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KIRK v. UNITED KINGDOM

Doc ref: 13499/88 • ECHR ID: 001-1076

Document date: March 14, 1989

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Cited paragraphs: 0
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KIRK v. UNITED KINGDOM

Doc ref: 13499/88 • ECHR ID: 001-1076

Document date: March 14, 1989

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 13499/88

by Maurice John KIRK

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 2 February 1987

by Maurice John KIRK against the United Kingdom and registered on

12 January 1988 under file No. 13499/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the applicant may be summarised as

follows.

The applicant is a British citizen born in 1945 and resident

in Guernsey.

The applicant attempted to raise 20 clameurs de haro (a civil

remedy of some antiquity) from 1983 onwards, in relation to an alleged

trespass on his property and removal of equipment and to other

unspecified matters. In connection with eight of these clameurs, the

applicant paid to the Court a registration fee of £7.50. The courts

refused to register the remaining 12. The applicant took proceedings

to recover certain of the court fees. In one of these, the applicant

was suing the Deputy Bailiff for return of £7.50. His application was

dismissed in the Petty Debts Court by Magistrate Plummer. He appealed

and during the hearing of this appeal in court on 23 January 1986, the

applicant considered that the Procureur, who had acted in previous

proceedings was perverting the course of justice and attempted to

arrest him. The applicant alleges that he was assaulted and injured

by a police officer. An article about the incident was published on

24 January 1986 in the Guernsey Evening Press stating that the

applicant had used abusive words. The applicant was subsequently

charged with disorderly conduct. He applied to the Royal Court for

witness summonses and access to certain materials for use at the

trial, but these applications were dismissed on 25 March 1986 by a

court presided over by Magistrate Plummer.

He was found guilty in the Magistrate's Court by Magistrate

Plummer on 26 March 1986 and sentenced to 6 weeks imprisonment. On

24 March his counsel had brought to Magistrate Plummer's attention the

fact that he had earlier sat in the Petty Debts Court at first

instance in relation to the proceedings which on appeal led to the

incident charged. The Magistrate dismissed the objection since he had

not been present at the appeal itself, and he also dismissed an

objection from the applicant relating to the prejudicial publicity.

The applicant appealed to the Royal Court.

The Full Court dismissed his appeal on 15 July 1986 and

increased his sentence to 8 weeks, with a fine of £100. His

application for special leave to appeal to the Privy Council was

dismissed on 26 January 1987.

COMPLAINTS

The applicant complains of the proceedings in the Magistrates

Court and on appeal. He complains that the judges, in particular

Magistrate Plummer were not impartial, that a magistrate fell asleep

during the evidence, that the press were told after the incident that

no charges were pending and that he was unable to examine or

cross-examine the witnesses that he wished. He also complains that he

was refused access to a tape of the court hearing and other material.

He invokes Articles 5 and 6 paras. 1, 2 and 3 (a), (b) and

(d) of the Convention.

THE LAW

The applicant complains of the proceedings in which he was

convicted of disorderly conduct and invokes Articles 5 and 6 paras. 1,

2 and 3 (a), (b) and (d) (Art. 5, 6-1-2-3-a-b-d) of the Convention.

Insofar as the applicant complains of the lack of

impartiality, the Commission recalls that the European Court of Human

Rights has stated that the guarantee of impartiality required by

Article 6 (Art. 6) of the Convention implies a double guarantee: first the

subjective requirement that the judge shall be unbiased, and secondly,

an objective requirement that the situation must be such as to exclude

any legitimate doubts about his impartiality (Eur. Court H.R.,

Piersack judgment of 1 October 1982, Series A No. 53, p. 14, para.

30).

As regards the subjective requirement, the Commission finds

that no evidence has been adduced which could raise any doubts on this

point. In this context the Commission also recalls that the personal

impartiality of a judge must be presumed until the contrary is

established (Eur. Court H.R., Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A No. 43, p. 25, para. 58).

As regards the objective element, while it appears that

Magistrate Plummer, who convicted the applicant of disorderly conduct

had been concerned, at first instance in the proceedings during which,

on appeal, the incident charged as disorderly conduct occurred, the

Commission finds that this factual nexus is not of such nature or

degree as to cast any doubt on the Magistrate's impartiality. The

Commission also finds that the fact that the same magistrate dealt

with the pre-trial application by the applicant for witness summonses

does not disclose any lack of impartiality on the part of that

magistrate in his capacity as trial judge. The Commission notes in

this respect that in many of the Contracting States a trial judge may

deal with procedural questions prior to the trial and decide which

witnesses should or should not be called. The mere fact of having

prior knowledge of a case cannot be considered as making the judge

prejudiced.

The Commission has examined the applicant's remaining

complaints as they have been submitted by him. It finds that these

complaints have not been substantiated and that the facts do not

disclose a breach of any of the provisions invoked by the applicant.

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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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