Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26918/95

by John PRATT

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 December 1994

by John PRATT against the United Kingdom and registered on

29 March 1995 under file No. 26918/95;

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 facts of the case as submitted by the applicant may be

summarised as follows.

The applicant is a United Kingdom national born in 1975 and

residing in Glasgow. Before the Commission he is represented by John

Carroll and Company, solicitors of Glasgow.

On 11 April 1994, following his conviction by Glasgow Sheriff

Court on charges of robbery and contravention of bail, the applicant

was sentenced to 60 days' imprisonment.

On the same day he submitted to the Scottish Legal Aid Board an

application for legal aid to appeal against the conviction. On

14 April 1994 legal aid was granted for the preparation and the lodging

of an appeal and of a petition for release on bail.

The applicant appealed and on 15 April 1994 he was released on

bail pending the outcome of the appeal.

On an unspecified date the applicant submitted to the Legal Aid

Board an application for legal aid to cover the hearing of the appeal.

On 30 September 1994 this was refused.

On 27 September 1994 the applicant's solicitors in Glasgow became

aware of the fact that the hearing of the appeal at the High Court of

Justiciary in Edinburgh had been scheduled for 4 October 1994. On

30 September 1990 they met the applicant and informed him of the date

and the place of the hearing. Later that day the solicitors were

informed of the refusal of legal aid. Thereupon, they contacted the

applicant again and arranged a meeting on 3 October 1994 to give him

instructions and a written note to be read by him before the Court.

However, the applicant failed to keep his appointment with the

solicitors on 3 October 1994 and did not appear at the Court in

Edinburgh on 4 October 1994.

On 4 October 1994 a solicitor from Edinburgh, who had been asked

by the applicant's Glasgow solicitors to assist him informally while

in Edinburgh, appeared before the Court and explained that the refusal

of legal aid was under review and asked that the appeal be continued

at a later date. The Court noted that the applicant was not present

and that it lacked information as to whether the applicant had been

given due notice of the hearing date. For these reasons the Court

decided to continue the hearing on 7 October 1994.

The applicant's solicitors contacted him in the evening of

4 October 1994 and informed him of the new hearing date. As regards

his failure to appear before the Court earlier that day the applicant

explained that he had not had the money to pay his fare from Glasgow

to Edinburgh, that his home telephone had not been working and that he

had not had the money even for a telephone call to his solicitors.

He had spent his weekly £ 31 of income support just before 30 September

1994, when he had been informed about the hearing.

On or about 6 October 1994 the Legal Aid Board revised its

previous decision and granted legal aid for the hearing of the appeal

in the applicant's case.

On 7 October 1994 the applicant and his solicitor appeared before

the Court in Edinburgh. After examining the explanations given as to

whether the applicant had been informed of the initial hearing date and

as regards the reasons for his failure to appear, the Court found that

there was "want of insistence" on the part of the applicant and refused

to proceed with the appeal.

This decision was based on the legal requirement that "a person

who is granted interim liberation pending the hearing of his appeal

must appear at every hearing of the appeal of which he receives due

notice". In cases of failure to fulfil this legal condition without

a satisfactory excuse, the course to be taken was to refuse the appeal

for want of insistence. The Court noted inter alia that the applicant

had not mentioned his financial difficulties to his solicitors on

30 September 1994 and had not contacted them at any later stage. The

Court assessed the explanation for the applicant's failure to appear

as unsatisfactory and stated that, had the Court known, on 4 October

1994, the relevant circumstances, it would have had to refuse the

appeal. This was, therefore, the only possible decision.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that he was unlawfully and arbitrarily denied a fair hearing of his

appeal against conviction. In fact the applicant did have a reasonable

excuse for his failure to appear before the Court on 4 October 1994.

Moreover, under the relevant provisions the Court had to allow the

hearing of the appeal when a "cause [was] shown" for the applicant's

failure to attend. Thus, in the applicant's opinion, proving the

reasonableness of the excuse was not even necessary.

The applicant also complains under Article 14 in conjunction with

Article 6 of the alleged discrimination on the basis of wealth. Thus,

had he been able to pay his travel expenses, he would have had a

hearing. As the Court failed to take into account his financial

difficulties, the applicant was denied a hearing because he was poor.

THE LAW

The applicant complains under Article 6 (Art. 6) taken alone and

in conjunction with Article 14 (Art. 6+14) of the Convention that he

was denied a fair hearing of his appeal unlawfully, arbitrarily and

because he was poor.

These provisions, insofar as relevant, provide as follows:

Article 6 (Art. 6)

"1. In the determination of ... any criminal charge

against him, everyone is entitled to a fair ... hearing ..."

Article 14 (Art. 14)

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as ... property ... or other status."

The Commission recalls the Convention organs' case-law according

to which Article 6 (Art. 6) of the Convention does not as such

guarantee a right to appeal but if such a right is provided under

domestic law, the requirements of Article 6 (Art. 6) must be respected

in the appeal proceedings. However, Article 6 (Art. 6) does not

prevent Contracting States from regulating access to appeal

jurisdictions in order to ensure the proper administration of justice.

Nonetheless, the limitations applied must not restrict or reduce the

access left to the individual in such a way that the very essence of

the right is impaired (Appl. No. 16598/90, Dec. 11.12.90, D.R. 66, p.

260; mutatis mutandis Appl. No. 12275/86, Dec. 2.7.91, D.R. 70, p. 47;

Eur. Court H.R., Philis judgment of 27 August 1991, Series A No. 209,

p. 20 para. 59).

A complaint of an interference with the rights under Article 14

in conjunction with Article 6 para. 1 (Art. 14+6-1) of the Convention

concerning access to court must be examined in the light of the

particular circumstances of the case in point (Appl. No. 7973/77, D.R.

17, p. 74; Appl. No. 13012/87, Dec. 4.9.89, D.R. 62, p. 255).

The Commission notes that the High Court of Justiciary in the

applicant's case refused to hear his appeal as he had failed to meet

a procedural requirement, namely to appear in person. The High Court

of Justiciary inquired into the reasons for the applicant's failure to

attend and did not accept his contention that this had been impossible

for him, through no fault of his own.

Furthermore, the applicant has not shown that these findings were

arbitrary or discriminatory. The Court applied the relevant legal

rules and examined the submissions of the applicant and his lawyers as

regards the particular circumstances.

Moreover, the Commission cannot accept that the applicant had

been unable to personally call or arrange a telephone call to his

solicitors to inform them of his financial difficulties.

Insofar as the applicant may be understood as alleging that the

initial refusal of legal aid for the hearing of his appeal contributed

to unfairness in the appeal proceedings, the Commission notes that it

was the applicant's absence that ensured the dismissal of his appeal,

and not the lack of legal representation to argue the substantive

grounds for that appeal.

In view of these facts the Commission is satisfied that the

applicant has not been denied a fair hearing contrary to Article 6

para. 1 (Art. 6-1) taken either alone or in conjunction with Article

14 (Art. 6-1+14) of the Convention.

It follows that 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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PRATT v. THE UNITED KINGDOM

PRATT v. THE UNITED KINGDOM

LEXI