AS TO THE ADMISSIBILITY OF

                      Application No. 26249/95

                      by John William DICK

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 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 5 July 1994 by

John William DICK against the United Kingdom and registered on

19 January 1995 under file No. 26249/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on 30 May

     1996 and the observations in reply submitted by the applicant on

     29 July 1996, and the Government's response thereto of

     14 February 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1938, is a Canadian citizen, with a

permanent address in Jersey, the Channel Islands, and currently lives

in Germany.  He is represented by Mr George Devlin, who describes

himself as a Human Rights Consultant and is resident in Jersey.  The

facts of the case may be summarised as follows:

A.   Particular circumstances of the case

a)   Proceedings in California and Colorado, United States of America.

     In February 1982, the applicant and X, were married and in April

1987 they separated.  X commenced divorce proceedings in California

("the California proceedings") and in Colorado ("the Colorado

proceedings").  During the course of the California proceedings, X

applied for temporary support or maintenance from the applicant.  On

19 December 1990, a temporary support order was granted ("the 1990

Order") under which the applicant was required to pay X a substantial

monthly sum.  The court's decision was to some extent dependent on

evidence given by Y, a friend of X, that he did not intend to give her

any further financial assistance.

     The applicant's appeal against the 1990 Order to the Court of

Appeal of the State of California and his petition for review to the

Supreme Court of the State of California were refused on 26 April 1993

and 26 August 1993 respectively.

b)   The Jersey proceedings

     On 14 September 1993 X applied, in accordance with the Loi sur

les saisies en vertu d'ordres provisoires (1862), to the Royal Court

of the Island of Jersey for an Order of Justice and a "saisie" of the

applicant (arrest and incarceration order), claiming that the

accumulated debt owed to her by the applicant under the 1990 Order was

$3,222,782.06.

     On 15 September 1993, the Royal Court of the Island of Jersey

(Samedi Division) granted X, by an Order of Justice, a "saisie" of the

applicant ("the saisie") that provided that the applicant should be

arrested and incarcerated at the Debtor's prison at La Moye until the

earliest of the following:

     -     $2,000,000 caution was paid; or

     -     The Plaintiff's claim together with the Plaintiff's

           costs were paid in full; or

     -     Until further order of the Court.

     It was further ordered that the applicant be convened before the

court so that the court could order payment of the debt.

     The applicant was outside the jurisdiction at the time that the

Order of Justice was made,  and was not given notice of X's application

for the order.

     The applicant, who had lived in Germany for several years,

arrived in Jersey for a visit on 21 November 1993.  On 29 November 1993

he was arrested and served with a summons requiring him to appear

before the Royal Court of Jersey on 10 December 1993 in order to

witness confirmation of the Order of Justice.  He was taken to H.M

Prison La Moye immediately, his request to collect his insulin from his

home in Jersey being refused despite his need to inject himself seven

times a day. He was brought before the court on 3 December 1993, when

the court ordered his continued detention pending payment of the debt

owed to X or of a security of $2,000,000 or further order of the court.

     On 10 December 1993, the applicant was again brought before the

court, which ordered that the applicant should remain in prison until

he had paid X the sum of $3,222,782 plus costs or until he had

completed one year and one day in prison, whichever was the earlier.

     The applicant's application for release (by summons filed on

14 December 1993) was heard on 21 December 1993.  The court varied the

terms of the saisie on medical grounds, ordering that the applicant

should be released from the Debtor's prison on condition that he:

           (a)   first handed over his passports to the Viscount;

           (b)   resided at his home and did not leave the island

                 without permission of the Court;

           (c)   submitted to a medical examination by Doctor

                 William Richard Ginks (and that if he wished to

                 receive treatment outside the jurisdiction, he

                 should first apply to the Court for permission

                 to do so).

     X appealed against the Order and applied for the applicant to be

re-arrested and incarcerated in a Debtor's prison under the terms of

the Order of Justice of 15 September 1993, claiming that the court had

no power to order the applicant's release.

     By summons filed on 20 December 1993, to be heard on

26 January 1994, X applied for final judgment against the applicant for

the amount claimed in the Order of Justice plus costs ("application for

summary judgment").

     During the hearing of the application for summary judgment,

evidence of a deposition sworn on 20 December 1992 in the course of the

Colorado proceedings (which followed the California proceedings), was

adduced by the applicant on affidavit to show that the 1990 Order had

been obtained on the basis of fraud, in particular to show that Y had

not ceased to give X financial assistance nor had he intended to do so,

as had been claimed in the course of the California proceedings.  The

applicant submitted that the 1990 Order would not therefore be

enforceable in either California or Jersey.  In light of the above, on

11 February 1994 the court dismissed X's application for summary

judgment and the granted the applicant unconditional leave to defend

the action.  The applicant remained subject to the saisie, as varied

on 21 December 1993.

