AS TO THE ADMISSIBILITY OF

                      Application No. 13021/87

                      by José RUIZ MATEOS

                      against the United Kingdom

        The European Commission of Human Rights sitting in private

on 8 September 1988, the following members being present:

              MM. C.A. NØRGAARD, President

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  J. RAYMOND, Deputy 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 18 February 1987

by José Ruiz Mateos against the United Kingdom and registered

on 12 June 1987 under file No. 13021/87;

        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 applicant, José Maria Ruiz Mateos, is a citizen of Spain

who was born in 1931.  He is currently resident in Madrid.  In the

proceedings before the Commission he is represented by Carter Faber,

solicitors, London.  The facts of the case, as submitted on behalf of

the applicant, may be summarised as follows:

        Prior to 23 February 1983, the applicant was the President of

Rumasa S.A. ("Rumasa"), a company incorporated in Spain.  He also

owned 50% of the shares of this company, the remaining shares being

divided equally between other members of his family.  Rumasa is the

parent company of a group involving hundreds of subsidiary and

associated companies, including an English company, W & H Ltd., and

two Spanish banks, Banco de Jerez S.A. ("Jerez") and Banco del Norte

("Norte").  In 1983, the Rumasa group employed over 60,000 people and

its assets have been estimated at over 500,000 million pesetas at

that time.  In addition to banking, the business carried on by

companies in the group included the production and shipping of wine

and sherry and the management of hotels.

        On 23 February 1983, Rumasa and all its subsidiaries

incorporated in Spain, including the two banks, were expropriated by

the Spanish Government by Royal Decree.   This decree was replaced and

amended by a law of 29 June 1983, which also vested control of the

companies' management in the general board of state ownership.  The

stated reason for the compulsory acquisition was that the Rumasa group

had embarked on rash speculations and reckless expansions of credit on

a scale which threatened the stability of the Spanish economy, the

livelihood of workers and the savings of bank depositors.

        The representatives of the Spanish Government now charged with

the duty of managing the Rumasa group alleged that while the applicant

and his family controlled the group, sums amounting to $46 million had

been improperly diverted from the two Spanish banks.  The Spanish

Government accordingly caused Rumasa and the two banks to institute

proceedings in the High Court, Chancery Division, in London against the

applicant and companies controlled by him in order to recover assets

representing the $46 million, as well as a claim for damages against

the applicant (Rumasa S.A. and Others v.  Multinvest (U.K.) Ltd. and

Others).

        During the course of these proceedings, the applicant applied

for leave to amend his defence to plead that the action amounted to

"an attempt to enforce a foreign law which is penal or which otherwise

ought not to be enforced" by the court, "and further, or

alternatively, that it would be contrary to public policy to grant

the relief sought or any relief."

        In the applicant's submission, there were two aspects to this

defence.  First, that the Spanish decree and law were confiscatory

laws made in breach of his property rights through an arbitrary and

discriminatory procedure and without proper compensation.  Secondly,

that but for these confiscatory laws, the applicant and his family

would have retained ownership of the shares and the actions would not

have been brought.

        The question of whether the applicant could raise this defence

was considered by the High Court together with the identical issue in

another action brought against the applicant and others arising out of

similar allegations concerning trade marks (Williams & Humbert v.  W & H,

Trade Marks).  In this case the plaintiff had applied to strike out

the same defence.  The present application is only concerned with the

first action referred to above.

        On 19 December 1984 Mr.  Justice Nourse refused to allow the

applicant to raise this defence inter alia on the grounds that the

action did not amount to an attempt to enforce Spanish law either

directly or indirectly ([1986] AC 368, pp. 375-87).  An appeal to the

Court of Appeal was rejected on 3 April 1985 (loc. cit., pp. 389-414).

On 12 December 1985 the House of Lords dismissed an appeal against

this decision, holding that the judge had been correct to refuse to

allow the applicant to amend his defence, as the consideration

advanced was irrelevant to the legal questions at issue (loc. cit.,

pp. 425-441).

