FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 648/06 by Takahashi SHIMIDZU and Andrew Ivan BERLLAQUE against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 30 March 2010 as a Chamber composed of:

Lech Garlicki , President, Nicolas Bratza , Giovanni Bonello , Ljiljana Mijović , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , judges, and Fatoş Aracı , Deputy S ection Registrar ,

Having regard to the above application lodged on 23 December 2005,

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

The applicants, Mr Takahashi Shimidzu and Mr Andrew Ivan Berllaque , are British nationals who were born in 1982 and 1965 respectively . They live in Gibraltar . Mr Shimidzu was represented before the Cour t by Mr D. Hughes , a barrister practising in Gibraltar ; Mr Berllaque by Mr S. Bossino, a barrister also practising in Gibraltar . They were each assisted by Ms J. Simor and Mr C. Nicholls Q.C., counsel.

The United Kingdom Government (“the Government”) were represented by their Agent, M s E. Willmott of the Foreign Commonwealth Office.

A. The circumstances of the case

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

On 1–3 April 2003, the first applicant, Mr Shimidzu, was tried before a judge and jury in the Supreme Court of Gibraltar on charges of assault occasioning bodily harm, obstructing a police officer and resisting a police officer in the execution of his duty. He was acquitted by the jury after a submission of no case to answer was rejected by the trial judge. When Mr Shimidzu’s counsel made application for costs after the trial, the Chief Justice said:

“But, Mr Hughes, you know that you can’t get costs. I would grant them, if I could, you know that the law is against you.”

When counsel persisted the Chief Justice said:

“You keep trying, Mr Hughes, I understand why you keep trying, but in my opinion it is an unjust system, which says, you can award costs against the defendant on conviction, you cannot award costs in the Supreme Court on acquittal. It is not a just system, but it’s not something that I can get round, however much I would enjoy trying to weave it. I just cannot, and it is a matter for the Legislature, but it is a matter perhaps that the Legislature ought to be invited to give their attention to.”

On 13 – 16 October 2003, the second applicant, Mr Berllaque, was tried before the same court on charges of rape. At the conclusion of the prosecution case, the trial judge upheld a defence submission of no case to answer and, on his direction, the jury acquitted the second applicant.

Mr Shimidzu made a motion to challenge the refusal to award costs. This was referred by the Supreme Court to the Court of Appeal of Gibraltar on 30 September 2003.

Mr Berllaque was given leave to intervene in the proceedings before the Court of Appeal in Mr Shimidzu’s case. Before the Court of Appeal, the applicants argued, inter alia , that the relevant provision of Gibraltarian criminal law, section 232 of the Criminal Procedure Ordinance, violated the Gibraltar Constitution. They relied on sections 1 and 8 of the Constitution. In respect of section 8, they argued that section 232 violated their right to a fair hearing and was a violation of the presumption of innocence. It appears that it was accepted before the Court of Appeal that while section 232 (2) allowed the Supreme Court to order the prosecution to pay costs to an acquitted defendant, all defendants before the Supreme Court would be unable to fulfil the conditions laid down in section 232 (2) since in order for a person to be committed for trial they would have to be detained in custody or bound by recognizance (see section 232 (2) (a) below). The Court of Appeal unanimously rejected the applicant’s submissions in respect of the presumption of innocence and the prohibition on discrimination contained in section 1. By a majority, it found that section 232 violated the right to a fair hearing contained in section 8.

