994.

57. The Commission recalls its conclusion that this detention was unlawful and therefore in breach of Article 5 para. 1 of the Convention (see para. 52 above).

58. Also, it appears undisputed that under United Kingdom law, after the entry into force of Section 108 of the Courts and Legal Services Act 1990 (see para. 32 above), it is not possible to obtain compensation in circumstances such as those of the applicant without establishing that the magistrates had acted in bad faith.

59. However, paragraph 5 of Article 5 of the Convention requires an enforceable right to compensation for those who have been the victims of arrest or detention in contravention of the provisions of Article 5 (see Wassink v. the Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 14, para. 38) regardless of the fact whether or not the detention was ordered in bad faith.

60. It follows that the applicant was deprived of his right to compensation, as guaranteed by Article 5 para. 5 of the Convention.

CONCLUSION 

61. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 5 of the Convention.

E. As regards Article 6 paras. 1 and 3 of the Convention

62. Article 6 of the Convention, insofar as relevant, provides as follows:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ...

3. Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b. to have adequate time and facilities for the preparation of his defence ;

c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;..."

63. The applicant complains that the proceedings before the Magistrates' Court which committed him to prison were unfair.  He states that he knew generally about the demand of his former wife but was not shown an arrest warrant.  He was not allowed to telephone the Spanish Consul and was totally incommunicado while in custody.  Also, he was never offered legal assistance let alone free legal assistance.

64. The Government submit that the proceedings were not criminal and refer to the applicable criteria stated in the Benham judgment.  They consider that the proceedings in the present case are a matter of civil debt between the parties to the maintenance proceedings and point to the fact that the applicant was released immediately  upon payment on his behalf of the arrears.  Concerning the nature of proceedings, the Government state that the present proceedings are brought by the private party to whom payment of maintenance is due and the law concerning liability to pay maintenance is not of general application to all citizens, but applies only to married couples or couples with children on the breakdown of their relationship.  As to the severity of the penalty, the Government concede that the applicant was ordered to be detained for 42 days, but point out that this was the maximum penalty and that it was imposed in relation to the importance of the sum due (cf. Benham v. the United Kingdom judgment, loc. cit., p. 756, para. 56).  They conclude that the balance is overwhelmingly in favour of the proceedings of the case being regarded as civil proceedings within the meaning of Article 6 para. 1 of the Convention.

65. As to whether the interest of justice required that the applicant be given free legal assistance, the Government concede that, as in the Benham case, deprivation of liberty was at stake and the test which the magistrates had to apply was complex.  However, they distinguish the present case from Benham as it appears that the applicant had sufficient means to pay for legal assistance.  The Government conclude that, even if the proceedings before the magistrates had been criminal proceedings, there was no requirement in the present case for the applicant to be provided with free legal assistance.

66. The Government further submit that the applicant did not ask for a legal representative and that he conducted his own case.

67. The Commission recalls that in the case of Benham v. the United Kingdom (loc. cit.) the Court found that proceedings in the United Kingdom before a Magistrates' Court concerning liability for non-payment of community charge involved the determination of a criminal charge within the meaning of Article 6 of the Convention.  The Commission further recalls the Court's case-law which establishes that there are three criteria to be taken into account when deciding whether a person was "charged with a criminal offence" for the purposes of Article 6.  These are the classification of the proceedings under national law, the nature of the proceedings and the nature and degree of severity of the penalty (see Ravnsborg v. Sweden judgment of 23 March 1994, Series A no. 283-B).

68. The Commission accepts the Government's position that the proceedings against the applicant in the present case were considered as civil under domestic law (see above para. 64).  It is to be noted, however, that the qualification under domestic law is of relative importance and only a starting point (see Weber v. Switzerland judgment of 22 May 1990, Series A no. 177, p. 17, para. 31).

69. It is true that, as distinguished from the proceedings for liability to pay the community charge, the proceedings in respect of a maintenance order are brought by a private person and not by a public authority.  However, the Commission does not consider this difference to be decisive.

70. Thus, as regards the nature of the proceedings, it is to be noted that the magistrates could only exercise their power to commit to prison on a finding of wilful refusal to pay or of culpable neglect.  Therefore, the proceedings involved a punitive element.  Furthermore, the applicant was committed to 42 days' imprisonment, a relatively severe penalty.

71. The Commission finds, therefore, that the proceedings against the applicant involved the determination of a "criminal charge" within the meaning of Article 6 of the Convention and that, consequently, paragraph 3 of this provision was applicable.

72. Examining the complaints under Article 6 para. 3 of the Convention, the Commission recalls that the guarantees of this provision are specific aspects of the right to a fair trial enshrined in Article 6 para. 1 of the Convention (see, Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 234-B, p. 34, para. 33, with further references).  In the present case, the Commission will consider the proceedings as a whole, with particular reference to the specific aspects raised by the applicant.

73. The Commission notes that in the space of several hours on 4 January 1994 the applicant, who had just entered the United Kingdom, was arrested at Gatwick airport, was held for a while on remand and was brought to a Magistrates' Court where he was committed to 42 days' imprisonment (see paras. 20-23).

74. The Government have not disputed the applicant's allegation that he was not shown a copy of an arrest warrant upon his arrest and that prior to the hearing at the Magistrates' Court he was not given any additional information regarding the charges against him.

75. In these circumstances the Commission does not consider it necessary to examine whether the applicant, who did not dispute the Government's assertion that he had sufficient means to pay for legal assistance, was unable to telephone anyone during the period of time between his arrest and the committal hearing and whether, consequently, there has been a violation of his right to legal representation within the meaning of Article 6 para. 3 (c) of the Convention.

76. The Commission finds in any event that in consequence of the lack of sufficient information as regards the charges against the applicant and of the short period of time between his arrest and the committal hearing he did not have "adequate time and facilities for the preparation of his defence " and that the proceedings as a whole were not "fair".

CONCLUSION

77. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 paras. 1 and 3 of the Convention.

F. Recapitulation

78. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 of the Convention (para. 52).

79. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 5 of the Convention (para. 61).

80. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 paras. 1 and 3 of the Convention (para. 77).

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber