FOURTH SECTION

DECISION

Application no . 74946/10 Lesley BROGAN and Alistair BROGAN against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 13 May 2014 as a Chamber composed of :

Ineta Ziemele, President, George Nicolaou, Ledi Bianku, Nona Tsotsoria, Zdravka Kalaydjieva, Paul Mahoney, Faris Vehabović, judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 20 December 2010 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. T he applicants, Mr Alistair Brogan and Ms Lesley Brogan , are British nationals, who were born in 1964 and live in Doncaster . They are represented before the Court by Ms Matwala Vyas of Matwala Vyas LLP, a firm of solicitors based in Essex .

2. The United Kingdom Government (“the Government”) are represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 16 August 2003 the first applicant purchased Dove Cottage (“the property”) , apparently with the assistance of a mortgage in favour of GMAC-RFC. The property subsequently became the applicants ’ main residence. Although the second applicant claims that she used some of her funds to purchase the property, it was registered in t he first applicant ’ s sole name.

5. On 30 August 2006 the first applicant entered into a second mortgage with Kensington Mortgage Company Limited (“KMCL”). The total amount loaned was GBP 26,875.00.

6. T he first applicant fell into mortgage arrears in or around mid -2008 and KMCL commenced possession proceedings against him in the County Court.

7. Around this time, the first applicant ’ s solicitor became concerned that he lacked the capacity to manage his own affairs. Medical reports indicated that he had Asperger ’ s Syndrome and a schizophrenic ill ness. On 20 August 2008, a few days after the claim form was issued in the County Court by KMCL, the solicitor applied to the Court of Protection for an order authorising her to act as an Interim Deputy for Property and Affairs (“Interim Deputy”) to defend, inter alia , the possession proceedings on his behalf. The Court of Protection made an order o n 24 September 2008 authorising her to take control of his property and affairs and to exercise the same power over them as a beneficial owner. In doing so, the court imposed a security bond requirement on the I nterim Deputy in the sum of GBP 50,000 in favour of the first applicant.

8. The Interim Deputy thereafter informed KMCL that there was money available to pay the arrears and make advance payments.

9 . The possession claim was heard on 6 October 2008. The first applicant did not attend and was not represented, although a letter from him was submitted to the court. The contents of that letter are not known. KMCL indicated to the court that the first applicant had made no payments on the mortgage since 11 April 2008. Consequently, the District Judge ordered that he give KMCL possession of the property before 3 November 2008.

10. The Office of the Public Guardian commissioned a Court of Protection Visitor to meet with the applican ts and the Interim Deputy on 19 March 2009. The visitor was (incorrectly) told by the Interim Deputy that all payments on the mortgage were up to date. H e also noted that the applicants ’ situation was “very difficult and unstable” and seemed to be “on the edge of crisis” as the second applicant was unwell and might not be able to continue to care for the first applicant.

11. In mid-2009 the second applicant complained to the Office of the Public Guardian about the conduct of the Interim Deputy. In particular, she claimed that the Interim Deputy had failed to use funds of GBP 25,000 to discharge the mortgage arrears and that she had been on sick leave for five weeks and was not dealing with her deputyship duties. KMCL also complained about the Interim Deputy ’ s conduct, both to the Office of the Public Guardian and to the Law Society. They claimed that they had discontinued possession proceedings after the Interim Deputy had verbally agreed a settlement with them but that she had subsequently reneged on that agreement by insisting, without foundation, that KMCL pay her costs. Following the complaints, the Office of the Public Guardian launched an investigation into the activities of the Interim Deputy.

12. The second applicant subsequently withdrew her complaints against the Interim Deputy unreservedly. In a report dated 18 July 2009 the Office of the Public Guardian found that there had been a dispute between KMCL and the Interim Deputy which should be resolved between the parties. It also found that there had been a dispute between the Interim Deputy and her firm which resulted in her leaving the firm and working from home. Following a period of claimed ill-health, she had resumed activity in the affairs of the first applicant. The Office of the Public Guardian therefore closed its investigation.

13. On 16 December 2009 KMCL obtained a warrant for possession from the County Court. On the same date, a Notice of Eviction was sent to the first applicant “and any other occupiers” at Dove Cottage, stating that the eviction would take place on 14 January 2010.

14. By 6 January 2010 an application had been made on the first applicant ’ s behalf to suspend the eviction. A further application appears to have been made to “withdraw” the warrant of possession.

15. Both applications came before a district judge on 8 January 2010, on which date the first applicant appears to have been represented by the Interim Deputy. The applications were adjourned.

16. On 25 January 2010 the Court of Protection ordered a report into the management and administration of the property and affairs of the first applicant by the Interim Deputy. The report was prepared by the Office of the Public Guardian and published on 21 April 2010. The report noted that on her appointment, the Interim Deputy had advised KMCL that there was sufficient money in the Brogan ’ s client account to pay their arrears. However, KMCL informed the Office of the Public Guardian that the Interim Deputy had “made no attempt to pay the outstanding arrears or to ensure that mortgage payments are going forward”. In fact, she had entered into a verbal agreement to pay the arrears but then reneged on the agreement leaving KMCL no alternative but to seek possession. The report concluded that the Interim Deputy was struggling with her general, day-to-day duties and that there was a worrying – and unexplained – disparity as to the disbursement of approximately GBP 27,000 received into her employer ’ s client account in September 2008. Although the Court of Protection Visitor ’ s Report stated that all payments w ere up to date and that the GBP 25,000 received in September 2008 had been used in paying the arrears of the mortgage, in mid-2009 those funds were still in the client account. The report concluded that the first applicant ’ s best interests had not been served by the Interim Deputy.

17. On 21 May 2010 the adjourned application s to suspend and withdraw the warrant for possession were heard by a district judge. Both parties were represented by counsel at the hearing. However, the applications were dismissed and t he possession warrant was returned to the bailiff for a new eviction date to be set.

18. On the same day t he Interim Deputy ’ s authority to act in the possession proceedings came to an end .

19. Nevertheless, it appears that the Interim Deputy filed an application for permission to appeal against the district judge ’ s decision of 21 May 2010 on behalf of the first applicant without any authority to do so. The application was dismissed on 28 May 2010 at a hearing at which both parties were represented.

20. On 1 June 2010 the applicants were evicted from the property.

21. On 4 June 2010 the Interim Deputy made a further application to set aside the first applicant ’ s credit agreement with KMCL on the ground, inter alia , that he ha d not ha d the mental capacity to enter into it in 2006. This application was not made with the authority of the Court of Protection. On the same date the second applicant applied to join the application on the ground that she had also been in occupation of the property, she had an interest in the property and she was left homeless after KMCL were granted possession. She wrote to the court, setting out details of the first applicant ’ s mental health problems and outlining her own health concerns (including severe spond y losis, sciatica, heart disease, angina and depression).

22. On 8 July 2010 , the Court of Protection revoked the appointment of the Interim Deputy with immediate effect. However, she was appointed as the first applicant ’ s Deputy limited to the single issue of making an application on his behalf for public funding to apply for judicial review of the decision of 28 May 2010. This appointment was to expire on 28 October 2010 unless extended by the Court.

23. On 14 July 2010 , following a hearing at which the parties were represented by counsel, the District Court Judge dismissed the application to set aside the credit agreement and join the second applicant to the proceedings. The second applicant was ordered to pay KMCL ’ s costs of the application, which were assessed in the sum of GBP 5,765.06. Permission to appeal was refused.

24. On 3 August 2010, t he applicants, through the Interim Deputy (again acting without authority) , sought to appeal against the order of the District Court Judge. In particular, they submitted that there had been no consideration of their rights under Article 8 of the Convention.

25. On 30 November 2010 the Court of Protection gave the applicants ’ daughter, Kate, authority to act as the first applicant ’ s litigation friend at the appeal hearing.

26. The appeal was heard on 3 December 2010. The judge found that the first applicant was not validly a party to the purported appeal as the Interim Deputy had not ha d authority to issue it. The second applicant and her representative were not able to attend the hearing owing to difficult weather conditions. Her appeal was dismissed as totally without merit and she was ordered to pay costs of GBP 4,863. The Interim Deputy was joined to the proceedings and was ordered personally to pay to KMCL costs in excess of GBP 10,000.

