Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24828/94

by A. G.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 16 March 1994 by

A. G. against the United Kingdom and registered on 5 August 1994 under

file No. 24828/94;

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

11 December 1995 and the observations in reply submitted by the

applicant on 27 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1943 and resident in

London. He is represented before the Commission by Jay Benning Levine

& Peltz, solicitors practising in London.

The facts of the case as submitted by the parties can be

summarised as follows.

a. Particular circumstances of the case

The applicant was a company director. In 1981, the company was

investigated for suspected tax fraud. The investigation, which lasted

for several years and involved enquiries in five countries, revealed

a criminal scheme for tax evasion related to transactions with scrap

gold jewellery. It was established that the applicant and other

persons failed to make appropriate returns for VAT (value added tax)

to HM Customs and Excise and thus unlawfully evaded the payment of

several millions of pounds in taxes.

At the time the investigation started the applicant lived in

Switzerland, but later returned to the United Kingdom. On 23 March

1982 he was arrested and thereafter charged with eight offenses related

to untrue declarations, tax evasion and conspiracy to defraud the

customs. He was committed for trial on 28 January 1985 as one of

several defendants, who allegedly participated in the conspiracy.

Three separate trials were ordered as the evidence as it emerged at the

committal proceedings indicated three phases of criminal activity.

The first trial, which did not involve the applicant, started in

October 1985 and was concluded in April 1986. The second trial

collapsed following the absconding of all the defendants. The third

trial involving the applicant commenced on 26 January 1987.

At the conclusion of his trial, the applicant was convicted on

two charges of conspiracy and on 17 June 1987 sentenced to four years'

imprisonment. The other two defendants in the applicant's trial were

also convicted and sentenced to three and two years' imprisonment

respectively.

On 17 June 1987 the judge also made a criminal bankruptcy order

against the applicant in the sum of £ 1,650,000.

The applicant's appeal against conviction to the Court of Appeal

was adjourned pending the outcome of an appeal in another case raising

similar points of law. This case was ultimately determined in December

1988 in the House of Lords and the applicant's appeal proceeded.

In June 1989, the applicant was released from prison having

served two years of his sentence.

The applicant's counsel proceeded to formulate grounds of appeal

in light of the House of Lords judgment. A transcript of the summing-up

at the applicant's trial was not provided until the end of 1989. The

applicant was informed in 1990 that the transcript of evidence was not

available since the shorthand writers used at the time had gone into

liquidation and the notes were no longer available.

The applicant's appeal was heard and dismissed by the Court of

Appeal on 11 June 1991.

Meanwhile, on the basis of the criminal bankruptcy order, on

1 September 1987, HM Customs and Excise had presented a bankruptcy

petition against the applicant. On 17 November 1987, at a hearing in

this matter, the applicant's solicitor requested an adjournment pending

the appeal against conviction. The bankruptcy proceedings were

adjourned for 26 January 1988. Thereafter, upon the applicant's

requests, the proceedings were adjourned again on the same ground for

29 March 1988, 8 June 1988, 4 October 1988, 31 January 1989, 11 April

1989, 20 June 1989 , 30 October 1989, 12 January 1990, 26 March 1990,

27 July 1990, 4 October 1990 and 21 December 1990.

On 21 December 1990 the applicant did not appear in court. The

case was again adjourned for 8 March 1991.

On 8 March 1991 the applicant did not appear in court. On the

same day the court granted HM Customs an order of bankruptcy against

the applicant.

The applicant did not receive notification of the order until

23 September 1993 when a copy addressed to him at a former address was

forwarded by a neighbour. It later transpired that no effort had been

made to contact the applicant between 8 March 1991 and the summer of

1993, when a new officer was appointed at the office responsible for

the serving of the bankruptcy order.

b. Relevant domestic law and practice

Criminal bankruptcy orders were provided for in sections 39-41

and schedule 2 of the Power of Criminal Courts Act 1973. Under these

provisions where a defendant was convicted of a relevant offence, the

court could make an order for an amount of money in issue in the

criminal proceedings. The effect of this order was that the offender

was treated as having committed an act of bankruptcy. A creditor could

then petition the court, in accordance with Section 264(1)(d) of the

Insolvency Act 1986, for the offender's bankruptcy pursuant to the

order.

Where a bankruptcy was made under these provisions it would

continue for a minimum of five years. After the expiry of that period,

the bankrupt could apply to the court for discharge of the order.

