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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

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TOLSTOY-MILOSLAVSKY v. THE UNITED KINGDOM

TOLSTOY-MILOSLAVSKY v. THE UNITED KINGDOM

LEXI