27. According to the applicants, f ollowing the eviction the first applicant spent ten days without his maintenance medication, which caused a temporary deterioration in his condition. The applicants initially lived with their youngest daughter in a van before all three moved to a tent in another daughter ’ s garden. They stated that d uring this period the first applicant attempted suicide on two separate occasions. The family later stayed in a hotel for 10 days before moving into a rental property from October 2010 onwards .

28. The medical evidence submitted to the Court indicates that the first applicant has a history of mental illness and had made a number of suicide attempts prior to the eviction proceedings which are the subject of his complaint to the Court. While there is some evidence to support the assertion that he also attempted suicide following the eviction, this attempt appears to have taken place while he was in custody and psychiatrists were establishing his fitness to plead in respect of a prosecution for conspiracy to defraud.

B. Relevant domestic law and practice

1. Mental Capacity Act 2005

29. Section 16 permits the C ourt of Protection to appoint a D eputy to act on behalf of a person who lacks capacity in relation to matters concerning either his personal welfare or his property and affairs. However, the powers conferred on the D eputy should be as limited in scope and duration as is reasonably practicable in the circumstances and the court may revoke the appointment of a D eputy or vary the powers conferred on him if it is satisfied that he has behaved, is behaving, or is proposing to behave in a way that contravenes the authority conferred on him by the court or is not in the protected party ’ s best interests.

30. Pursuant to section 18, the D eputy ’ s powers extend, inter alia , to the discharge of the protected person ’ s debts and obligations, whether legally enforceable or not.

31. Section 19(6) provides that the D eputy is to be treated as the protected person ’ s agent in relation to anything done or decided by him within the scope of his appointment.

32. The Office of the Public Guardian is an executive agency of the Ministry of Justice which implements the Mental Capacity Act 2005 by administering powers of attorney, supervising D eputies who manage the affairs of others and investigating and acting on allegations of abuse by attorneys and Deputies.

2. Security bond entered into by the Interim Deputy

33 . Pursuant to Regulation 33(1) of The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (“the 2007 Regulations”) the court may order a person to give to the Public Guardian security in the form of a bond for the discharge of his functions.

34 . Pursuant to Regulation 36 of the 2007 Regulations, the court may order the enforcement of the security.

3 . Repossession proceedings

35. Possession claims are governed by Part 55 of the Civil Procedure Rules and Practice Direction 55A. With regard to land subject to a mortgage, the Practice Direction provides that at the hearing the claimant ’ s evidence should include the amount of any rent or mortgage arrears and interest on those arrears. These amounts should, if possible, be up to date to the date of the hearing (if necessary by specifying a daily rate of arrears and interest).

36. If relevant , the defendant should give evidence of the amount of any outstanding social security or housing benefit payments relevant to rent or mortgage arrears and the status of any claims for social security or housing benefit about which a decision has not yet been made or any applications to appeal or review a social security or housing benefit decision where that appeal or review has not yet concluded.

4. The power of the domestic courts to postpone eviction

37. Section 36 of the Administration of Justice Act 1970 provides that:

“ (1) Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession of the mortgaged property, not being an action for foreclosure in which a claim for possession of the mortgaged property is also made, the court may exercise any of the powers conferred on it by subsection (2) below if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage.

(2)The court—

(a) m ay adjourn the proceedings, or

(b) on giving judgment, or making an order, for delivery of possession of the mortgaged property, or at any time before the execution o f such judgment or order, may—

(i) stay or suspend executio n of the judgment or order, or

(ii) postpone the date for del ivery of possession,

for such period or periods as the court thinks reasonable.

(3)Any such adjournment, stay, suspension or postponement as is referred to in subsection (2) above may be made subject to such conditions with regard to payment by the mortgagor of any sum secured by the mortgage or the remedying of any default as the court thinks fit.”

5 . The position of the second applicant

38. Pursuant to section 55(2) – (3) of the Family Law Act 1996, which applies if a mortgagee of a dwelling house brings an action in any court for the enforcement of its security,

ʺ (2) A connected person who is not already a party to the action is entitled to be made a party in the circumstances mention in subsection (3).