The Attorney-General for Gibraltar appealed to the Judicial Committee of the Privy Council. On 28 June 2005, the Privy Council allowed the appeal, holding that section 232, while unattractive and lacking even-handedness, did not violate the Constitution. This unattractiveness was relieved by the fact that the subsection (1) of the section, allowing the prosecution to claim costs from a convicted defendant, was a dead letter. The Privy Council, relying on this Court’s rulings in Masson and Van Zon v. the Netherlands , judgment of 28 September 1995, Series A no. 327 ‑ A, §§ 48-49 and Lutz v. Germany , judgment of 25 August 1987, Series A no. 123, § 59, found that Article 6 of the Convention did not require a discretion to award costs to an acquitted defendant. While an even-handed discretionary power to order reimbursement of costs incurred by a successful prosecutor or a successful defendant would be desirable, it was not correct to find, as the Court of Appeal had, that such a power was universal among Western European countries. The principle of equality of arms sought to ensure that a defendant did not suffer an unfair procedural disadvantage but did not require that the situations of the prosecutor and defendant should be assimilated and neither applicant had been able to show any procedural disadvantage in the conduct of the trial from the inability to recover his costs. In respect of the presumption of innocence (and referring to this Court’s findings in Lutz , cited above; Leutscher v. the Netherlands , judgment of 26 March 1996, Reports of Judgments and Decisions 1996 ‑ II ; and Minelli v. Switzerland , judgment of 25 March 1983, Series A no. 62), the Privy Council found that where the domestic court had a discretion to order costs against a prosecutor in favour of an acquitted defendant, the court should not refuse to make such an order in terms which threw doubt on the presumption of innocence. However, where domestic law grant ed no discretion and did not permit the making of an order , the failure to make such an order could not be rationally understood as throwing doubt on the defendant’s innocence.

B. Rele vant domestic law and practice

1. The Constitution of Gibraltar

Section 1 of the Gibraltar Constitution Order 1969 (now superseded by a 2006 Order), in so far as it is relevant, provided as follows:

“It is hereby recognised and declared that in Gibraltar there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms, namely―

(a) the right of the individual to life, liberty, security of the person and the protection of the law; ...

...and the provisions of this Chapter shall have effect for the purpose of affording protection to the said rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.”

Section 8 (1) and (2), insofar as they are relevant, provided as follows:

“ “Provisi ons to secure protection of law

8.(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

(2) Every person who is charged with a criminal offence ―

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

...

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense...”

Sections 6 and 7 also provided protection against deprivation of property.

2. T he Criminal Procedure Ordinance 1952

Part XI of the Ordinance governs costs and other ancillary orders in criminal cases.

Section 229, governing the award of costs by M agistrates ’ C ourts, so far as it is relevant, provides:

“(1) On the summary trial of an information the magistrates ’ court shall have power to make such order as to costs ―

(a) on conviction, to be paid by the defendant to the prosecutor; and

(b) on dismissal of the information, to be paid by the prosecutor to the defendant, as it thinks just and reasonable:

Provided that ―

(i) where under the conviction the court orders payment of any sum as a fine, penalty, forfeiture or compensation, and the sum so ordered to be paid does not exceed £1, the court shall not order the defendant to pay any costs under this subsection unless in any particular case it thinks fit to do so;

(ii) and where the defendant is a child or young person, the amount of the costs ordered to be paid by the defendant himself under this subsection shall not exceed the amount of any fine ordered to be so paid.

(2) The court shall specify in the conviction, or, as the case may be, the order of dismissal, the amount of any costs that it orders to be paid under subsection (1).

(3) Where examining justices determine not to commit the accused for trial on the ground that the evidence is not sufficient to put him upon his trial, and are of opinion that the charge was not made in good faith, they may order the prosecutor to pay the whole or any part of the costs incurred in or about the defence.”

At the relevant time, section 232, governing the award of costs by the Supreme Court, provided:

“(1) The Supreme Court may, if it thinks fit, order any person convicted before it to pay the whole or any part of the costs incurred in or about the prosecution and conviction, including any proceedings before the examining justices.

(2) Where any person is acquitted on indictment, then, if ―

(a) he has not been committed to or detained in custody or bound by recognizance to answer the indictment; or

(b) the indictment is for an offence under the Merchandise Marks Ordinance;

(c) the indictment is by a private prosecutor for the publication of a defamatory libel or for any corrupt practice within the meaning of the House of Assembly Ordinance,

the Supreme Court may order the prosecutor to pay the whole or any part of the costs incurred in or about the defence, including any proceedings before the examining justices.

(3) Costs payable under this section shall be taxed by the Registrar.”