     By a summons filed on 22 March 1994, the applicant applied for

the conditions upon which he was released from custody on

21 December 1993, to be amended or lifted.  On 29 April 1994, the

saisie was lifted, on the basis that it was arguable that the 1990

Order was not enforceable in that it had been obtained on the basis of

fraud.  The applicant's passport was returned and he was able to rejoin

his companion in Germany.

B.   Relevant domestic law

     The "Ordre Provisoire" (Provisional Order) is, according to

Jersey law, a civil law remedy, employed by the creditor for the

summary recovery of a liquidated debt. The "Ordre Provisoire"

authorises the plaintiff to effect a "saisie" upon the debtor. The

proceedings in the case commence by an Order of Justice, which is a

statement of the essentials of the plaintiff`s claim, drafted by the

counsel for the plaintiff. The Order of Justice sets out the relief

sought and also specifies any interim orders sought such as an "Ordre

Provisoire". It is presented to the Bailiff, and if he signs it becomes

an Order of the Court insofar as there is any interim relief sought.

It is served on the defendant, who is notified also of the date of the

first Court hearing. A person, who is "expatriable" (i.e a person, who

does not own immovable property in the Island, which is available for

his creditors) may be arrested in person if the Bailiff has granted a

"saisie".

     Once the initial "Ordre provisoire" has been effected, the matter

must be brought before the Royal Court at the next available sitting.

If the claim is not admitted, the case will be placed on the Pending

list (as in this case). When a matter has been placed on the Pending

list, the plaintiff may, on the ground that the defendant has no

defence to the claim, apply to the Court for judgment against the

defendant. On application the Court will consider whether the "Ordre

Provisoire" should be maintained.

     In connection with the recognition and enforcement of the foreign

judgment, the Jersey court does not consider or investigate its merits.

It merely considers whether the foreign court had jurisdiction

according to the English and Jersey rules of the conflict of laws. The

Jersey court will consider whether the foreign judgment is impeachable

on any of the three grounds only, that is if the judgment has been

obtained by fraud, if enforcement would be contrary to public policy

or if the proceedings in which the judgment was obtained were contrary

to natural justice. The burden of proof lies on the party who seeks to

impeach it.

COMPLAINT

     The applicant complains that the ex parte nature of the Order of

Justice of 15 September 1993 violated Article 6 paras. 1, 2 and 3 (b)

and (d) of the Convention. He claims that detention proceedings,

beginning with the ex parte order of arrest and detention, violated his

right to a fair hearing. He alleges that detention in itself as well

as a requirement to pay to the court a caution or debt in full was a

determination of civil rights and obligations. As he also sees the

detention proceedings as criminal in nature, he claims he did not have

adequate facilities to prepare his defence and examine witnesses

because he was not present when the ex parte order took place and that

he was not able to communicate with his American lawyers directly.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 5 July 1994 and registered on

19 January 1995.

     On 28 February 1996 the Commission decided to declare

inadmissible the applicant`s complaints under Articles 5 and 8 of the

Convention, and to communicate the applicant`s complaint under

Article 6 of the Convention concerning the ex parte nature of the Order

of Justice of 15 September 1993.

     The Government's written observations were submitted on 30 May

1996, after an extension of the time-limit fixed for that purpose.  The

applicant replied on 29 July 1996, also after an extension of the time-

limit. The Government submitted further observations on the points

raised by the applicant on 14 February 1997.

THE LAW

     The applicant complains that the ex parte nature of the Order of

Justice of 15 September 1993 violated his right to a fair and public

hearing, as required by Article 6 para. 1 (Art. 6-1) of the Convention.

     Article 6 (Art. 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 and public hearing..."

     The Government submit that the proceedings in Jersey which began

with the Order of Justice of 15 September 1993 did not determine the

applicant`s "civil rights and obligations" within the meaning of

Article 6 (Art. 6) of the Convention. They claim that that exercise was

undertaken by the Los Angeles court which created the legal obligation

on the part of the applicant to pay a sum of money to his wife. The

sole question in Jersey was whether that judgment could be enforced in

Jersey. The applicant appeared in California to contest the Californian

proceedings and accordingly, the Los Angeles Court undoubtedly had

jurisdiction. The "Ordre Provisoire" was merely a provisional step to

assist in the ultimate enforcement of any judgment which might be

pronounced by the court in the future. The applicant could therefore

obtain release from the "saisie" by providing security in a stipulated

sum. Alternatively, he could apply for a variation or discharge of the

"saisie" at any stage of the proceedings (which he did after some

delay).

