Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14782/89

by Avrom SHINE

against the United Kingdom

The European Commission of Human Rights sitting in private

on 10 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 November 1988

by Avrom Shine against the United Kingdom and registered on 15 March 1989

under file No. 14782/88;

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 citizen born in 1945. He lives in

London. He is a music promoter and was made bankrupt in 1980. He is

represented before the Commission by Mr. S. Grosz of Messrs. Bindmans,

solicitors, London. The facts of the case may be summarised as

follows.

The applicant was made bankrupt on the petition of a recording

studio following his inability to meet a personal guarantee for

payment for the use of the studio by the applicant's company, Age of

Time Records Ltd. ("AOT")

In subsequent proceedings, the studio was ordered to hand over

the master tapes of the recording to AOT and the applicant, apparently

as director of AOT, undertook to exploit the music.

After the applicant's public examination had been concluded on

31 October 1980, it appeared to the official receiver that certain

monies and transactions had not been previously disclosed. After the

applicant failed to account for these matters, the official receiver

applied for the public examination to be re-opened. Notice was given

to the address for service given by the applicant. On 25 October

1982, the Court, in the absence of the applicant, ordered that the

public examination should be re-opened and directed that the

re-opened examination be heard on 1 December 1982. The applicant

failed to attend, either then or at the adjourned hearing on 2

February 1983. The public examination was adjourned sine die.

On 1 January 1986 the official receiver applied to the court

for the applicant's discharge to be considered, as he was required to

do under the the provisions of Section 8 of the Insolvency Act 1976

("the 1976 Act"). The official receiver opposed discharge. The court

refused the applicant's discharge.

In 1987 the applicant made an application for a number of

orders, including an application:

"4) For an Order that the Bankrupt be discharged from Bankruptcy

forthwith."

The case came before Mr. Registrar Dewhurst in chambers on 18

November 1987. The Registrar's notes of the hearing are headed

"Application for Directions". In dealing with paragraph 4 the

Registrar wrote the word "misconceived". The application was struck

out as a whole as being "hopelessly misconceived, if not scurrilous in

parts".

The applicant appealed to the Court of Appeal on the ground

that the order was wrong. In his affidavit in support of his notice

of appeal the applicant deposed, inter alia, as follows:

" ...

2. On the 18 November 1987 Mr. Registrar Dewhurst

refused my applications. I appeal against his said

refusal to make the orders which were just and reasonable

for him to make.

...

10. I aver that the learned Registrar failed to make the

Orders that he should justly and reasonably have made in all

the circumstances.

..."

The appeal was listed before the Court of Appeal to see

whether in fact any requirement for leave to appeal existed. Mr.

Justice Woolf found as follows:

"With regard to bankruptcy proceedings there has been some

doubt as to whether the appeals from orders made are ones

which require leave .... This in turn involves a

consideration as to whether such appeals are in respect of

interlocutory orders or final orders .... In determining

whether or not an order is an interlocutory order or a final

order, you have to consider what will be the outcome as to

the continuation of the proceedings, first of all, if the

application in respect of which the order is made is

successful and, secondly, if the application is

unsuccessful. It will only be final if, whatever the

outcome, it finally determines the proceedings. This

position applies in bankruptcy.

In the present application, among the many orders

which were being sought, was an order that the bankrupt be

discharged from bankruptcy forthwith. If the registrar had

not declined to make that order and the application had been

successful, then of course, that would bring the bankruptcy

proceedings to an end. However, if, as happened, the order

was refused, the bankruptcy continued and the jurisdiction

of the bankruptcy court .... would have continued and his

bankruptcy would have to have continued until ultimately he

was discharged from bankruptcy........ In consequence leave

is required and Mr. Shine has not yet received leave.

...

..., having come to the conclusion that leave is

required in this case, I would reject Mr. Shine's

application for leave."

The judgment of the Court of Appeal was dated 25 July 1988.

A request to the House of Lords for leave to appeal was

dismissed on 7 November 1988.

The applicant was automatically discharged from bankruptcy

under the provisions of the Insolvency Act 1986 ("the 1986 Act") on

29 December 1989.

The bankruptcy law relevant to the present case is generally

that in force at the time the applicant was adjudged bankrupt, that is,

the Bankruptcy Act 1914 ("the 1914 Act") and the 1976 Act. The

automatic discharge provisions in Schedule II to the Insolvency Act

1986 ("the 1986 Act") also applied as from the date on which the Act

came into force.

Section 26 of the 1914 Act provided for application by a

bankrupt to the court for an order of discharge at any time after

being adjudged bankrupt. The application was, however, not to be

heard until the public examination of the bankrupt had been concluded.

The application was, in principle, to be heard in open court. Section

208 (1) of the 1914 Act provided that the court could, at any time,

review, rescind or vary any order made by it under its bankruptcy

jurisdiction; this included power to review an order refusing

discharge.

The 1976 Act made additional provision for discharge of

bankrupts. Under Section 7, the court could consider granting an

automatic discharge which would take place on the fifth anniversary of

the adjudication of bankruptcy. Section 8 provided for an application

by the official receiver for an order of discharge to be considered in

the sixth year after the adjudication of bankruptcy.

By virtue of Schedule 11 to the 1986 Act, provision was made

for the automatic discharge of bankrupts whose cases had commenced

before the 1986 Act came into force. Paragraph 13 of Schedule 11

provided that such a person would (unless the official receiver

objected and the Court agreed) be discharged three years from the date

of entry into force of the 1986 Act. The 1986 Act entered into force

on 29 December 1986.