Section 231(1) was repealed by the Criminal Procedure (Amendment) Ordinance 2005 with effect from 22 December 2005.

COMPLAINTS

The applicants complain ed first, under Article 6 of the Convention that the prohibition on the Supreme Court of Gibraltar awarding costs in their favour, in circumstances where the same court has the power to grant costs in favour of the prosecution, is a violation of their right to a fair trial.

Second, they complained under Article 1 of Protocol No. 1 that their obligation to pay their own costs had pecuniary consequences for them since given the nature of the charges against them they had no choice but to use qualified legal representatives. In effect, the State required the applicants to pay out money as a consequence of its decision to prosecute them. They further considered that it was unnecessary and disproportionate for the Supreme Court not to award them their costs. There was no justification for the Supreme Court having no power to award costs in favour of acquitted defendants and, as a result, they had been arbitrarily deprived of property.

Thirdly, they complained of a violation of Article 14 when taken with Article 6 and Article 1 of Protocol No. 1. In this respect, they submit that there is an unjustified difference in treatment between the prosecution and the defence. They further submitted that there is also an unjustified difference in treatment between defendants in Magistrates’ Courts (who can recover their costs when acquitted) and defendants tried on indictment in the Supreme Court.

THE LAW

Article 6 of the Convention, where relevant, provides as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;...”

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of Protocol No. 1 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 Court observes that the applicants rely on Article 6 and Article 1 of Protocol No. 1 separately and make additional complaints under Article 14 read in conjunction with those Articles. In this respect, the Court recalls its constant case-law to the effect that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘ the enjoyment of the rights and freedoms ’ safeguarded by those provisions . The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall ‘ within the ambit ’ of one or more of the Convention Articles (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01 , § 39 , ECHR 2005 ‑ X ; Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 30 , § 9 , Series A no. 6 ). For this reason, and in light of the parties’ submissions (summarised below), the Court considers that the primary issues which arise for examination are first, whether the facts of the case fall within the ambit of Article 6 and second, whether they fall within the ambit of Article 1 of Protocol No 1. It will examine each of these questions in turn.

A. Whether the facts of the case fall “within the ambit” of Article 6

1. The parties’ submissions

Relying on Masson and Van Zon and Lutz , both cited above, the Government argued that Article 6 did not confer a right on a defendant in criminal proceedings to recover his or her legal costs after an acquittal on a criminal charge. The present case did not fall within the ambit of Article 6 for the following reasons. First, Article 6 protected procedural fairness, not the substance of a person’s entitlements. The absence of any right to recover costs as a matter of domestic law did not make Article 6 § 1 applicable ( Leutscher v. the Netherlands , 26 March 1996, § 24 , Reports of Judgments and Decisions 1996 ‑ II ). Second, Article 6 § 1 in its criminal aspect was concerned with the determination of a criminal charge and did not extend to matters that post-dated the determination of such charge ( X. v. Germany , no. 438/70, Commission decision of 2 October 1971, (1971) 39 C.D. 20). Third, the present case was different from the situation where a domestic court had the power to award costs but refused to do so on the basis that it believed the defendant to be guilty; the latter would be within the ambit of Article 6 not because the domestic court had decided costs, but because it had violated the presumption of innocence as guaranteed by Article 6 § 2. There had been no such suggestion of guilt in respect of the present applicants. Fourth, the applicants’ arguments were in conflict with Article 6 § 3 (c) of the Convention. The provision of a right to free legal assistance for someone who did not have sufficient means to pay for it assumed that it was permissible for national law to provide that those persons who did have sufficient means should pay the costs of their lawyers themselves. Fifth, there was no arguable interference with the applicants’ right of access to court: the present applicants instructed lawyers notwithstanding section 232(1). Sixth, there could be no suggestion that the refusal to award costs amounted to a penalty ( Leutscher , cited above, § 29).