     The Government also submit that the application should be

rejected for non-exhaustion of domestic remedies. The Government claim

that as it transpired that the Californian order of 1990 had been

obtained by fraud, the applicant would be entitled to claim damages in

tort for abuse of the process of the court.

     Alternatively the Government submit that the applicant`s

complaint has been submitted out of time as he was released from prison

on 21 December 1993, which was therefore the date of the last alleged

determination of rights with respect to the ex parte detention.

21 December 1993 would therefore be the latest date from which six

months are to be counted.

     If the Commission were to find that Article 6 (Art. 6) does apply

in this case, the Government submit that the proceedings were in any

event fair. The fairness of proceedings, which have the characteristics

of an interim injunction, is ensured by the party against whom an ex

parte order is made having an immediate opportunity to argue that the

order should be revoked or varied. The applicant, acting through

counsel, chose not to make any application for his release on 3

December or 10 December, but only by summons dated 14 December which

came before the Court on 21 December 1993, when he was released from

prison on the ground of ill-health.

     The Government also observe that the applicant had full access

to his Jersey lawyer and could have instructed his American lawyers

through him, and could have obtained advice from them as to possible

defences to the proceedings in Jersey. The applicant offers no

explanation as to why he had taken no steps to have the Californian

order set aside or to raise the matter of alleged fraud in the appeal

against that order. The applicant had for nearly two years failed to

comply with the Californian order yet he did not know on what basis he

might be entitled to resist payment. Matters taken into consideration

by the Jersey Court would have included the apparent ability of the

applicant to pay the sum ordered by the Los Angeles court and his

apparent unwillingness to do so.

     The applicant submits that the proceedings in Jersey which began

with the Order of Justice of 15 September 1993 did determine his "civil

rights and obligations" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. He contends that the ex parte order by

virtue of its terms and nature involved new and separate determinations

of civil rights and obligations independent of those already

adjudicated upon by the California Order. The applicant claims that the

ex parte order of 15 September 1993 was a provisional finding against

him and "determined" that he should be arrested and incarcerated in

prison. He is also of the opinion that the continuing "saisie" of the

applicant on 3 December and 10 December 1993 permitted the Royal Court

to "determine" whether the applicant should continue to be incarcerated

in prison. Imposing conditions not to leave the island of Jersey and

handing over his passport also "determined" that the movement of the

applicant should be curtailed. The applicant disputes the Government`s

statement that the proceedings only had the characteristics of an

interim injunction. He underlines that there is a vast difference

between ordering the assets of a defendant to be restrained and

ordering the arrest of the defendant. He claims that the Order of

Justice determined his right to liberty.

     The applicant also points out that he was ordered to pay either

the caution or the plaintiff`s claim in full, therefore the order was

intended to operate as an Order as to the relief sought and not, as

alleged by the Government, as an interim order only. The true effect

of the ex parte order was therefore a "determination" by the Bailiff

that the applicant was a "debtor" by virtue of his non-compliance with

the California Order. Whenever an "Ordre Provisoire" incorporates a

caution to be paid, it follows that "civil rights and obligations" have

been determined.

     As to the fairness of proceedings, the applicant complains about

not receiving any notice that a hearing would take place on

15 September 1993 and about not being able to attend the hearing. He

also claims that he was not able personally to instruct and fully

discuss his case with his Colorado and California lawyers which as a

consequence meant that the only option open to the applicant at the

time was to agree to remain in custody whilst the Jersey lawyers

researched the case-law and gathered sufficient evidence to lodge an

application for his release. Only in January 1994, that is after his

release on medical grounds, did the lawyers of Jersey and Colorado find

out that the line of defence open to the applicant was to challenge the

Jersey proceedings on the grounds that the 1990 California Order had

been obtained by fraud. The applicant also notes that the plaintiff`s

lawyer had nine months to prepare the case for the Jersey proceedings

while he only had a very short time to prepare his defence.

     The applicant also claims that the Jersey court failed to

consider whether the foreign judgment was obtained by fraud, this being

one of the reasons for impeachment of the judgment. He claims the

Provisional Order has been made only on the basis of the affidavits of

the Plaintiff, her Colorado, Jersey and Californian lawyers. As the

affidavits contained no such admission or denial, the Order of Justice

of 15 September was made without any consideration of the possibility

that the California Order may have been obtained by fraud.