Section 40(2) of the 1973 Act provides that where a person

successfully appeals against his conviction of an offence by virtue of

which a criminal bankruptcy order was made, the court shall rescind the

order unless the conviction is only partly quashed and a criminal

bankruptcy order could have been made without reference to the offenses

in respect of which the conviction is quashed. However, Section 277(2)

of the Insolvency Act 1986 provides that the fact that an appeal is

pending against a conviction by virtue of which a criminal bankruptcy

order was made does not affect any proceedings on a petition under

Section 264(1)(d).

On 3 April 1989 the power of making criminal bankruptcy orders

was abolished by section 101 of the Criminal Justice Act 1988 and was

replaced by confiscation orders whose aim is to confiscate the proceeds

of a criminal offence. The revocation was without prejudice to

existing criminal bankruptcy cases.

COMPLAINTS

The applicant complains of the length of the bankruptcy

proceedings in which context he relies indirectly upon the excessive

delay in the criminal proceedings, in particular, the four years to

determine his appeal, which had an effect on the proceedings in

bankruptcy.

The applicant also complains that the bankruptcy order violates

his right to respect for his private life. In this context, he refers

to his inability to own or control property, to enter contracts or take

credit. In practice, he is rendered unemployable and the effects will

cease at the earliest in March 1996. He submits, inter alia, that the

order is not "in accordance with the law" due to the excessive length

of proceedings and that it is not "necessary", being wholly

disproportionate to any aim pursued.

The applicant further complains of disproportionate interference

with his rights under Article 1 of Protocol No. 1 to the Convention;

of discrimination under Article 14 in conjunction with Article 8 and

Article 1 of Protocol No. 1 in that he was penalised in comparison to

his co-defendants as the result of pursuing an appeal which delayed the

imposition of the bankruptcy order and prolonged its ultimate effect;

and that he is without remedy contrary to Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 March 1994 and registered

on 5 August 1994.

On 28 June 1995 the Commission decided to communicate the

application.

The Government's written observations were submitted on

11 December 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 27 March 1996, also after an

extension of the time-limit.

THE LAW

1. The applicant complains of the excessive delay in the proceedings

in his case. He invokes Article 6 para. 1 (Art. 6-1) of the Convention

which provides in its first sentence:

"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."

The Government submit that the applicant does not complain of the

length of the criminal proceedings against him. In any event, these

proceedings were very complex and involved enquiries in five countries

and the investigation of over forty businesses and thousands of bank

transactions.

In respect of the length of the bankruptcy proceedings the

Government submit that the period to be considered starts on

1 September 1987, when bankruptcy proceedings were instituted, and ends

on 8 March 1991, when a bankruptcy order was made. The Government

submit that even though this order was not served on the applicant

until September 1993, this did not mean that there was a delay in the

determination of his civil rights and obligations. It was not the

notification of the bankruptcy order which was determinative of the

applicant's status as a bankrupt but rather the making of the order by

the court. Thus, irrespective of the date of notification, the date

at which the applicant can apply for discharge of his bankruptcy is

8 March 1996, five years after the making of the order against him.

Therefore, the applicant has not suffered any prejudice as a

consequence of not becoming aware of the order before September 1993.

The Government further submit that virtually all delays between

September 1987 and March 1991 were the direct result of the applicant's

petitions for adjournment of the proceedings and that therefore they

cannot give rise to a violation, by the State, of his rights under

Article 6 (Art. 6) of the Convention.

In any event, if the delay between March 1991 and September 1993

were to be taken into account, the Government submit that the applicant

knew that a bankruptcy order would be made following the dismissal of

his appeal against conviction and that therefore it was surprising that

he failed to enquire, for nearly three years, into the status of the

bankruptcy proceedings.

The applicant replies that the relevant initial date for

determining the length of the proceedings is the date of his arrest on

criminal charges in March 1982, because the criminal proceedings

generated the bankruptcy proceedings. The period to be considered

ended on 23 September 1993, when he was informed of the bankruptcy

order, and not on 8 March 1991, when the bankruptcy order was made.

This is so because it would be absurd to accept that a determination

of civil rights is concluded where the order to that effect has not

been notified to the party concerned.

Accordingly, the applicant submits that the length of the

bankruptcy proceedings was almost 12 years - a period which was of

itself excessive and incompatible with the "reasonable time"

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

The applicant further explains in detail why he considers that

significant delays between 1982 and 1987 are imputable to the State.