The applicants replied that they had not argued that there was any right under Article 6 to be awarded costs, but rather that the absence of a discretionary power to award costs to an acquitted defendant, even where the trial court considered that necessary for the requirements of fairness, was unfair and thus fell within the ambit of Article 6. This was recognised by analogy in the terms of Article 6 § 3 (c). The applicants relied on the Court’s observation in Granger v. the United Kingdom , 28 March 1990, § 47, Series A no. 174 that “some means should have been available to the competent authorities, including the High Court of Justiciary in the exercise of its overall responsibility for ensuring the fair conduct of the appeal proceedings, to have the refusal of legal aid reconsidered”. In their case, the present applicants argued that the impossibility of a defendant ever being awarded his costs after acquittal had the effect of rendering the procedure potentially unfair and potentially in breach of the principle of equality of arms. As in Granger the trial court in Gibraltar should have had some means available to it to award costs in favour of the applicants, particularly when the trial judge had expressed the view that it was unfair not to do so.

The Government, in their final observations, submitted that the applicants’ analogy with Granger was incorrect as the question in that case was whether what had happened to the applicant was in accordance with the requirements of Article 6 § 3 (c). In the present case, Article 6 could not apply simply because one of the two trial judges had observed, in an informal exchange with counsel, that the law was unfair; this comment had not been made in the context of judicial determination of whether there had been a breach of Article 6.

2. The Court’s assessment

Despite the applicants’ submissions to the contrary, the Court does not find the facts of their case fall within the ambit of Article 6 for the following reasons.

The Court recognises that the applicants have not sought to argue that the Court should depart from its ruling in Masson and Von Zon , cited above, § 49, that “the Convention does not grant to a person ‘charged with a criminal offence’ but subsequently acquitted a right ... to reimbursement of costs incurred in the course of criminal proceedings against him”. Instead, they have argued that the absence of a discretionary power to award costs is unfair and that this unfairness is sufficient to bring their case within the ambit of the right to a fair trial as guaranteed by Article 6. However, the Court finds that this is, in essence, the same as suggesting that Article 6 contains a right to such costs. A finding that there should be such a discretionary power (or that the absence of such a power is unfair within the meaning of Article 6) would, in effect, create the right for an acquitted defendant to request such costs and, if the request was refused, to complain that costs ought to have been awarded (compare Werner v. Austria , 24 November 1997, § § 32-40 , Reports of Judgments and Decisions 1997 ‑ VII where the Court found the civil limb of Article 6 § 1 to be applicable to compensation proceedings because there was a right (and not a discretion) in Austrian law to compensation for detention pending trial if the person was acquitted or criminal proceedings against him were discontinued). As the Government have observed, the absence of such a right does not make Article 6 § 1 applicable and, more tellingly, to interpret Article 6 to the contrary would be in conflict with Article 6 § 1 (3)(c). That Article guarantees free legal assistance to those without sufficient means to pay for it. The inclusion of that guarantee in Article 6 must imply that a trial will not be unfair simply because a State requires those with sufficient means to pay for their own representation.

In this respect, the Court also agrees with the Government that the fact that the trial judge in Mr Shimidzu’s case considered the inability of the applicant to recover his costs to be unfair cannot be said to imply a finding that each applicant’s trial had been unfair. The Court can find nothing in the case-file which would suggest that the duty of each applicant to bear his own costs caused any prejudice to their defence or that, as a result, each trial was unfair. The Court also notes the applicants have argued that the impossibility of a defendant who is tried on indictment ever being awarded his costs has the effect of rendering the procedure potentially unfair and potentially in breach of the requirement of equality of arms. However, in the Court’s view, this amounts to an attempt to challenge section 232 in abstracto . What is important is whether such unfairness actually occurred and whether the principle of equality was actually breached: neither is made out on the facts of each case.