        The reasons for the decision of the House of Lords are set out

in the judgment of Lord Templeman, who stated:

        "It is ... doubtful whether the Spanish law dated

        29 June 1983 can properly be described as a penal

        law for present purposes, but in any event the

        respondents are not seeking to enforce Spanish law."

        He found that the object of the Spanish law at issue, namely

the acquisition and control of the Spanish company and its Spanish

subsidiaries, had already been wholly achieved, and the purpose of the

action was therefore not the enforcement by the Spanish Government of

Spanish law but the recovery of assets and damages under English

private law by companies which were separate legal entities from the

Government which controlled them.  Lord Templeman accordingly

considered that:

        "...Rumasa, Jerez and Norte ... are seeking to enforce

        English private law which can be invoked, subject to

        exceptions not here relevant, by a plaintiff of any

        nationality against any defendant within the jurisdiction and

        against any property within the jurisdiction."

        Lord Templeman further reasoned that the necessary corollary

of the applicant's argument was that the practical effect of the

Spanish law was to release from liability outside Spain all such legal

persons as were in breach of their civil obligations to any company

comprised in the Rumasa group.  Such a proposition would be contrary

to the principles of international law upon which were based the

well-established rule that an English court will recognise, subject

only to limitations for the safeguarding of human rights, a foreign

law effecting a compulsory acquisition.  An English court would

therefore normally decline to consider the merits of such a compulsory

acquisition and would recognise the consequences of the change of

title to property which has thereby come under the control of a

foreign state.  Lord Templeman continued:

"...  if an application to strike out involves a prolonged

and serious argument the judge should, as a general rule,

decline to proceed with the argument unless he not only

harbours doubts about the soundness of the pleading but,

in addition, is satisfied that striking out will obviate

the necessity for a trial or will substantially reduce

the burden of preparing for trial or the burden of the

trial itself.  In the present case, the general rule would

seem to require a refusal by the judge to embark on the

problems of international law involved in the present appeal,

leaving those problems to be solved at the trial if they

became material.  If at the trial the appellants were

cleared of any impropriety in their management of the

affairs of the Rumasa group, then the problems of

international law would not arise.  Moreover, even if those

problems did arise I do not believe that the length of time,

namely seven days, occupied by the judge in deciding to

strike out the pleadings would have been added to the time

required to decide other issues.  But there are special

circumstances which, in my view, made it right for the judge

to proceed and to make the order which he made.  If the

appellants' pleadings and particulars had not been struck

out, the appellants would have proceeded to demand discovery

before trial and to lead evidence at the trial, harrassing

to the respondents and embarrassing to the court and

designed to support the allegations and insinuations of

oppression and bad faith on the part of the Spanish

authorities which appear in the amended defences and

particulars.  These allegations are irrelevant to the ...

action and are inadmissible as a matter of law and comity

and were rightly disposed of at the first opportunity."

        The case was then returned to the Chancery Division of the

High Court for trial.  In his judgment on 12 December 1986, Mr.

Justice Gibson found that the assets in question had been wrongfully

misapplied by the applicant in breach of his fiduciary duties.  He

accordingly ordered that the applicant should pay to Jerez the sums of

$53,777,106.02, Swiss Francs 9,146,561.13 and DM 13,380,647.09 by way

of compensation, plus the costs of the action.

        The applicant was advised by leading counsel that as a result

of the above ruling of the House of Lords he had no realistic prospect

of success in an appeal against this decision.

COMPLAINTS

        The applicant complains that he was prevented by United Kingdom

law from arguing, as a defence to the claim brought against him in the

English courts, that the action would not have been brought but for

the Spanish expropriation law, and that the said law was penal and

confiscatory in nature and was made in breach of his fundamental

rights, including the rights protected under the Convention and

Protocol No. 1 thereto.

        Article 1 of Protocol No. 1

        The applicant complains that the decision of Mr.  Justice

Gibson of 12 December 1986 deprived him of his possessions in a manner

contrary to Article 1 of Protocol No. 1.

        In this connection, the applicant submits first that this

decision enforced laws deemed necessary to control the use of property

within the meaning of the second paragraph of Article 1 of Protocol

No. 1.