Furthermore, from June 1987 until December 1988 no action was

taken by the courts in the applicant's appeal against conviction. It

was merely adjourned pending the outcome of an appeal in another

similar case. A delay in the criminal proceedings between December

1988 and June 1991 was also imputable to the State as it was caused by

problems related to the unavailability of certain transcripts.

The applicant submits that he cannot be blamed for having

requested the adjournment of the bankruptcy proceedings pending the

outcome of his appeal against conviction. It was legitimate to do so

as the outcome of the appeal was important for the bankruptcy issue.

Also, the applicant asserts that the delay in the serving of the

bankruptcy order, between March 1991 and September 1993 is clearly the

responsibility of the State, no reasonable explanation having been

provided. The Government's argument that the applicant should have

enquired himself as regards the status of the proceedings is, in the

applicant's view, inconsistent with the principles of law and

procedure.

The Commission recalls that the reasonableness of the length of

proceedings is to be assessed in light of the particular circumstances

of the case, regard being had to the criteria laid down in the Court's

case-law, in particular the complexity of the case, the applicant's

conduct and that of the competent authorities (see eg. Eur. Court HR,

Kemmache v. France judgment of 27 November 1991, Series A no. 218,

p. 27, para. 60).

Insofar as the applicant may be understood as complaining of the

length of the criminal proceedings against him, the Commission finds

that he has submitted his application to the Commission more than six

months after these proceedings were concluded in 1991 and that

therefore he has not complied with the requirements of Article 26

(Art. 26) of the Convention.

As regards the bankruptcy proceedings the Commission notes that

they did not commence in 1982, as claimed by the applicant, but in

1987, when a criminal bankruptcy order was issued and when HM Customs

instituted bankruptcy proceedings. It was then that the applicant's

position can be said to have been directly affected by the threat of

bankruptcy. In view of its final findings in the present case the

Commission need not decide whether the initial moment to be taken into

account should be 17 June 1987, when the criminal bankruptcy order was

made, or 1 September 1987 when HM Customs instituted bankruptcy

proceedings.

As the applicant did not discover that he had been made bankrupt

until 23 September 1993, the relevant period is therefore 6 years and

several weeks.

Examining the reasons which caused this delay, the Commission

notes that the applicant requested himself the adjournments between

November 1987 and December 1990, pending the hearing of his appeal

against conviction. It is true that the outcome of the appeal could

have an important impact on the bankruptcy proceedings, as provided for

under Section 40(2) of the Power of Criminal Court Act 1973. However,

under Section 277(2) of the Insolvency Act 1986 the bankruptcy court

was not bound to await the outcome of the criminal proceedings. In

these circumstances the adjournments were not indispensable, but they

were, at the same time, in the applicant's interest. The court gave

the applicant a chance to avoid the effects of a bankruptcy order, if

his appeal against conviction would have been successful. Therefore,

the Commission finds that the delay of three years between November

1987 and December 1990 cannot engage the responsibility of the State.

While there was an apparent lapse of time between the issuing of

the bankruptcy order against the applicant on 1 March 1991 and his

gaining knowledge of it on 23 September 1993, it does not appear that

the applicant was in any way prejudiced thereby. Indeed, he was

completely unaware of its existence. Moreover, irrespective of the

delay in the notification, the applicant was in a position to apply for

discharge of his bankruptcy on 8 March 1996, five years after the

making of the order against him.

In these circumstances, the Commission finds that the facts of

the case do not disclose an appearance of a breach of the applicant's

right to a trial within a reasonable time within the meaning of

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

It follows that this complaint must be rejected as manifestly

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

Convention.

2. The applicant also complains of the effect on his private life

and the enjoyment of his possessions of the bankruptcy. He complains

of discrimination as regards the other co-defendants in the proceedings

and the lack of any effective remedy. He invokes Articles 8, 13 and 14

(Art. 8, 13, 14) of the Convention and Article 1 of Protocol No. 1

(P1-1).

The Commission has examined the applicant's complaints as they

have been submitted by him. However, to the extent that they fall

within the scope of the provisions invoked and to the extent that they

have been substantiated, the Commission does not find that they

disclose any appearance of a violation of the rights and freedoms

guaranteed under the Convention and its protocols.

It follows that this part of the application must be rejected as

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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A.G. v. THE UNITED KINGDOM

A.G. v. THE UNITED KINGDOM

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