(3) The circumstances are that —

(a) the connected person is enabled by section 30(3) ... to meet the mortgagor ’ s liabilities under the mortgage;

(b) he has applied to the court before the action is finally disposed of in that court; and

(c) the court sees no special reason against his being made a party to the action and is satisfied —

(i) that he may be expected to make such payments or do such other things in or towards satisfaction of the mortgagor ’ s liabilities or obligations as might affect the outcome of the proceedings; or

(ii) that the expectation of it should be considered under section 36 of the Administration of Justice Act 1970. ʺ

COMPLAINTS

39. The applicants complain ed under Article 3 of the Convention that the eviction and subsequent period of homelessness constituted inhuman and degrading treatment. They also complain ed under Article 6 § 1 of the Convention that they did not have the opportunity to have the proportionality of the eviction assessed before an independent and impartial tribunal. Finally, t he applicants complain ed under Article 8 of the Convention that in view of their personal circumstances the ir eviction violated their right to respect for their family and private life, home and correspondence and that there was no domestic procedure available to them by which they could challenge the eviction on the basis of those personal circumstances.

THE LAW

1. Article 8 of the Convention

40. T he applicants complained under Article 8 of the Convention that the eviction violated their right to respect for their family and private life, home and correspondence and that there was no procedure available to them which permitted them to challenge the eviction on the basis of their personal circumstances. In particular, they contended that the respondent State was under an obligation to protect a person such as the first applicant who was suffering from mental illness.

41. Article 8 of the Convention 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 national security, public safety or 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.”

42 . T he Government submitted that the complaint under Article 8 of the Convention was inadmissible on grounds of non-exhaustion. In this regard, they identified two distinct complaints; namely, the complaint about the grant by the national courts of an order and/or warrant for possession in favour of the mortgage company, KMCL, and the complaint directed against the actions of the Interim Deputy. They argued that the applicants had failed to exhaust domestic remedies in respect of both complaints.

43. In respect of the possession proceedings, the Government submitted that the first applicant could have brought an application for an adjournment, stay, suspension or postponement under section 36 of the 1970 Act (see paragraph 34 above). The applicants had submitted throughout the proceedings that they were willing to pay the monthly mortgage payments together with the arrears and they further asserted that on the morning of the eviction they were able to raise sufficient funds to pay off the mortgage debt completely.

44. Moreover, the second applicant could have applied to be joined as a party under section 55 of the 1996 Act and, as such, she would have been entitled to bring an application under section 36 of the 1970 Act in her own right.

45. Insofar as the applicants complained about the actions of the Interim Deputy, the Government submitted first, that she was not an emanation of the State; secondly, that the second applicant had withdrawn all of her complaints against the Interim Deputy, with the result that the Office of the Public Guardian closed their investigation into the matter; and thirdly, that any person suitably authorized to act on the first applicant ’ s behalf could have either applied to the Office of the Public Guardian for the forfeiture of the bond on the basis that the Interim Deputy had acted in breach of duty, or sued the Interim Deputy in negligence, seeking damages for any loss allegedly sustained in the discharge of her duties.

46. In response, the applicants denied that they had the resources to pay the mortgage installments together with the arrears. They therefore submitted that section 36 of the 1970 Act would not have amounted to an effective remedy. In any case, such a remedy was illusory as it did not permit the domestic courts to consider their personal circumstances.

47. The applicants further submitted that even if the second applicant had been joined in the possession proceedings, there was very little that they could have done to avoid eviction.

48. The rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. R ecourse should therefore be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. As a consequence, complaints intended to be made before this Court should have first been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law , and any procedural means that might prevent a breach of the Convention should have been used ( Akdivar and Others v. Turkey , 16 September 1996, § 66 , Reports of Judgments and Decisions 1996 ‑ IV and Cardot v. France , 19 March 1991, § 34 , Series A no. 200 ). The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see McFarlane v. Ireland [GC] , no. 31333/06, § 107 10 September 2010 and T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 55).

49. The Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (see, inter alia , Pellegrini v. Italy (dec.), no. 77363/01, 26 May 2005; MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October 2005; and Milosevic v. the Netherlands (dec.), no. 77631/01, 19 March 2002). However, an applicant is not required to use a remedy which, “according to settled legal opinion existing at the relevant time”, offers no reasonable prospects of providing redress for his complaint (see D. v. Ireland (dec.) , no. 26499/02, §§ 89 and 91, 28 June 2006 and Fox v. the United Kingdom (dec.) , § 42). Equally, an applicant cannot be regarded as having failed to exhaust domestic remedies if he can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he has not used was bound to fail ( Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003 ‑ VI; Salah Sheekh v. the Netherlands , no. 1948/04, §§ 121 et seq., ECHR 2007 ‑ ... (extracts)).

a. The possession proceedings

50. The Court observes that the first applicant was represented throughout the domestic proceedings not only by the Interim Deputy but also – in many of the court hearings – by counsel. Although the second applicant was not represented in these proceedings, the Court notes that in the proceedings at hand her interests could not be distinguished from those of the first applicant.