        In denying him the opportunity to raise the said defence, the

applicant argues that United Kingdom law failed to draw a fair balance

between his own interests and those of the community as a whole, as

required by the Convention, and more specifically, that it failed to

provide a procedure compatible with Article 1 of Protocol No. 1 in

denying him a reasonable opportunity of putting his case as to why he

should not be deprived of his property.  In this respect, the

applicant invokes the Agosi case (Eur.  Court H.R., Agosi judgment of

24 October 1986, Series A no. 108, p. 17 at paras. 54-55) as authority

for the proposition that all the relevant circumstances should be

taken into account in such a determination, and submits in consequence

that the reasons given by the House of Lords for refusing to allow him

to raise his defence in the English courts are no answer to the

complaint under Article 1 of Protocol No. 1.  In the submission of the

applicant, the Spanish expropriation law was not only a relevant

circumstance for the action in the English courts, but was central to

its existence and outcome.

        Articles 6, 13 and 14 of the Convention

        The applicant complains further that in the determination of

his civil rights and obligations in respect of substantial sums of

money, he was prevented from raising before the courts the substance

of his defence and that he was therefore denied a fair hearing,

contrary to Article 6 para. 1 of the Convention.

        The applicant also complains that he had no domestic remedy in

the United Kingdom for his complaint that United Kingdom law wrongly

deprived him of his property and denied him a fair hearing, contrary

to Article 13 of the Convention.  In particular, the House of Lords

was unable, as a matter of domestic law, to apply to the case of the

applicant the standards and principles set down in the Convention and

in Protocol No. 1.

        In the alternative, the applicant complains that the United

Kingdom acted in breach of Article 13 by failing to provide him with

an opportunity of arguing that the Spanish expropriation law was in

breach of the Convention and of Protocol No. 1.

        Finally, the applicant complains that he is the victim of

discrimination in that other persons whose property is the subject of

litigation in the United Kingdom are able to present defences arguing

that for reasons of public policy no relief should be granted to the

plaintiff.  In this connection, the applicant invokes Article 14 in

conjunction with Articles 6 and 13 of the Convention and with Article

1 of Protocol No. 1.

THE LAW

1.      The applicant has complained that the proceedings before the

Chancery Division of the High Court which led to the decision of

Mr.  Justice Gibson on 12 December 1986 amounted to a violation of his

rights under the Convention and, in particular, Article 1 of Protocol

No. 1 (P1-1).  The applicant has complained that the High Court was prevented

by United Kingdom law from considering his defence to the action

brought against him by Rumasa, Jerez and Norte and such action would

not have been brought but for the Spanish expropriation law, and that

the said law was penal and confiscatory in nature and was made in

breach of his fundamental rights.

        Article 26 (Art. 26) of the Convention

        The Commission notes that in respect of the original refusal

of the High Court, on 19 December 1984, to consider the above defence,

the applicant subsequently appealed without success to the Court of

Appeal.  He appealed again to the House of Lords which finally

dismissed the issue for purposes of domestic law on 12 December 1985.

It was not until one year later, on 12 December 1986, that judgment

was given against the applicant in the main action taken against him

by the Spanish companies.  On the basis of advice then given to him by

counsel, the applicant did not appeal against that decision.

        Article 26 (Art. 26) of the Convention provides as follows:

"The Commission may only deal with the matter after all

domestic remedies have been exhausted, according to the

generally recognised rules of international law, and within

a period of six months from the date on which the final

decision was taken."

        The Commission is of the opinion that it is not necessary in

the present case to consider whether the applicant has complied with

the six months rule and has exhausted all available domestic remedies

since the applicant's complaints fall, in any event, to be

rejected as inadmissible for the reasons developed below.

2.       Article 1 of Protocol No. 1 (P1-1)

        The applicant has complained first that the decision of Mr.

Justice Gibson on 12 December 1986 deprived him of his possessions in

a manner contrary to Article 1 of Protocol No. 1 (P1-1),  which provides as

follows:

        "Every natural or legal person is entitled to the peaceful

        enjoyment of his possessions.  No one shall be deprived of

        his possessions except in the public interest and subject

        to the conditions provided for by law and by the general

        principles of international law.

