AS TO THE ADMISSIBILITY OF

Application No. 12502/86

by Cornelius GINIKANWA

against the United Kingdom

        The European Commission of Human Rights sitting in private on

9 March 1988, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                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 19 May 1986

by Cornelius GINIKANWA against the United Kingdom and registered

on 27 October 1986 under file No. 12502/86;

        Having regard to:

     -  reports provided for in Rule 40 of the Rules of Procedure of

        the Commission;

     -  the Commission's decision of 6 March 1987 to bring the

        application to the notice of the respondent Government

        and invite them to submit written observations on its

        admissibilty and merits;

     -  the observations submitted by the respondent Government on

        24 August 1987 and the observations in reply submitted

        by the applicant on 17 September 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a citizen of Nigeria, born in 1921 and

resident in London.  He is a barrister by profession but has been

disbarred from practice.  It is this disbarment which is the subject

of his application.

        The facts agreed between the parties may be summarised as

follows.

        The applicant was called to the Bar of England and Wales by

the Honourable Society of the Middle Temple in July 1973.  He

commenced practice at the Bar in 1977.

        On 20 June 1983 the Senate of the Inns of Court and the Bar

received a complaint from His Honour Judge Slot about the applicant's

conduct of the case for the defence in a rape case over which Judge

Slot had presided.  After the applicant had been given an opportunity

to comment on the complaint, and his comments had been received by the

Senate, the applicant was informed on 7 October 1983 of the decision

of the Professional Conduct Committee that the complaint would be

referred to a Disciplinary Tribunal.

        On 1 November 1984 the applicant was formally charged with the

following three charges of professional misconduct:

"1.  Charge:  Professional Misconduct

     Particulars:  Having been instructed to act on 19 May

1983 as Counsel for the defence of who had been indicted at

the Central Criminal Court for the offence of rape, you showed

such professional incompetence as would be likely to be

detrimental to the proper administration of justice in that you

failed properly to prepare and master your brief in relation to

the defendant's antecedent history.

2.  Charge:  Professional Misconduct

    Particulars:  On 20 May 1983 when acting as counsel for

the defence of who had been indicted at the Central Criminal

Court for the offence of rape, you showed such professional

incompetence as would be likely to be detrimental to the proper

administration of justice in that without seeking leave of the

Court you asked questions in cross-examination of the complainant

.... relating to her previous sexual experience with other men

contrary to Section 2 (1) of the Sexual Offences (Amendment) Act

1976.

3.  Charge:  Professional Misconduct

    Particulars:  On or about 26 May 1983, when acting as

counsel for the defence of who had been indicted at the

Central Criminal Court for the offence of rape, you engaged in

conduct which was prejudicial to the administration of justice in

that during your final speech you misrepresented the evidence by:

(a)     Suggesting to the jury that the prosecution's failure to

        produce a photofit picture reflected discredit on the

        police, without having laid any foundation for such a

        suggestion and:-

(b)     Wrongly stating that there had been two dissimilar

        photofit pictures in the case."

        The applicant was also notified of the date of the hearing of

the Disciplinary Tribunal which was arranged for 3 January 1985.  At

the applicant's request, the date of the hearing was postponed until

11 April 1985.  On 18 March the applicant again sought and obtained a

postponement of the hearing of the charges against him by the

Disciplinary Tribunal.

        On 8 May 1985, at the hearing of a Summons for Directions

before His Honour Judge Argyle, Q.C., the date of the hearing was

fixed for 30 May 1985, despite the applicant's objections to such an

early hearing.  Before Judge Argyle, the applicant requested the

presence before the Tribunal of his "chief accuser", i.e.  Judge Slot

who had lodged the complaint against him.  However, Senate Counsel

replied that it was not his intention to call the trial judge to give

evidence.  The applicant apparently did not repeat his request before

the Disciplinary Tribunal, or, later, before the Visitors.

        On 17 May 1985, the President of the Senate first appointed a

tribunal to hear the charges against the applicant.  On 30 May 1985

the applicant (who was not represented) requested and was granted an

adjournment of the hearing.