Finally, the Court does not find that its observations in Granger provide any support for the applicants’ position. That case was about whether the interests of justice required the provision of legal aid for the purposes of the Mr Granger’s appeal against conviction, when that conviction had led to his being sentenced to five years’ imprisonment and one of the grounds of appeal raised an issue of complexity and importance. The Court’s observations at § 47 in Granger were made first, in the context of its finding that the legal-aid scheme as it operated in Scotland at the time did not comply with the requirements of Article 6 § 3 (c) and second, in the context of its finding that responsibility for the failure to review the refusal of legal aid was not limited to the Legal Aid Committee, which had made the original decision, but also the High Court of Justiciary. The Court finds that no analogy can be drawn between, on the one hand, the responsibility of domestic courts to ensure that the right to legal assistance as set out in Article 6 § 3 (c) is respected and, on the other, the responsibility of the Gibraltarian courts to ensure the fairness of the criminal proceedings when, as the Court has found, the fairness of those criminal proceedings did not require the reimbursement of the applicants’ costs.

For these reasons, the Court finds that the applicants’ complaints relating to Article 6, either alone or read in conjunction with Article 14, must be r ejected as being manifestly ill- founded pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Whether the facts of the case fall “within the ambit” of Article 1 of Protocol No. 1

The Court recalls that the Commission, in its first admissibility decision in the above-cited Masson and Von Zon case ( M. v. the Netherlands , no. 15346/89 , 1 April 1992, unreported), considered the applicant’s complaint that the rejection of his request for compensation of his lawyers’ fee also amounted to a violation of Article 1 of Protocol No. 1. The Commission, in declaring that complaint to be manifestly ill-founded, found that a claim or debt could constitute possessions within the meaning of Article 1 of Protocol No. 1. However, it also noted that in that case the applicant had “not shown that he was at any time entitled to compensation on any ground whatsoever”. Since the applicant’s claim for compensation for legal costs could not be considered to be based on an established right, the decision not to award him compensation could not have had the effect of depriving him of property of which he was the owner.

The Court recognises that, in the present case, the complaints have been put on a somewhat different basis. The applicants have not argued they had an established right to their costs; on the contrary, they have argued that it is the absence of such a right which is in violation of the Convention, particularly when, in the Supreme Court, the prosecution can recover its costs from convicted defendants and, in the Magistrates’ Court, an acquitted defendant can recover his costs.

The Court also recalls that in Stec , cited above, the Grand Chamber considered the applicability of Article 1 of Protocol No. 1 to non-contributory welfare benefits. The applicants, both men and women, had argued that they had been awarded a lower level of benefit than would have been awarded to a member of the opposite sex. This was found to fall within the scope of Article 1 of Protocol No. 1, which in turn was sufficient to render Article 14 of the Convention applicable. At paragraph 55 of its decision the Grand Chamber found that:

“ In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains , he or she would have had a right, enforceable under domestic law, to receive the benefit in question ...”

The Court is not persuaded that this test is met in the present case. Even assuming, contrary to the Government’s submission, that the applicants’ status as defendants before the Supreme Court is a personal characteristic covered by Article 14, it is far from clear that, but for this status, they would have had a right, enforceable under Gibraltarian law, to receive their costs. As was noted by the Privy Council, the right of the prosecution to recover its costs from a convicted defendant was a dead letter. In any event, section 232(2) only gave the Supreme Court discretion to award the prosecution its costs: it did not give the prosecution a right to those costs. More importantly, as the applicants themselves have recognised, the same position prevailed in respect of acquitted defendants in the Magistrates’ Court. Such defendants had no right to their costs: there was only a discretionary power for the Magistrates under section 229 of the Criminal Procedure Ordinance to make such an order as to costs as it thought just and reasonable. Therefore, in contrast to the applicants in Stec , where there would have been a right to a benefit for each applicant but for his or her sex (a discriminatory ground clearly covered by Article 14), the present applicants have not demonstrated that there was a right to costs in criminal proceedings in Gibraltar, which they would have enjoyed but for the fact that they had been tried and acquitted in the Supreme Court. For these reasons, the Court considers that the facts of the case do not fall within the ambit of Article 1 of Protocol No. 1.

It therefore finds that the applicants’ complaints relating to Article 1 of Protocol No. 1, either alone or read in conjunction with Article 14, must be also r ejected as being manifestly ill- founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Lech Garlicki Deputy Registrar President