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AS TO THE ADMISSIBILITY OF

Application No. 30234/96

by Roger EVEREST

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. 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 2 February 1996

by Roger EVEREST against the United Kingdom and registered on

16 February 1996 under file No. 30234/96;

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 British national, born in 1939. He is a

barrister and resides in Mid-Glamorgan in Wales. In the proceedings

before the Commission he is represented by Mr. J. Mackenzie, a

solicitor practising in Southall in England.

The facts, as they have been submitted by the applicant, can be

summarised as follows:

In November 1990 the applicant and his wife were ordered by the

High Court of Justice to pay their daughter's school £10,000 for

arrears of fees. The applicant and his wife gave an undertaking to the

court to pay £500 per month.

As the applicant did not make the payments required, the school

lodged a complaint against him to the Bar Council. The Professional

Conduct Committee of the Bar decided to bring disciplinary proceedings

against the applicant, inter alia, for discreditable conduct in that

he had failed to comply with the undertaking he had given to the court

to pay the school fees and for professional misconduct in that he had

failed to provide comments on the complaint lodged against him by the

school, although the Bar Council had required him to do so.

The applicant appeared before a Disciplinary Tribunal, composed

of a judge, three barristers and Mr G, a lay member of the Professional

Conduct Committee of the Bar. The applicant had objected to the

participation of Mr G, inter alia, on the ground that G was a member

of the body which had decided to bring disciplinary proceedings against

him. However, the President of the Bar Council had refused to exercise

his discretion under the Disciplinary Tribunal Regulations 1990 and

nominate a substitute member of the Tribunal. On 26 October 1994 the

Tribunal found the applicant guilty of the two above-mentioned charges

and a third charge and suspended him from practising as a barrister for

twelve months.

On 6 January 1995 the applicant appealed against the decision of

the Disciplinary Tribunal to the Visitors to the Inns of Court. On

4 May 1995 a judge, sitting as the Visitor to the Inns of Court,

allowed the appeal in respect of the third charge but upheld the two

above-mentioned charges. The penalty remained unchanged.

The applicant applied to the Divisional Court for certiorari to

quash the decision of 4 May 1995 relying on the fact that G was a

member of the Professional Conduct Committee from which he received a

fee. On 10 July 1995 a judge refused the application. The applicant

renewed his application to the full court. On 26 July 1995 the

Divisional Court, considering that G had been entirely impartial and

the Tribunal had been entirely fair, rejected the application. The

applicant appealed against the decision of the Divisional Court to the

Court of Appeal, which rejected his appeal on 2 November 1995.

COMPLAINTS

The applicant complains under Article 6 of the Convention about

the institution of disciplinary proceedings against him to enforce an

undertaking he had given to a court not in his professional capacity

but in his capacity as a litigant. He stresses that no proceedings for

contempt of court had been instituted against him and submits that the

infliction of sanctions by the Disciplinary Tribunal had the effect of

operating a parallel system of justice to deal with his indebtedness

applying different and more draconian sanctions than those applied by

the normal system of civil justice. He also complains that his civil

rights were not determined by an impartial tribunal, because a member

of the Professional Conduct Committee sat in the Disciplinary Tribunal

that tried him.

THE LAW

The applicant complains of a violation of Article 6 (Art. 6) of

the Convention in that disciplinary proceedings were instituted against

him to deal with a civil matter and in that the Disciplinary Tribunal

of the Bar was not impartial.

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention guarantees the right to a fair hearing by an impartial

tribunal in the determination of one's civil rights and obligations.

Insofar as the applicant complains that the very fact that

disciplinary proceedings were instituted against him amounts to a

violation of the Convention, the Commission considers that the

Contracting States remain free to apply disciplinary law to an act

which is not carried out in the normal exercise of one of the rights

protected under the Convention, provided that the disciplinary

proceedings comply with the relevant requirements of Article 6

(Art. 6) of the Convention if they involve a determination of civil

rights and obligations or of a criminal charge within the meaning of

that provision.

The Commission notes that the disciplinary proceedings complained

of resulted in the applicant's being suspended from practising as a

barrister for twelve months. It follows that they involved a

determination of civil rights and obligations and, as a result,

Article 6 para. 1 (Art. 6-1) of the Convention was applicable (see,

mutatis mutandis, No. 12502/86, Dec. 9.3.88, D.R. 55, p. 251).

The Commission also recalls that, according to the case-law of

the Court, disciplinary matters involving the determination of civil

rights and obligations may be dealt with by the jurisdictional organs

of professional associations, provided that either these organs comply

with Article 6 para. 1 (Art. 6-1) of the Convention themselves or they

are subject to subsequent control by a judicial body with full

jurisdiction providing the necessary guarantees (Eur. Court HR, Albert

and Le Compte v. Belgium judgment of 10 February 1983, Series A no 58,

p. 16, para. 29).

In the light of this case-law, the Commission considers that,

since the applicant's case has also been considered by on appeal by the

Visitors, it is not necessary to examine the implications, if any,

which the participation of G might have had for the impartiality of the

Disciplinary Tribunal. The Commission recalls in this connection that,

as already established in its case-law, the Visitors to the Inns of

Court act as an appeal tribunal with full jurisdiction on all questions

of fact and law, including questions relating to sentence. In this

respect, therefore, the Visitors satisfy the requirement as to the

scope of jurisdiction considered essential under Article 6 para. 1

(Art. 6-1) of the Convention (No. 12502/86, loc. cit.). Moreover, the

applicant has not questioned the impartiality of the judge who sat, as

Visitor to the Inns of Court, to examine his appeal against the

decision of the Disciplinary Tribunal.

In the light of all the above, the Commission considers that no

appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention is disclosed. It follows that the applicant's complaints are

inadmissible, being 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 APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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EVEREST v. THE UNITED KINGDOM

EVEREST v. THE UNITED KINGDOM

LEXI