51 . In any case, the Court notes that at all times during the currency of the possession proceedings it was open to the second applicant to bring an application to be joined as a party to those proceedings under section 55 of the Family Law Act 1996. She did not do so. A section 55 application can only be brought “before the action is finally disposed of” (see paragraph 36 above), whereas the second applicant only applied to be joined on 4 June 2010, some three days following the eviction after the termination of the possession proceedings (see paragraph 21 above). As it is, the first applicant remained the sole defendant throughout the possession proceedings.

52 . While in practice it might not have been reasonable to have expected the first applicant, who was lacking legal capacity, to have brought personally, outside the framework of his legal representation by the Interim Deputy and by counsel, an application under section 36 of the 1970 Act, had the second applicant brought a successful section 55 application she could have done so in her own right.

53 . In this regard, the Court observes that the applicants have not substantiated their claim that these remedies would not have been effective in practice. Although they submitted before this Court in their reply to the Government ’ s observations that they did not have the funds to pay off the mortgage arrears, this contradicted the position taken by them both in the domestic proceedings and in their application to this Court. It also contradicts the findings of the Office of the Public Guardian in its report of 21 April 2010. By virtue of section 36 of the 1970 Act, the court has a broad discretionary power to adjourn the possession proceedings, to stay or to suspend the execution of any order made for repossession, or to postpone eviction from the property, “for such periods as the court thinks reasonable” (see paragraph 37 above). A successful application under this provision would have given the applicants the opportunity to pay off the mortgage and thus to avoid the eviction, this being the measure which they claim gave rise to a violation of Article 8 of the Convention in their regard.

54 . Bearing in mind that applicants are required to use “any procedural means that might prevent a breach of the Convention” (see paragraph 48 above), the Court finds that insofar as their complaints under Article 8 of the Convention concern the outcome of the possession proceedings, those complaints, irrespective of their merits, are inadmissible for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

b. The Interim Deputy

55. I n the present case cause for concern is provided by the facts underlying the applicants ’ claim that the Interim Deputy had acted inadequately and negligently in the exercise of her duties and thereby prejudiced the first applicant in the repossession proceedings. The Government have submitted that the Interim Deputy was not an emanation of the State. However, while she was a solicitor in private practice – in fact, as the applicants ’ solicitor , she had applied to be authorised to act as Property and Affairs Deputy for the f irst applicant (see paragraph 7 above) – she was appointed as Interim Deputy by the Court of Protection and she carried out her duties under the supervision of the Office of the Public Guardian, an executive agency of the Ministry of Justice. Therefore, even if the Interim Deputy was not herself an emanation of the State, the Office of the Public Guardian clearly was.

56. Moreover, the report of 21 April 2010 makes it clear that at the very latest the Office of the Public Guardian knew that the Interim Deputy was not acting in the first applicant ’ s best interests on this date, which was more than one month prior to his eviction on 4 June 2010. Nevertheless, even following the publication of the report on 21 April 2010, the Interim Deputy ’ s appointment was not revoked and her authority to act in the possession proceedings continued until it came to an end on 21 May 2010. She continued to institute proceedings befo re the domestic courts and on 8 July 2010 her appointment was revoked with immediate effect, although it was permitted to continue for the limited purpose of applying for public funding to judicially review the refusal of leave to appeal against the decision not to suspend or withdraw the warrant for possession. It is not clear whether she did this, and her authority to act on behalf of the first applicant ended on 28 October 2010. His daughter, Kate, was thereafter appointed as Litigation Friend by the Court o f Protection (see paragraphs 16 – 25 above).