        On 13 June 1985, in consequence of the earlier adjournment,

the President of the Senate made a second order for the appointment of

a Disciplinary Tribunal to hear and determine the charges against the

applicant.  The hearing was arranged for 18 July.  The members of the

Tribunal were:  His Honour Judge West-Russell, a Circuit Judge

(Chairman of the Tribunal); the Right Honourable the Lord Henderson of

Brompton, KCB (a lay member of the Tribunal); and Mr.  Raymond Kidwell,

Q.C., Mr.  Peter Rawson and Mr.  Bernard Phelvin (practising members of

the Bar).

        The applicant challenged the chairmanship of the Disciplinary

Tribunal prior to the hearing, but the Senate refused to replace the

judge and the applicant did not pursue the challenge further, on

counsel's advice, at the hearing on 18 and 19 July 1985.  The

applicant, who was present throughout the hearing, was represented by

Counsel.  On 19 July the tribunal, by a majority of three to two,

found the first of the charges of professional misconduct to have been

proved.  The remaining two charges were dismissed.

        The applicant alleges that the Tribunal hearing was not held

in public, a number of persons acquainted with the applicant having

been turned away at the door.

        On 19 July 1985, in consequence of their finding of

professional misconduct, and having heard the applicant's counsel in

mitigation, the Disciplinary Tribunal ordered that the applicant be

disbarred and expelled from the Honourable Society of the Middle

Temple.

        On considering the disciplinary sanction to be imposed, the

Tribunal was informed of two previous findings of the applicant's

professional misconduct:  First, the applicant had been admonished by

the Professional Conduct Committee for his failure to appear before

the Court of Appeal, a failure which appears to have been attributed

to his clerk.  Secondly, the applicant had been suspended from

practice for six months in 1983 for swearing a false affidavit and

making a false statement during a hearing in an action involving

himself and his family.

        On 9 August 1985, in accordance with the provisions of the

Hearings Before the Visitors Rules 1980 ("the 1980 Rules"), the

applicant submitted to the Lord Chancellor a notice of appeal to the

judges sitting as Visitors to the Inns of Court against the finding

and sentence of the Disciplinary Tribunal.

        On 17 September 1985 the applicant was notified that the

period of 56 days from the date of the Disciplinary Tribunal's order,

within which Rule 4 of the 1980 Rules requires a petition of appeal to

be served, had expired.  On 19 September 1985 the applicant applied to

the Lord Chancellor for an extension of time for the service of a

petition of appeal.  The Lord Chancellor allowed the applicant a

further 28 days from the expiry of the 56 day period specified by the

1980 Rules.  The applicant's petition dated 8 October 1985 was

received on 14 October.  An answer was delivered to the Lord

Chancellor under cover of a letter of 1 November from the Senate of

the Inns of Court and the Bar.

        In response to the Lord Chancellor's request made on 10

December 1985, pursuant to Rule 9(1) of the 1980 Rules, the Lord Chief

Justice nominated the following judges of the High Court to sit as

Visitors to the Inns of Court for the purpose of hearing the

applicant's appeal:  Mr.  Justice Russell (President), Mr.  Justice

Waite and Mr.  Justice Kennedy.  The applicant was notified on

22 January 1986 that the hearing of his appeal had been fixed for

5 and 6 February 1986.

        On 27 January the applicant wrote to the Lord Chief Justice

seeking an adjournment to enable the same counsel who had represented

him before the Disciplinary Tribunal to represent him at the hearing

of his appeal to the Visitors.  Having discussed the application with

Mr.  Justice Skinner - who had been nominated by the Lord Chief Justice

to preside at the hearing of the Visitors in place of Mr.  Justice

Russell who was otherwise engaged - the Lord Chief Justice declined to

grant an adjournment.

        On 5 February 1986, the Visitors (Skinner, Waite and Kennedy,

JJ.) heard the applicant's appeal against the finding and sentence of

the Disciplinary Tribunal.

        Before the commencement of the hearing of the appeal, counsel

appearing on behalf of the applicant, Mr.  Nigel Hague, Q.C., made an

application to the Visitors to allow "friends and members of the

Nigerian High Commission to enter and witness the proceedings".

Counsel who appeared before the Visitors on behalf of the Senate

recalls that he did not say anything at all in relation to the

application but adopted a neutral stance.  He remembered that no

reasons were given for wanting the presence of these people.  He did

not recall the applicant's counsel asking "for the general public to

be admitted to the hearing.  Rather, the application was limited - to

Ginikanwa's friends or relatives, or both, (he could not) now remember

which.  It was a limited application not a general one".