COMPLAINTS

The applicant complains that the Court of Appeal and the

Registrar refused to allow his case to be put before a judge. He

alleges a violation of Article 6 para. 1 of the Convention. He also

states that leave to appeal to the Court of Appeal should not have

been necessary as his liberty was at issue.

The applicant also alleges violations of Articles 5 and 8 of

the Convention and of Article 1 of Protocol No. 1 by virtue of the

actions of the official receiver as his trustee in bankruptcy.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 November 1988 and

registered on 15 March 1989.

On 7 June 1990 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to submit

observations on its admissibility and merits. The Government's

observations were submitted on 7 December 1990 and the applicant's

observations in reply on 12 April 1991.

THE LAW

1. The Commission considers the applicant's principal complaint

to be an allegation of a violation of Article 6 (Art. 6) of the

Convention by virtue of his inability to apply for discharge from

bankruptcy.

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

far as relevant, as follows:

"1. In the determination of his civil rights and

obligations ... everyone is entitled to a fair and

public hearing within a reasonable time by an

independent and impartial tribunal established by

law. ..."

The respondent Government submit that, even if the applicant,

who was discharged from bankruptcy under the automatic discharge

provisions of the Insolvency Act 1986 ("the 1986 Act") on 29 December

1989, may still claim to be a victim of a violation of the Convention,

the complaint is inadmissible for failure to exhaust domestic

remedies. They consider that he should have applied for his public

examination to be restored, and he could then have applied for a

hearing of his application for discharge, or he could have reapplied

for discharge, at any time.

The Commission notes that, at the relevant time, Section 26 of

the Bankruptcy Act 1914 ("the 1914 Act") provided a clear statutory

right for a bankrupt to apply to open court for a discharge from

bankruptcy at any time after conclusion of his public examination.

Provision was made for automatic discharge in the Insolvency Act 1976

("the 1976 Act) and the 1986 Act. The official receiver objected to

automatic discharge under the 1976 Act, with the result that the

applicant was not automatically discharged in 1986. Under the 1986

Act, however, the official receiver did not attempt to hinder

automatic discharge, and the applicant was eventually discharged on 29

December 1989.

The Commission is not required to consider whether the

applicant's automatic discharge constituted adequate redress for the

alleged violation of the Convention as the application is in any event

inadmissible for the following reasons.

As the Government point out, the applicant's complaint to the

Commission is directed to his inability to have a court consider his

discharge in bankruptcy, in particular his application for discharge

which was considered by Mr. Registrar Dewhurst on 18 November 1987.

However, the relevant rules at the time provided for an application

for discharge to be made at any time subsequent to the public

examination of a debtor. Although the applicant's public examination

had been concluded in 1980, it was re-opened in 1982 on discovery of

matters which had not previously been revealed. In his observations

in reply, the applicant does not deny that he was aware of the

re-opening of the public examination. He merely relies on the

original conclusion of the examination on 31 October 1980.

The Commission finds that the applicant could have made an

application for discharge, which should have been heard in open court,

provided he complied with the requirement to have his public

examination concluded. It follows that the complaint that the

applicant was not able to apply for discharge is misconceived and this

part of the application is accordingly manifestly ill-founded within

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

2. The applicant also alleges a violation of Article 8 (Art. 8)

of the Convention, which provides as follows:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of ... the economic well-being

of the country, for the prevention of disorder or

crime, for the protection of health or morals, or for the

protection of the rights and freedoms of others."

With regard to the question of inability to apply for

discharge, the Government consider that the applicant was not affected

in any material way by the continuation of the bankruptcy. In the

alternative, they consider that any interference with his right to

respect for private and family life, his home or his correspondence,

was justified under Article 8 para. 2 (Art. 8-2) of the Convention.

The Commission recalls that it has found above that the

applicant was, in fact, able to apply for a discharge, but that he had

not complied with the formality of ensuring that his public

examination was concluded. However, the continuation of bankruptcy,

until the applicant's automatic discharge on 29 December 1989, will

inevitably have had some repercussions on his private and family life,

his home or his correspondence, and the Commission accepts that these

repercussions may amount to an interference with his rights under

Article 8 (Art. 8) of the Convention. However, in accordance with

Article 8 para. 2 (Art. 8-2), this interference was clearly in

accordance with the law (namely the 1914 Act, the 1976 Act and the

1986 Act), and there is no indication in the present case that the

interference with the applicant's Article 8 (Art. 8) rights by the

continued existence of his bankruptcy went any further than necessary

in a democratic society in the interests of, amongst others, the

protection of the rights and freedoms of others, such as the

applicant's creditors and potential parties dealing with him.

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.

3. The applicant also complains of various other matters alleging

further violations of Articles 6 and 8 (Art. 6, 8) of the Convention

and violations of Article 5 of the Convention and Article 1 of

Protocol No. 1 (P1-1).

The Commission has examined these complaints as they have been

submitted by the applicant. However, after considering them as a

whole, the Commission finds that they do not disclose any appearance

of a violation of the rights and freedoms set out in the provisions

invoked by the applicant.

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 unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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SHINE v. THE UNITED KINGDOM

SHINE v. THE UNITED KINGDOM

LEXI