57. There does not appear to have been any attempt by the Office of the Public Guardian to liaise with the courts dealing with the enforcement proceedings to ensure that the applicants – and in particular the first applicant – were not prejudiced by the errors of the Interim Deputy. This is particularly troubling given that, on account of the particular vulnerability of persons lacking legal capacity, States may have a positive obligation under Article 8 to provide them with specific protection by the law ( Zehentner v. Austria, cited above, § 63 and, mutatis mutandis , Connors v. the United Kingdom , no. 66746/01, § 84, 27 May 2004).

58. However, even though the applicants may have an arguable complaint against the Office of the Public Guardian, the Court can only consider it if they have first exhausted domestic remedies.

59. In this regard, it is not in dispute that the first applicant suffered from sufficiently serious mental health problems to necessitate the appointment of an Interim Deputy to defend the possession proceedings on his behalf. Consequently, it could not be – and has not been – suggested that he himself ought personally to have taken the initiative to complain about or otherwise challenge the actions of the Interim Deputy, although there would presumably have been no obstacle in this regard had his health permitted him and had he wished to do so. However, a complaint could have been made or proceedings could have been brought by any person authorised to act on his behalf. In this regard, it is noted that he did have assistance from family members throughout the legal proceedings. It has already been observed that the second applicant complained to the Office of the Public Guardian in mid-2009, which resulted in an investigation into, and a report upon, the actions of the Interim Deputy, but the investigation was closed when she unreservedly withdrew the complaint (see paragraphs 11 – 12 above). It has not been suggested by the applicants that the complaint was withdrawn because of the inadequate character of the complaints ’ procedure. Therefore, had the second applicant had any subsequent concerns about the actions of the Interim Deputy or the supervisory function of the Office of the Public Guardian, it was at all times open to her (as to any person suitably authorised to act on the first applicant ’ s behalf, such as one of his children) to bring a further complaint, and there is no reason to suppose that it would not have been acted upon in the same way that the first was. Following any such investigation, if the Office of the Public Guardian had any concerns it could have applied to the Court of Protection to have the Interim Deputy discharged and, if loss had been established, applied for the Interim Deputy ’ s bond of GBP 50,000 (see paragraphs 7 in fine , and 33 and 34 above) to be forfeited in favour of the first applicant.

60. Moreover, once the authority of the Interim Deputy came to an end, the applicants ’ daughter was appointed as the first applicant ’ s Litigation Friend (see paragraph 25 above). If she had had any concerns about the previous management of her father ’ s property, she too could have complained to the Office of the Public Guardian.

61. As indicated by the Government, it would also have been possible for the second applicant, the applicants ’ daughter or any other authorised person to have applied to the Office of the Public Guardian for the forfeiture to them of the Interim Deputy ’ s bond ( see paragraph s 7 in fine , and 33 and 34 above ) on the basis that she had acted in breach of duty and caused the first applicant loss. If necessary, separate legal advice could have been taken for the purpose of any such action. Alternatively, following the eviction any person authorised by the applicant could have brought an action in negligence against the Interim Deputy in order to seek damages for any loss sustained. However, there is no evidence to suggest that any such actions were ever brought. In fact, following the withdrawal of the second applicant ’ s complaint to the Office of the Public Guardian, no further complaints were made about the Interim Deputy until the applicants submitted their observations in the proceedings before this Court.

62. Consequently, despite its concerns about the management of the first applicant ’ s affairs, the Court also finds the applicants ’ complaints concerning the Interim Deputy to be inadmissible for failure to exhaust available and adequate domestic remedies i n accordance with Article 35 §§ 1 and 4 of the Convention.

2. Article 6 § 1 of the Convention

63. The applicants complain ed under Article 6 § 1 of the Convention that they did not have the opportunity to have the proportionality of the eviction assessed before an independent and impartial tribunal.

64. Article 6 § 1 of the Convention provides as relevant:

“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. ”

65. The Court considers that the complaint under Article 6 § 1 essentially repeats the applicants ’ complaints under Article 8. It does not, therefore, consider that any separate issue arises under Article 6 § 1 of the Convention.

3. Article 3 of the Convention

66. The applicants complain ed under Article 3 of the Convention that the eviction and subsequent period of homelessness constituted inhuman and degrading treatment.

67. Article 3 of the Convention provides that:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

68 . In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds no appearance of a violation of Article 3 of the Convention arising from these complaints.

For these reasons, the Court unanimously

Declares inadmissible the application.

Françoise Elens-Passos Ineta Ziemele Registrar President