        Of the surviving Visitors who sat to hear the applicant's

appeal (Skinner, J. having died in March 1986), Kennedy J. only

faintly remembers the application being made for representatives of

the Nigerian High Commission to be present and the refusal of that

application.  However, Waite, J. has a more detailed recollection:

        "At the outset of the hearing, Mr.  Hague (leading counsel

        for Mr.  Ginikanwa) mentioned that there were people who

        had no direct connection with the hearing but whom

        Mr.  Ginikanwa would like to be present if that were

        permissible.  I have no recollection of the High Commission

        being mentioned, but I could not go so far as to say that I

        am positive it was not.  Skinner J. commented that their

        presence would be unobjectionable if Mr.  Ginikanwa availed

        himself of his right to apply for the hearing to be held

        in public and that application was granted; but that if he

        wished the hearing to proceed in private, it would be

        inconsistent with privacy for persons with no direct

        connection with the case to be allowed to be present.

        The suggestion was then taken no further - it having been

        stated by Mr.  Ginikanwa's counsel or tacitly assumed by

        everyone (I cannot now recall which) that the hearing,

        which had already been constituted as a private hearing,

        would continue in private by Mr.  Ginikanwa's own wish.

        I doubt if the whole of that exchange took more than about

        two minutes.  I am also reasonably certain that no grounds

        were advanced for having other persons present beyond the

        fact that Mr.  Ginikanwa would have liked them to be there"

        (letter dated 10 July 1981 to Lord Chancellor's Department).

        The applicant's representative at the hearing, Mr.  Hague,

wrote in the following terms to the applicant on 23 June 1986:

"(1)  The rules governing hearings before the Visitors (the panel

of High Court Judges nominated to hear appeals from the

Disciplinary Tribunal of the Senate) are contained in the Hearings

Before the Visitors Rules 1980, which are printed as Annex 2 of

the Code of Conduct for the Bar.

The relevant rule is Rule 9(4) which reads:

        'The hearing shall be in private unless the Visitors,

        at the request of the appellant, direct that it shall

        be held in public.'

(2)  I confirm that I certainly made a request on your behalf

that your friends and members of the Nigerian High Commission who

were present should be allowed to enter and witness the

proceedings.  I also confirm that this request was refused.

(3)  So far as I can remember, the Visitors gave no reasons for

the refusal."

        The Visitors found there was strong evidence to prove the

charge against the applicant.  Accordingly, they dismissed the

applicant's appeal against the finding of professional misconduct.

In relation to the appeal against sentence, and after having heard

counsel in mitigation, the Visitors concluded that the sentence

imposed by the Disciplinary Tribunal was a proper one and they

dismissed the appeal against sentence.

        On 4 March 1986 the Masters of the Bench of the Middle Temple

pronounced that the applicant be disbarred and expelled from the

Honourable Society of the Middle Temple.  The finding and sanction

against the applicant were published by the Senate on 24 March 1986.

COMPLAINTS

        The applicant complains of a breach of Article 6 para. 1 of

the Convention on the following grounds:

his civil rights.

2.      Neither the Disciplinary Tribunal nor the Panel of Visitors

constituted a tribunal established by law.

3.      The applicant did not have a public hearing before either

body, neither of which gave reasons for their refusal to allow the

attendance of the applicant's friends and acquaintances.

4.      The Disciplinary Tribunal was chaired by a judge to whom the

applicant objected.

5.      The Panel of Visitors had refused an adjournment of the case

to allow his effective representation, changed their composition at

the last minute and were prejudiced against him after their

pre-hearing, secret discussions of his case.

6.      The applicant was denied an opportunity to cross-examine the

judge who originally lodged the complaints against him.

7.      There was an allegedly inordinate delay in the whole

procedure.

8.      The sanction of disbarment imposed upon him was so manifestly

disproportionate to the misconduct which was found that the hearings

cannot be regarded fair.

9.      The applicant was disciplined for failing to master his brief,

but Senate Counsel before the Visitors was allegedly unprepared; his

handling of the case was not sanctioned.

        The applicant also complains of a breach of Article 13 of the

Convention as he had no court or other remedy for his complaints

against the Visitors.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 19 May 1986 and registered

on 27 October 1986.

        After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

6 March 1987.  It decided to give notice of the application, pursuant

to Rule 42 para. 2 (b) of its Rules of Procedure, to the respondent

Government and to invite the parties to submit written observations on

the admissibility and merits of the applicant's allegation that he was

denied a public hearing before the Panel of Visitors on 5 February

1986, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

        The Government sent their observations on 24 August 1987,

after two extensions of the time-limit for their submission had been

granted by the President of the Commission.  The applicant submitted

his observations in reply on 17 September 1987.

SUBMISSIONS OF THE PARTIES

        The Government

        Part 1: The facts (mostly incorporated into THE FACTS above)

        The Government submit that the evidence, including evidence

given by the applicant's own counsel at the hearing, shows that,

contrary to what the applicant alleges, his application to the

Visitors related only to the admission to the proceedings of certain

individuals and was not an exercise of his right, under Rule 9(4) of

the 1980 Rules, to request that the hearing should be in public.

Though it was open to him to exercise that right, he did not do so.

        Part 2: Disciplinary procedures at the Bar of England and Wales

        Ultimate responsibility for the regulation of the Bar of

England and Wales is vested in the judges deriving their authority

from the Crown.  By the common law the judges have the right to

determine who shall be admitted to practise as barristers and

solicitors; and, as incidental thereto, the judges have the right to

suspend or prohibit from practice.  In England this power has for a

very long time been delegated, as far as barristers are concerned, to

the Inns of Court (see Attorney General of the Gambia v.  N'jie <1961>

2 All E.R. 504, 508 E-F, per Lord Denning).

        Despite the delegation of their common law disciplinary powers

to the Senate of the Inns of Court, the judges retain a supervisory

jurisdiction as Visitors to the Inns (see In re S. (a barrister)

<1969> 1 All E.R. 949).  The judge's visitatorial powers have been

recognised and confirmed as part of the common law for over three

centuries.

        The historical origins and legal basis for the disciplinary

arrangements of the Bar of England and Wales were considered by the

Commission in the cases of S. v. the United Kingdom (No. 9502/81,

Dec. 13.7.83, D.R. 34 p. 102) and P. v. the United Kingdom

12502/86

(No. 11456/85, Dec. 13.3.86 unpublished).  In both cases the

Commission noted that, following resolutions of the judges and of the

Inns of Court, responsibility for the regulation of discipline at the

Bar was transferred to the Senate of the Inns of Court and the Bar,

subject to the supervisory jurisdiction of the Visitors.

        Members of the Bar of England and Wales are subject to a Code

of Conduct, the purpose of which is to maintain the dignity and

standing of the profession and to ensure the maintenance of high

standards by all who practise in the courts.  Although the rules of

professional conduct of the Bar (as of most other professions) are

determined by the profession itself in the light of tradition and

experience, developing over the years as circumstances change, they

remain subject to the supervisory jurisdiction of the judges, as

Whitford, J. observed in Re T (a barrister) <1981> 2 All E.R. 1105,

1109:

        "If any rule acceptable to the Bar were held by the judges

        (in whatever capacity) to be contrary to public policy or

        to be liable to undermine the proper administration of

        justice that rule would of course be ineffective..."

        The Code of Conduct relevant to this application was the one

which had been approved by the Bar in General Meeting on 15 July 1980

and published, with subsequent amendments, in January 1983 (referred

to hereafter as "the 1983 Code").  The 1983 Code was in due course

replaced by the code currently in force which was published in January

1985 ("the 1985 Code") but transitional provisions provided that the

1983 Code should govern the circumstances to which this application

relates.

        Rule 6 of the 1983 Code provided as follows:

        "It is the duty of every barrister:

        (a) to comply with the provisions of this Code and with the

            declaration which he made on his call to the Bar;

        (b) not to engage in conduct (whether in pursuit of his

            profession or otherwise) which is dishonest or which

            may otherwise bring the profession of barrister into

            disrepute; or which is prejudicial to the administration

            of justice;

        (c) to observe the ethics and etiquette of his profession;

        (d) if a practising barrister, or an employed barrister

            acting under paragraph 183 of this code, to be competent

            in all his professional activities."

        Rule 7 of the 1983 Code provided as follows:

        "Serious failure to comply with the duties set out in

        paragraph 6 shall be professional misconduct, and, if

        proved before a Disciplinary Tribunal, shall render the

        barrister liable to be disbarred, to be suspended (either

        unconditionally or subject to conditions), to be ordered

        to repay fees..."

        Part 3: The issues under Article 6 para. 1 of the Convention

        The Government deny that the applicant's right to continue to

exercise his profession was a "civil right" within the meaning of

Article 6 para. 1 of the Convention or that the Disciplinary Tribunal

or the Visitors determined the applicant's civil rights.  Accordingly,

they submit that the application is inadmissible as being incompatible

ratione materiae with the Convention, or, alternatively, as being

manifestly ill-founded.

        In any event, the Government contend that the applicant was

not denied a public hearing of his disciplinary case.  Under Rule 9(4)

of the 1980 Rules the applicant could have requested a public hearing,

but he did not.  His application to the Visitors was limited to the

attendance of his friends and members of the Nigerian High Commission,

i.e. an application for a semi-private hearing to which only selected

individuals should be admitted.  The Government contend that the

applicant's counsel was provided with an opportunity to modify his

application to enable the public to witness the proceedings, but he

did not do so.

        The Government invite the Commission to conclude that the

applicant, far from being refused a public hearing, refrained from

exercising his undoubted right to request such a hearing.  They

submit, therefore, that the applicant's complaint of a violation of

Article 6 para. 1 in this respect is manifestly ill-founded or,

alternatively, that the facts of the case disclose no such violation.

        The applicant

        The applicant concedes that an application was made on his

behalf for his friends and members of his High Commission to be

allowed to attend the Visitors' hearing.

        He contends that such an application was in effect an

application that the public should be admitted since the said friends

and members of the High Commission were not in any way connected with

the case.  In any event, by refusing the application the Visitors

deprived the applicant of his right under the Convention to have his

case heard in public.

        The applicant denies that Skinner J. commented that the

presence of the people concerned would be unobjectionable if the

applicant availed himself of his right to apply for a public hearing

and that application was granted.  He points out that the comment was

not recorded in any court notes, and that the recollection of other

witnesses should be disregarded.

        In the light of the above observations, the applicant

respectfully invites the Commission to conclude that he was deprived

of his right under the Convention to have his case heard in public,

despite the fact that he specifically applied that members of the

public should be allowed to come into and witness the Visitors'

hearing.

        In conclusion the applicant invites the Commission:

      - to reject the submissions and arguments of the respondent

        Government;

      - to declare admissible and/or as being well-founded, his

        complaint of a breach of Article 6 para. 1 of the Convention

        in relation to the proceedings against him before the

        Visitors, and to find that the facts of the present case

        disclose an undoubted violation of that provision.

THE LAW

1.      The applicant's principal complaint is that he has suffered a

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

allegedly, neither the Disciplinary Tribunal nor the Visitors

constituted a tribunal established by law and they denied him a public

hearing in the determination of his civil rights.

        Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:

        "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.  Judgment shall be pronounced

        publicly but the press and public may be excluded from all

        or part of the trial in the interests of morals, public

        order or national security in a democratic society, where

        the interests of juveniles or the protection of the private

        life of the parties so require, or to the extent strictly

        necessary in the opinion of the court in special

        circumstances where publicity would prejudice the interests

        of justice."

        The Government first deny that Article 6 para. 1 (Art. 6-1) of

the Convention applies to the present case.

        The expression determination of "civil rights and obligations"

in Article 6 para. 1 (Art. 6-1) of the Convention has been interpreted

by the European Court of Human Rights in such cases as Le Compte, Van

Leuven and De Meyere v.  Belgium to mean, first, that the evidence

must disclose the existence of a "contestation" or dispute, secondly,

that the dispute must relate to civil rights and obligations or, in

other words, that the result of the proceedings must be directly

decisive for such rights and obligations (Eur.  Court H.R., Le Compte,

Van Leuven and De Meyere judgment of 1 October 1980, Series A no. 43

paras. 41-50).

        The Commission finds that the first element was clearly

present in this case.  A "contestation" or dispute existed between the

applicant and his professional organisation, the Senate of the Inns of

Court, as to whether he was guilty of professional misconduct.  The

proceedings against the applicant before the Disciplinary Tribunal

resulted in his being disbarred and expelled from his Inn, the Middle

Temple.  There can be no doubt therefore that the applicant's right to

practise as a barrister was directly at issue before the Visitors who

had jurisdiction either to uphold or reject the decision and the

sentence of the Disciplinary Tribunal.

        As to the second element of whether the determination of the

dispute in the present case was directly decisive for the applicant's

civil rights and obligations, the Commission again refers to the

case-law of the European Court of Human Rights.  The Court has held

that the withdrawal, through professional disciplinary proceedings, of

the authorisation to practise a liberal profession, albeit providing a

public service (such as the medical, accountancy and legal

professions) may involve the determination of rights of a private,

civil nature.  Article 6 para. 1 (Art. 6-1) may, therefore, be

applicable to such disciplinary proceedings (Eur.  Court H.R., König

judgment of 23 April 1977, Series A no. 27 paras. 86-95, Le Compte,

Van Leuven and De Meyere judgment of 1 October 1980, Series A no. 43

paras. 41-50 and the H judgment of 30 November 1987 paras. 37-48).

        In the case of H v.  Belgium (Eur.  Court H.R., H judgment of

30 November 1987, Series A No. 127 paras. 46-48), the Court found,

inter alia, that various aspects of the profession of "avocat" in

Belgium conferred on the right asserted by H, i.e. the right to resume

his practice after a period of disbarment, the character of a civil

right within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.  The Commission finds that no significant distinction can

be drawn between the right to resume practice at the Bar and the right

asserted by the present applicant to continue practice at the Bar.

Moreover the aspects of the profession of Belgian "avocats" emphasised

by the Court may be found in the barristers' profession at the Bar of

England and Wales: Barristers at the Bar of England and Wales are

officers of the Court providing a public service and contributing to

the administration of justice.  Nevertheless they belong to a

profession independent of the State, have private-law relationships

with their clients through instructing solicitors, civil property

interests in their chambers and clientèle and perform various

functions, such as conciliation and arbitration, which are not

exclusively concerned with the functioning of the country's courts.

In these circumstances, the Commission concludes that the withdrawal

of the applicant's right to practise as an English barrister involved

a determination of matters which were directly decisive for his

private rights.  Accordingly Article 6 para. 1 (Art. 6-1) of the

Convention (the determination of civil rights and obligations) is

applicable to the disciplinary proceedings in which the applicant was

involved.

        The next question raised by the applicant is whether there has

been compliance with Article 6 para. 1 (Art. 6-1) of the Convention,

and, in particular, whether the applicant's case was determined by a

"tribunal established by law" with the benefit of a public hearing.

        The Court stated in its judgment in the case of Albert and Le

Compte that, since the professional disciplinary decisions in that case

involved a dispute over civil rights, the applicants were entitled to

have their cases heard by a tribunal providing the guarantees of

Article 6 para. 1 (Art. 6-1) of the Convention.  It is common in the

High Contracting States for disciplinary matters to be dealt with by

the jurisdictional organs of professional associations.  This is

acceptable provided that either these organs comply with Article 6

para. 1 (Art. 6-1) themselves or they are subject to subsequent

control by a judicial body with full jurisdiction providing the

necessary guarantees (Eur.  Court H.R., Albert and Le Compte judgment

of 10 February 1983, Series A no. 58 para. 29).

        The present applicant's case has been considered by the

Disciplinary Tribunal and the Visitors.  The Commission does not find

it necessary to decide whether the proceedings before the Disciplinary

Tribunal were in conformity with Article 6 para. 1 (Art. 6-1) since it

is satisfied that its requirements were fully met by the Visitors, for

the following reasons:

        It is clear from the reported decisions of the Visitors

referred to in the Government's observations and the Hearings before

the Visitors Rules 1980 that the Visitors act as an appeal tribunal

with full jurisdiction on all questions of law and fact, including

questions relating to sentence.  In this respect, therefore, the

Visitors satisfy the requirement as to the scope of jurisdiction

considered essential under Article 6 para. 1 (Art 6-1) by the Court in

the aforementioned case of Albert and Le Compte.

        As to the question of whether the Visitors may be said to be a

tribunal "established by law", the Commission refers to the Sunday

Times case in which the Court held as follows:

        "The word 'law' in the expression 'prescribed by law' covers

        not only statute but also unwritten law.  Accordingly the

        Court does not attach importance here to the fact that

        contempt of court is a creature of the common law and not

        of legislation" (Eur.  Court H.R., Sunday Times judgment of

        26 April 1979, Series A no. 30 para. 47).

        The Commission considers that the same principle applies to

the use of the word "law" in the expression "established by law" in

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

        It is clear from an examination of the domestic case-law that

the powers of discipline over barristers were traditionally exercised

by the judges, who in turn delegated their powers to the Inns of Court

and subsequently the Senate of the Inns of Court and the Bar.  The

exercise of these powers, however, remained subject at all times to

the visitatorial jurisdiction of the judges (see Re S. (a barrister)

<1969> 1 All E.R. 949).  The Commission concludes therefore that the

jurisdiction of the Visitors derives from the common law and is thus,

in this sense, "established by law" within the meaning of Article 6

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

        Part of the guarantees to be provided by the tribunal

established by law is independence and impartiality.  The applicant

has not challenged the independence and impartiality of the Visitors,

and the Commission finds no reason to doubt that they have this

quality, the Panel of Visitors being composed of three judges of the

High Court, nominated by the Lord Chief Justice after consultation

with the Lord Chancellor (Rule 9(1) of the Hearings Before the

Visitors Rules 1980).

        However, the applicant has challenged the fact that the

proceedings before the Visitors were not held in public.  The

Commission notes that hearings before the Visitors and the

pronouncement of their findings are normally in private.  Nevertheless

Rule 9(4) of the Hearings Before the Visitors Rules 1980 provides that

the Visitors may, at the request of the appellant, direct that a

hearing shall be held in public.

        In the Albert and Le Compte case the Court made the following

remarks concerning the requirement of publicity in Article 6 para. 1

(Art. 6-1) of the Convention:

        "The rule requiring a public hearing, as embodied in

Article 6 para. 1 (Art. 6-1) , may also yield in certain

        circumstance to the will of the person concerned.  Admittedly,

        the nature of some of the rights safeguarded by the Convention

        is such as to exclude a waiver of the entitlement to

        exercise them ... but the same cannot be said of certain

        other rights.  Thus, neither the letter nor the spirit of

        Article 6 para. 1 (Art. 6-1) would prevent a medical practitioner

        from waiving, of his own free will and in an unequivocal

        manner ... the entitlement to have his case heard in

        public; conducting disciplinary proceedings of this kind

        in private does not contravene Article 6 para. 1 (Art. 6-1) if

        the domestic law so permits and this is in accordance with

        the will of the person concerned..." (Eur Court H.R.,

        Albert and Le Compte judgment of 10 February 1983,

        Series A no. 58 para. 35).

        The Commission endorses the principle that the person subject

to disciplinary proceedings may, if he so wishes, waive his right to a

public hearing, for it is likely to be in the future professional

interests of the person concerned to maintain the confidentiality of

such proceedings, to reduce any unwarranted damage to reputation which

might otherwise occur, whether or not they result in an acquittal or a

disciplinary sanction.

        The Commission notes that, under Rule 9(4) of the Hearings

Before the Visitors Rules 1980, the barrister facing disciplinary

proceedings before the Visitors has the right to apply for a public

hearing.  The extent of the discretion left to the Visitors on whether

to grant such an application may raise an issue under Article 6 para.

1 (Art. 6-1) of the Convention.  However, the Commission does not consider it

necessary to determine that issue in the present case because, on its

particular facts, the Commission finds that the applicant has not

substantiated his claim that he wanted a public hearing, with all the

consequences, such as publicity, that such a hearing might have

entailed.

        The Government contend, on the basis of the recollection of

one of the High Court Judges on the Panel of Visitors, that the

applicant only requested the attendance of specific people at the

disciplinary hearing.  One of the Judges then commented that the

presence of these people would be unobjectionable if the applicant

availed himself of his right to apply for the hearing to be held in

public and that application was granted.  However, apparently the

request was taken no further (p. 5 THE FACTS above).

        The applicant denies this recollection of events.  He claims

that his application for the attendance at the hearing of certain of

his friends and members of the Nigerian High Commission was in effect

an application for a public hearing.  However, the applicant's claim

was not reflected in the statement of his representative, senior

counsel, who only confirmed that he had made an application on the

applicant's behalf for the admission of specific people to enable them

to witness the proceedings (p. 5 THE FACTS above).

        Given the context of the legal profession in the present case,

the Commission considers that the applicant and his representative,

with their professional knowledge, must be deemed to have understood

the clear distinction between a private hearing (even if a limited

number of people, not party to the proceedings, are allowed to attend

as observers) and a public hearing.  Accordingly, they must also be

deemed to have understood how an application under Rule 9(4) of the

Hearings Before the Visitors Rules 1980 should have been formulated.

In these circumstances, the Commission concludes that the applicant

has not established that it was his wish to have a public hearing of

his disciplinary case or that his conduct in the matter did not amount

to an unequivocal waiver of his right to a public hearing, within the

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

        It follows that this aspect of the case must be rejected as

being manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.      The applicant has next complained in the context of Article 6

para. 1 (Art. 6-1) of the Convention about the chairmanship of the

Disciplinary Tribunal and the absence of any opportunity to

cross-examine the judge who originally denounced his professional

conduct.  However, the Commission cannot deal with these complaints

because the applicant has failed to exhaust domestic remedies.  It has

not been shown that he pursued his challenge to the chairmanship of

the Disciplinary Tribunal at its hearing on 18 and 19 July 1985.

Furthermore he did not request the Disciplinary Tribunal or the

Visitors to hear the judge in question.  These aspects of the case

must, accordingly, be rejected under Articles 26 and 27 para. 3

(Art. 26, 27-3) of the Convention.

3.      The applicant has also complained under Article 6 para. 1

(Art. 6-1) of the Convention about the Visitors' refusal of an

adjournment, their composition, their alleged personal bias, his

representation, the Senate's representation, the allegedly

disproportionate sanction imposed upon him and the length of the

proceedings.  By virtue of Article 19 (Art. 19) of the Convention, the

Commission is unable to deal with complaints of alleged errors of law

or fact committed by domestic courts and not involving a violation of

the Convention, such as the question of the appropriate disciplinary

sanction that should have been imposed on the applicant.  Insofar as

the applicant has alleged a breach of Article 6 para. 1 (Art. 6-1) of

the Convention in respect of the other aforementioned matters the

Commission finds no evidence that the refusal of a further adjournment

of the case by the Visitors, or both parties' representation before

the Panel, effectively denied the applicant a fair hearing.  Nor is

there any substantiation of the applicant's allegations of personal

bias on the part of the Visitors.

        Moreover, the Commission finds an inconsistency of reasoning

in the applicant's complaints that on the one hand the Visitors

refused his request for an adjournment, and on the other hand the

length of proceedings as a whole was unreasonable.  The Commission

notes that the proceedings lasted from 20 June 1983, when the

allegation of professional misconduct was lodged against him, until

5 February 1986, when the Visitors determined his appeal.  During this

time the only evidence of delay is the applicant's own requests for

adjournments, most of which were granted.  In these circumstances the

Commission also finds the applicant's complaint of unreasonable delay

unsubstantiated.

        It follows that these aspects of the case are manifestly

ill-founded, within the meaning of Article 27 para. 3 (Art. 27-3) of the

Convention.

4.      The applicant finally complains of the absence of an effective

remedy in respect of his complaints concerning the Panel of Visitors.

He invokes Article 13 (Art. 13) of the Convention which provides 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."

        However, Article 13 (Art. 13), as a more general guarantee, is

not applicable in cases where the more specific guarantees of Article

6 (Art. 6) apply, Article 6 (Art. 6) being the lex specialis in

relation to Article 13 (Art. 13) (cf. e.g.  W v. the United Kingdom, Comm.

Report 15.10.85, paras. 130-132, and Eur.  Court H.R., judgment of 8

July 1987, Series A No. 121 paras. 85-86).  The Commission, therefore,

having found above that Article 6 (Art. 6) applies, finds no separate issue

arises under Article 13 (Art. 13) of the Convention in the present

case.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission             President of the Commission

        (H.C. KRÜGER)                         (C.A. NØRGAARD)