        The preceding provisions shall not, however, in any way

        impair the right of a State to enforce such laws as it

        deems necessary to control the use of property in

        accordance with the general interest or to secure the

        payment of taxes or other contributions or penalties."

        The applicant has submitted that he was deprived of his

possessions contrary to the second sentence of this provision.  In

this connection he complains that he was denied a reasonable

opportunity of putting his case as to why he should not be deprived of

his property.

        The Commission recalls that the deprivation of property

referred to in the second sentence of Article 1 of Protocol No. 1 (P1-1) is

primarily concerned with the formal expropriation of assets for public

purposes, and not with the regulation of rights between persons under private

law unless state responsibility is in some way involved in affecting their

exercise (e.g.  Nos. 8588/79 and 8589/79, Bramelid and Malmström v.  Sweden,

Dec. 12.10.82, D.R. 29 p. 64).

        In the present case, it is clear that the United Kingdom has

not directly deprived the applicant of his possessions or otherwise

expropriated his property.  Nor can it be said that the United Kingdom

was enforcing "such laws as it deems necessary to control the use of

property" within the meaning of Article 1 of Protocol No. 1 (P1-1).  The

order against the applicant was rather made by the Chancery Division

of the High Court in the exercise of its jurisdiction over a private

law dispute between the applicant on the one hand and three companies

which he had formerly controlled on the other.  The dispute directly

concerned an alleged breach on the part of the applicant of his

fiduciary obligations towards those companies, in improperly

diverting money from them.  In essence the High Court in its decision

of 12 December 1986 decided that the applicant had no entitlement to

the monies so diverted and that they should be returned with interest

to the plaintiff companies.

        The Commission finds that the mere fact that a judicial

authority provided a forum for the determination of such a private law

dispute does not give rise to an interference by the State with

property rights under Article 1 of Protocol No. 1 (P1-1) (see in this

context No. 10000/82, Dec. 4.7.83, D.R. 33 p. 247;  No. 11949/86, Dec.

1.12.86, to be published in D.R.)

        However, the applicant contends that a State is subject to a

positive obligation under Article 1 of Protocol No. 1 (P1-1) to

protect the property rights of an individual in the context of a

dispute with another private individual to the extent necessary to

ensure that in the determination of that dispute all relevant

arguments will be fully considered by the courts.  In this connection,

the applicant has invoked the finding of the European Court of Human

Rights in the Agosi judgment of 24 October 1986 to the effect that

"... although the second paragraph of Aricle 1 [of Protocol No. 1]

(P1-1) contains no explicit procedural requirements, the court must

consider ... whether the procedures in question afforded the applicant

... a reasonable opportunity of putting its case to the responsible

authorities" (loc. cit., p. 19, para. 55).

        The Commission recalls that the Agosi case concerned a direct

control of the applicant company's property by the respondent State in

purported pursuance of the aims laid down in the second paragaraph of

Article 1 of Protocol No. 1 (P1-1).  In the present case, however,

there has been neither a deprivation of the applicant's property nor a

control of the use of property by the respondent State within the

meaning of that provision.  Accordingly, the considerations taken into

account by the Court in the Agosi case relating to the striking of a

fair balance between the interests of the individual and the interests

of the State do not arise in the present case.

        Having regard to the above, the Commission finds that Article

1 of Protocol No. 1 (P1-1) cannot be interpreted so as to require the

United Kingdom courts to examine the applicant's claim that the

Spanish law providing for the acquisition of Rumasa was penal and

confiscatory.

        It follows that the proceedings in question do not amount to

an interference with the applicant's property rights as guaranteed by

this provision and that this complaint must be dismissed as manifestly

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

Convention.

        The applicant has also complained that as a result of the

ruling that the said defence could not be invoked, he was denied a

fair hearing in the action brought against him by the Spanish

companies, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

        With regard to the proceedings of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention.  In

particular, it is not competent to deal with a complaint alleging that

errors of law or fact have been committed by domestic courts, except

where it considers that such errors might have involved a possible

violation of any of the rights and freedoms set out in the Convention.

The Commission refers, on this point, to its constant case-law (see

e.g.  No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;  No. 5258/71,

Dec. 8.2.73, Collection 43 pp. 71, 77;  No. 7987/77, Dec. 13.12.79,

D.R. 18 pp. 31, 45).

        The Commission notes in this connection that the question as

to whether the applicant's said defence could be raised was

extensively examined by the courts.  In addition to being considered

in a lengthy hearing before the High Court in December 1984, the issue

was the subject of two separate hearings on appeal before the Court of

Appeal and the House of Lords.  The decision then reached as a matter

of domestic law was that the defence sought to be raised was

irrelevant to the proceedings in question and that it had been

disposed of correctly by the trial judge.

        Moreover, the applicant had the assistance of counsel in the

presentation of his defence before the High Court and in the appeal

proceedings.  There is nothing in his submissions which suggests that

his counsel, or the applicant in person, was prevented from making

full submissions on the question of the relevance of the said defence

to the proceedings taken against him.  Nor is there any other indication

of unfairness in the proceedings as a whole such as to raise an issue

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

        It follows that this part of the applicant's complaint must also

be rejected as manifestly ill-founded within the meaning of Article 27

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

4.      Article 13 (Art. 13) of the Convention

        The applicant has complained firstly that the failure of

United Kingdom law to provide him with an opportunity of raising the

said defence amounted to a breach of Article 13 (Art. 13) of the Convention.

        Article 13 (Art. 13) states as follows:

        "Everyone whose rights and freedoms as set forth in

        this Convention are violated shall have an effective

        remedy before a national authority notwithstanding that

        the violation has been committed by persons acting in

        an official capacity."

        The Commission recalls that it is well established that where

the right claimed is of a civil character, the guarantees of Article

13 (Art. 13) are superseded by the more stringent requirements of

Article 6 para. 1 (Art. 6-1) of the Convention (e.g.  No. 10358/83,

Dec. 15.12.83, D.R. 37 p. 142).  It follows that no separate issue

arises under Article 13 (Art. 13) in respect of this aspect of the

applicant's complaint.

        The applicant has argued in the alternative that the United

Kingdom is in breach of Article 13 (Art. 13) in failing to provide a

remedy under United Kingdom law for his complaints under Article 6

(Art. 6) of the Convention and Article 1 of Protocol No. 1 (P1-1).

        The Commission recalls that for Article 13 (Art. 13) to apply

the claim that a provision of the Convention has been breached must be

an "arguable" one (see Eur.  Court H.R., Boyle and Rice judgment of 27

April 1988, Series A no. 131, paras. 52-55).  The Commission notes

that it has rejected the applicant's complaint under Article 1 of

Protocol No. 1 (P1-1) on the basis that the judicial determination

before the courts of the United Kingdom of the dispute between the

applicant and Rumasa, Jerez and Norte does not interfere with the

applicant's property rights.  It also recalls that it has concluded

that the court proceedings were fair within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention.   Against this background the

Commission does not consider that the applicant's complaints under

these provisions can be described as "arguable" ones for the purpose

of this provision.

        It follows that the above complaint under Article 13 (Art. 13)

must be rejected as incompatible ratione materiae with the provisions

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

of the Convention.

5.      Article 14 (Art. 14) of the Convention

        The applicant has also complained that he was subject to

discrimination in that other persons or companies whose property is the

subject of litigation in the United Kingdom are able to present

similar defences to that which the applicant sought to raise in

relation to the Spanish expropriation law.

        However, the applicant has not shown that persons or companies

in a comparable situation to that obtaining in his case would be

treated differently in the determination of a similar dispute under

United Kingdom law.

        The Commission therefore finds that the applicant has not

substantiated his complaint of discrimination contrary to Article 14

(Art. 14) of the Convention.

        It follows that this part of the application must also 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

        DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission         President of the Commission

      (J. RAYMOND)                             (C. A. NØRGAARD)