     The Commission notes that no allegations of criminal behaviour

were made against the applicant at any stage.  The proceedings against

him did not, therefore determine a "criminal charge" within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention.  Article 6 para. 2

and Article 6 para. 3 (Art. 6-2, 6-3) of the Convention are therefore

of no relevance in the present case.

     The Commission notes that the applicant complains only about the

proceedings following the ex parte order of 15 September 1993, namely

his arrest and detention. This part of the proceedings continued on an

inter partes basis on 3 December and 10 December and ended on

21 December 1993, when the applicant was released. The Commission also

notes that the saisie ordered in September 1993 was lifted on 29 April

1994, and the applicant returned to Germany.  The outcome of the

proceedings was therefore ultimately in the applicant's favour, such

that there may be a question as to whether the applicant may at all

claim to be a "victim" of a violation of Article 6 (Art. 6), within the

meaning of Article 25 (Art. 25) of the Convention. The Commission need

not, however, determine this question as the application is in any

event manifestly ill-founded for the following reasons.

     The Commission recalls that where interim measures are requested

in the course of proceedings which determine civil rights, the

proceedings by which the interim measures are ordered do not,

themselves, determine civil rights or obligations (see, for example,

No. 12446/86, Alsterlund v. Sweden, Dec. 5.5.88, D.R. 56, p. 229, with

further references at p. 232).  The ex parte proceedings as such cannot

therefore be said to have determined the applicant's civil rights or

obligation.

     Moreover, even if the ex parte proceedings as such were capable

of determining civil rights or obligations, those proceedings consisted

of no more than the grant of the Order of Justice on 15 September 1993

and its service on the applicant (and his immediate arrest) on

29 November 1993.  Once the applicant was put on notice of the

proceedings, they were no longer ex parte.  It follows that - to the

extent that the Commission is looking at the ex parte proceedings as

an isolated part of the overall proceedings - the six months period

provided for in Article 26 (Art. 26) of the Convention runs from that

date or, at the latest, from 21 December 1993, which was the date of

the applicant's release from prison and the end of the immediate

effects of the ex parte order.  Thus the Commission would in any event

be prevented from considering the ex parte proceedings as such by the

operation of the six months rule contained in Article 26 (Art. 26) of

the Convention.

     Taking the enforcement proceedings as a whole, the Commission

recalls that it has previously held that enforcement proceedings will

not generally determine civil rights and obligations unless they are

capable of giving rise to a fresh determination of substantive matters

(see No. 13800/88, Dec. 1.7.91, D.R. 71, p. 94). Since that decision,

the European Court of Human Rights has held that enforcement may fall

to be considered in the context of Article 6 (Art. 6) of the Convention

(see Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, No.

33, para. 40) and that the determination of costs, too, may fall within

the ambit of Article 6 (Art. 6) of the Convention (see Robins v. the

United Kingdom judgment of 23 September 1997, to be published in

Reports of Judgments and Decisions for 1997, para. 29). In the present

case, the principal determination of civil rights and obligations was

clearly the proceedings before the Californian courts.  If the

proceedings before the Jersey courts determined civil rights and

obligations, that determination must have been wholly independent of

the initial, Californian proceedings.

     The applicant claims that the Jersey proceedings did give rise

to new legal issues, independent of those already adjudicated upon by

the California order.  The Government do not agree.

     The Commission can, however, leave also this question open

because, even assuming that Article 6 (Art. 6) applied to the Jersey

proceedings as a whole, this complaint is in any event manifestly ill-

founded.

     The Commission would first recall that in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set out

in the Convention.  The Commission refers, on this point, to its

constant case-law (see No. 5258/71, X v. Sweden, Dec. 8.2.73,

Collection 43, pp. 71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79,

D.R. 18, pp. 31, 45; No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93,

D.R. 74, p. 234).

     Whilst the draconian interim measure which was ordered against

the applicant may well have caused him considerable inconvenience, in

the context of the Jersey proceedings as a whole, the Commission can

see no unfairness in these proceedings. In particular, there is no

reason why the institution of proceedings on an ex parte basis should

have any impact on the fairness of the proceedings as a whole, provided

that full procedural guarantees were available when the proceedings

were inter partes. In the present case, once the proceedings were inter

partes, the applicant had several hearings, was represented by a lawyer

and the case finally ended in his favour.

     It follows that the remainder of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber