Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12328/86

by Clements McCARTNEY

against the United Kingdom

The European Commission of Human Rights sitting in private

on 12 December 1987, 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

G. BATLINER

J. CAMPINOS

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 6 August 1986

by Clements McCartney against the United Kingdom and registered

on 10 August 1986 under file No. 12328/86;

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 they have been submitted on behalf of the

applicant, a British citizen born in 1946 and living in Co.

Londonderry, by his representatives, Messrs. Johns Elliott Wallace &

Co., solicitors of Belfast, may be summarised as follows:

The applicant's father opened an account with the Larne branch

of the Belfast Savings Bank on the applicant's behalf in 1946. At the

time of lodging his application he applicant had a current account, a

notice account, and an investment account with the Coleraine branch of

the Trustee Savings Bank Northern Ireland, a successor to the Belfast

Savings Bank.

In 1985 the United Kingdom Government introduced legislation

whereby the various Trustee Savings Banks throughout the country would

be established on a new legal footing, permitting the floatation of

the newly created holding company on the stockmarket.

The Trustee Savings Banks Act 1985 came into force on

25 September 1985. By virtue of Section 3 of that Act, on the vesting

day, all the property rights, liabilities and obligations of the

Trustee Savings Bank Northern Ireland were transferred to a new

holding company established for that purpose, called Trustee Savings

Bank Group PLC. The vesting day is defined in Section 1(1)(d) of that

Act as meaning the day appointed for the transfer by virtue of Section

3 of the same Act of the assets and liabilities of any of the bodies

comprising the existing Trustee Savings Bank Group to any of the

bodies comprising the new Trustee Savings Bank Group. Under the

further provisions of that Act, members of the public PLC would be invited

to subscribe for shares in the new limited company Trustee Savings Bank

Group PLC.

The applicant contends that he was an ultimate beneficiary and

owner, along with other depositors, of the assets of the Trustee Savings

Bank Northern Ireland and that the implementation of the Trustee

Savings Bank Act 1985 would thereby deprive him of his property rights

and entitlements as such ultimate beneficiary and owner.

The applicant's claim to be an ultimate beneficiary and owner

along with other depositors of the assets of the Trustee Savings Bank

Northern Ireland, derives from the fact that, in his contention, that

bank is an unincorporated association, whose members are those persons

who deposit money with the bank. By virtue of such membership, the

applicant claims, with other depositors who are members, to own the

whole assets of the bank, including the whole surplus assets remaining

after deposits and interest have been paid to those entitled to them.

These contentions were the subject of litigation in Scotland (Ross v.

the Lord Advocate) and in England (Vincent v. the Trustee Savings Bank

Central Board and Others) in proceedings which were consolidated and

resulted in an ultimate appeal to the House of Lords, in respect of

which the judgment of the Court was made available to the public on 31

July 1986. The applicant was not a party to the litigation.

The House of Lords held that the Trustee Savings Banks were

regulated by the Trustee Savings Banks Act 1981 and that depositors

with any one of the banks comprising the Trustee Savings Banks could

have no rights other than such as were conferred upon them by the Act,

by the rules of the banks, and by virtue of their contract with the

bank with which they had a deposit. Having construed the relevant Act

and rules and examined the contractual relationship in the cases

before it, the House of Lords concluded that the depositors had no

proprietory interest in the surplus assets of the banks and could not

therefore complain of the transfer of those assets to the Trustee

Savings Bank Group PLC.

In the course of his judgment, Lord Templeman held that the

assets of the Trustee Savings Banks belonged to the State, subject to

the contractual right of depositors to the return of their deposits

and interest thereon and subject to the powers and duties from time to

time conferred and imposed by Parliament or the National Debt

Commission and the Trustee Savings Banks Central Board, the latter two

institutions both being institutions of the State.

The applicant contends that the opinion of Lord Templeman that

the assets of the Trustee Savings Bank belong to the State failed to

give any definition of that word, which could arguably include all

citizens of the United Kingdom, including the applicant and his fellow

depositors in the Trustee Savings Bank Northern Ireland. The

applicant contends that, in the absence of a clear definition by the

House of Lords in the above litigation of the expression "the State",

the question as to the precise legal ownership of the assets of the

Trustee Savings Bank Northern Ireland is left uncertain. Further, and

alternatively, the applicant contends that the decision of the House

of Lords is wrong in law.

The applicant has not taken legal proceedings in Northern

Ireland in relation to his complaints, because he states that "it is

believed that the said decisions of the House of Lords in the cases

mentioned above are for practical purposes likely to be effective in

so far as the Trustee Savings Bank Northern Ireland is concerned".

COMPLAINTS

The applicant complains that he is deprived of his possessions

by virtue of the provisions of the Trustee Savings Banks Act 1985, and

that that Act is discriminatory against him and other depositors with

the Trustee Savings Bank Northern Ireland. The applicant contends

that his rights under Article 1 of Protocol No. 1, and Articles 6

para. 1, and Articles 13, 14, 17 and 18 of the Convention have been

violated.

THE LAW

1. The applicant complains first that his rights under the

Convention have been violated by virtue of the implementation of the

Trustee Savings Bank Act 1985, whereby the assets of inter alia the

Trustee Savings Bank Northern Ireland have been transferred to Trustee

Savings Bank Group PLC, a company subsequently quoted on the Stock

Exchange. The applicant contends that as a depositor with the Trustee

Savings Bank Northern Ireland he was an owner of the assets of the

bank. He therefore contends that the transfer of the assets and

liabilities of the bank under the provisions of the Trustee Savings

Banks Act 1985 is contrary to a variety of provisions, including

Article 1 of Protocol No. 1 (P1-1), which protects the peaceful enjoyment

of one's possessions.

However, the Commission notes that, following the judgment of

the House of Lords in the cases of Ross v. the Lord Advocate and

Vincent v. the Trustee Savings Banks Central Board and Others, it was

held that depositors with the various Trustee Savings Banks in the

United Kingdom did not own the assets and liabilities of those banks,

which belonged to the State. The applicant contends that the judgment

of the House of Lords is either wrong in law on this point, or that

the words "the State" should be interpreted so as to include, inter

alia, the applicant, with the result that his property rights were

interfered with by the operation of the Trustee Savings Banks Act 1985.

The Commission recalls that in accordance with Article 19 (Art. 19) of

the Convention, its task is to ensure the observance of the

engagements undertaken by the High Contracting Parties in the

Convention. Accordingly, it is not competent to deal with an

application alleging that errors of domestic law have been committed

by domestic courts, except where it considers that such errors might

hve 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). In the present case the

Convention provides no reason to put in doubt the finding of English

law that the bank in question was owned by the State. It follows that

this aspect of the application is manifestly ill-founded within the

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

2. In addition, however, the Commission notes that the applicant

contends that the effect of the judgment of the House of Lords may, on

one interpretation, provide the applicant - as a member of the State -

with property interests in the assets of the Trustee Savings Bank

Northern Ireland beyond his deposit with that bank. In this respect,

the Commission recalls that in accordance with Article 26

(Art. 26) of the Convention, it may only deal with a matter after all domestic

remedies have been exhausted according to the rules of international

law.

The applicant has not taken any proceedings to vindicate

his claim. In these circumstances he has failed to satisfy the

requirements of Article 26 (Art. 26) of the Convention. It follows that this

aspect of the complaint must be rejected in accordance with Article 27

para. 3 (Art. 27-3) 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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MCCARTNEY v. THE UNITED KINGDOM

MCCARTNEY v. THE UNITED KINGDOM

LEXI