Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26109/95

by Eusebio SANTA CRUZ RUIZ

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

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 28 April 1994 by

Eusebio SANTA CRUZ RUIZ against the United Kingdom and registered on

3 January 1995 under file No. 26109/95 ;

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

26 November 1996 and the observations in reply submitted by the

applicant on 1 February 1997 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Spanish citizen, born in 1935 and resident in

Madrid.

a. The particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows:

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.

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

...".

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.

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. He was remanded in

custody and held incommunicado in Brighton and Hove Magistrates'

Court's cells. The parties do not agree as to whether the applicant

was given the opportunity to telephone the Spanish Consulate while at

the airport.

On the same day he was brought before the Court without any

advance notice and without the assistance of either a legal

representative or an interpreter. By a decision of 4 January 1994 of

the Brighton and Hove Magistrates' Court, the applicant was committed

to 42 days' imprisonment in default of payment of a sum of money

amounting to £25,140.00 due in respect of maintenance arrears. He was

neither informed in writing of the sentence imposed on him, nor was he

given a chance to appeal.

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. On the same day, the applicant's solicitors

requested and were provided with a copy of the order, the magistrates'

written reasons for their decision and the notes of evidence given at

the hearing.

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 unnecesary as

the issue over the arrears could be fully argued in the County Court.

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.

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 owing.

The matter was instead pursued by way of an application in the country

court to challenge the 1978 maintenance order, and the arrears, in

their entirety.

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

(a) 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) a Magistrates' Court maintenance order ..."

(b) 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.

(c) 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.

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.

COMPLAINTS

1. The applicant complains under Article 5 paras. 1 and 5 of the

Convention that he was unable to lodge a "habeas corpus" application

or any other appeal challenging the lawfulness of his detention and

that he has not received any compensation so far.

2. The applicant further complains under Article 6 paras. 1

and 3 (a), (b) and (c) of the Convention that the proceedings against

him were unfair, that legal aid was not available and that he was not

legally represented before the Magistrates' Court which committed him

to prison, that the court was biased against him and that he was

totally incommunicado while in custody.

3. The applicant alleges a violation of Article 6 para. 3 (d)

and (e) insofar as he did not have the opportunity to question the

plaintiff and was without the assistance of an interpreter.

4. The applicant submits that the fact of having been arrested

without any arrest warrant was humiliating, that no criminal

proceedings nor any arrest warrant were issued against him and that he

was not informed of the reasons for his arrest; that he does not have

any effective remedy before any national authority insofar as he states

he has appealed and has not yet received an answer, all documents

having been destroyed; and that he has been a victim of discrimination

on grounds of his nationality. He invokes Articles 3, 5 paras. 2 and

4, 7, 13 and 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 April 1994 and registered

on 3 January 1995.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government.

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 Benham v. the United Kingdom before the Court.

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.

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.

THE LAW

1. The applicant complains under Article 5 paras. 1 and 5

(Art. 5-1, 5-5) of the Convention that he was unable to lodge a "habeas

corpus" application or any other appeal challenging the lawfulness of

his detention and that he has not received any compensation so far.

Article 5 (Art. 5) of the Convention provides, so far as

relevant, 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:

...

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; ...

5. 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."

The Government note that the present application bears a close

resemblance to the Benham v. the United Kingdom case (cf. Eur. Court

HR, judgment of 10 June 1996, Reports of judgments and Decisions,

1996-III, No. 10) 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 (Art. 5-1, (5-5) of the

Convention.

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.

The Government consider that a period of detention will in

principle be lawful if it is carried out pursuant to a court order, and

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. 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 to 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.

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 (Art. 5-1) of the

Convention. As a result, Article 5 para. 5 (art. 5-5) of the

Convention is not applicable

The applicant points to the fact that it was recognised by the

Court itself that the magistrates' decision was ultra vires. He states

that it was the solicitor acting in his behalf who discovered that the

magistrates had acted in excess of jurisdiction and considers that the

three circumstances of excess of jurisdiction stated in McC v. Mullan

[1985] A.C. 528 apply in this case : that the court acted without

having jurisdiction, exercising 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 (Art. 5-1) of the Convention and that

consequently, paragraph 5 of this provision was also violated, there

being no possibility to obtain compensation for the facts of having

been arrested in public, the forty-two days sentence, the moral damage,

etc.

Having examined these complaints, the Commission finds that they

raise serious questions of fact and law, the determination of which

should depend on an examination of the merits. This part of the

application cannot, therefore, be regarded as manifestly ill-founded

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

No other grounds for declaring it inadmissible have been established.

2. The applicant further complains under Article 6 paras. 1 and

3 (a), (b) and (c) (Art. 6-1, 6-3-a, 6-3-b, 6-3-c) of the Convention

that the proceedings against him were unfair, that legal aid was not

available and he was not legally represented before the Magistrates'

Court which committed him to prison, that the court was biased against

him and that he was totally incommunicado while in custody.

Article 6 (Art. 6) of the Convention provides, so far as

relevant, 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 within a reasonable time by an

independent and impartial tribunal established by law. ...

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. ..."

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 (Art. 6-1) of the Convention.

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.

The applicant states that there could be no arrest warrant if the

order had not been registered. He complains that following his arrest

he was never offered legal assistance let alone free legal assistance

and recalls that he was held incommunicado.

Having examined these complaints, the Commission finds that they

raise serious questions of fact and law, the determination of which

should depend on an examination of the merits. This part of the

application cannot, therefore, be regarded as manifestly ill-founded

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

No other grounds for declaring it inadmissible have been established.

3. The applicant alleges a violation of Article 6 para. 3 (d)

and (e) (Art. 6-3-d, 6-3-e) insofar as he was without the assistance

of an interpreter and he did not have the opportunity to question the

plaintiff.

The Government point to the fact that the applicant resided in

the United Kingdom for at least thirteen years, during which he worked

for an English company, and to the statement in the court's letter of

25 May 1994 to the effect that the applicant gave evidence to the Court

in English and was able to understand the proceedings.

The applicant states that he had not spoken English for a long

time and that, due to his hearing deficiency, he could not correctly

understand the proceedings.

In the light of all the material in its possession and, in so far

as the applicant has substantiated his complaint and the matters

complained of are within its competence, the Commission finds that they

do not disclose any appearance of a violation of the rights and

freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly

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

Convention.

4. Concerning the remainder of the applicant's complaints under

Articles 3, 5 paras. 2 and 4, 7, 13 and 14

(Art. 3, 5-2, 5-4, 7, 13, 14) of the Convention, the Commission finds

that they are unsubstantiated.

It follows that this part of the application is also manifestly

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

Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, 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 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;

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SANTA CRUZ RUIZ v. THE UNITED KINGDOM

SANTA CRUZ RUIZ v. THE UNITED KINGDOM

LEXI