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SEAL v. THE UNITED KINGDOM - 50330/07 [2010] ECHR 1976 (7 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1976.html
Cite as:
[2010] ECHR 1976,
[2011] MHLR 1,
(2012) 54 EHRR 6
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FOURTH
SECTION
CASE OF
SEAL v. THE UNITED KINGDOM
(Application
no. 50330/07)
JUDGMENT
STRASBOURG
7 December
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Seal v. the United
Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
Vincent
Anthony de Gaetano,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 50330/07) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr Robert Edward Seal (“the applicant”), on 13
November 2007.
The
applicant was represented by Fisher Meredith Solicitors, a law firm
based in London. The United Kingdom Government (“the
Government”) were represented by their Agent, Ms J. Gladstone,
of the Foreign and Commonwealth Office.
The
applicant complained that the decision to strike out his civil claim
against the police in respect of alleged assault and false
imprisonment deprived him of access to court as guaranteed by Article
6 § 1 of the Convention. He further complained under Article 6 §
1 together with Article 14 that the Mental Health Act 1983
discriminated against litigants seeking to take legal action arising
from detention under the compulsory powers contained in that Act.
On
13 May 2009 the President of the Chamber decided to give notice of
the application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
The
Equality and Human Rights Commission was granted leave to intervene
in the proceedings as a third party pursuant to Article 36 § 2
of the Convention and Rule 44 § 3 of the Rules of Court.
The
applicant requested an oral hearing but the Chamber decided not to
hold a hearing in the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1944 and lives in Merthyr Tydfil.
A. The background facts
In the early evening of 9 December 1997, the applicant
went to visit his mother at her house in Merthyr Tydfil but could not
park his car because of obstruction by other vehicles. He went into
his mother's house having been unable to alert the owners of other
vehicles by sounding his horn. He decided to telephone the police to
complain about the obstruction and his mother tried to stop him. At
some stage, someone contacted the police and they arrived at the
house some minutes later.
There is a dispute about what occurred subsequently.
The applicant was arrested inside his mother's house for breach of
the peace. He disputes that there were lawful grounds for arresting
him. He was taken outside the house into the street. The police
claimed that at that stage, they intended to take him home but as a
result of what happened outside they decided to remove him in
accordance with section 136(1) of the Mental Health Act 1983 (“the
1983 Act” – see paragraphs 33-36 below).
The applicant was taken to St Tydfil's hospital, less
than a mile away from his mother's home, where he was detained
pursuant to section 136(2) of the 1983 Act and, subsequently, section
2 of the 1983 Act until 18 December 1997, when his release was
ordered by a mental health review tribunal.
B. The domestic proceedings
On 5 August 2003, the applicant's then solicitors
wrote to the police claiming damages on the basis that there was no
justification for the applicant's detention under section 136.
On 8 December 2003, the eve of the expiry of the
relevant limitation period (see paragraph 37 below), the applicant
(who was by then no longer legally represented) issued proceedings in
the County Court seeking damages from the Chief Constable of South
Wales Police for “trespass, assault, wrongful arrest, misuse of
police powers, misuse of section 136 of the 1983 Act, falsehood and
personal injuries sustained” as a result of the events of 9
December 1997. His particulars of claim indicated that:
“At the time of the incident on 9/12/97 at my
mother's house the police at no time inform[ed] me of any arrest or
that I was to be detained pursuant to Section 136 of the Mental
Health Act, 1983. I am aware that the police can only use Section 136
to detain persons found in public places provided that the person to
be detained appears to the police constable to have a mental disorder
and to be in immediate need of care or control and such that it be
necessary to take the person to a place of safety for the protection
of the person detained or for the protection of others. At no stage
did the police find me in a public place, on the contrary I was taken
from a private dwelling by the police to a public place and at no
time could my conduct be construed or considered as that of a
mentally-disordered person. Therefore the use of Section 136 of the
Mental Health Act was unlawful.”
Under section 139(2) of the 1983 Act, the leave of the
High Court was required prior to the commencement of any claim
relating to the exercise of powers under that Act (see paragraph 34
below). The applicant failed to seek High Court leave before
commencing his claim.
On 4 May 2004, the respondent filed both a defence to
the claim on the grounds of section 139(1) of the 1983 Act (see
paragraph 34 below) relying on the absence of allegations of bad
faith or failure to take reasonable care and an application for the
claim to be struck out on the grounds that leave from the High Court,
as required under section 139(2), had not been obtained prior to the
proceedings being brought. The respondent further argued that the
claims in defamation and falsehood were time-barred pursuant to
section 4A of the Limitation Act 1980 (“the 1980 Act” –
see paragraph 38 below).
On 5 July 2004, the County Court ordered that the
claim be struck out on the basis that the proceedings were a nullity
as leave had not been granted by the High Court. The claim in
defamation and malicious falsehood was struck out by consent as the
relevant limitation period had expired in respect of such claims.
On 27 August 2004, permission to appeal the decision
to strike out the claim was granted.
On 18 October 2004, the Circuit Judge varied the order
of the County Court. He reinstated the claim insofar as it related to
events which took place before the applicant was detained and removed
under the 1983 Act. In relation to the applicant's complaints
regarding his detention under the 1983 Act, however, the Circuit
Judge dismissed the applicant's appeal, finding the legal proceedings
in that regard to be a nullity as a result of the failure to obtain
prior leave.
In handing down his judgment, he noted:
“I did consider at one stage whether it would be
open to Mr. Seal simply to make an application to the High Court for
the permission required by section 139 of the Mental Health Act and
then simply apply under the provisions of the [Civil Procedure Rules]
... to add the further claim. However, the defendant will raise the
Limitation Act defence.”
The applicant was granted leave to appeal to the Court
of Appeal.
Before the Court of Appeal, the applicant argued that
the Circuit Judge should have reinstated the whole claim and should
have granted a stay in relation to that part of the complaint
relating to the removal and detention under the 1983 Act until the
necessary leave had been obtained. On 19 May 2005, the
Court of Appeal dismissed the applicant's appeal. Leave to appeal to
the House of Lords was granted.
The argument before the House of Lords focussed on the
consequences in terms of section 139(2) of the 1983 Act of bringing
proceedings without prior leave from the High Court. The respondent
argued that such a failure rendered the proceedings a nullity. The
applicant, on the other hand, argued that lack of leave was a
procedural irregularity which could be corrected.
On 4 July 2007, the House of Lords handed down its
judgment and, by a majority of three to two, dismissed the
applicant's appeal.
Lord Bingham of Cornhill, of the majority, considered
the applicant's argument that section 139(2) infringed his right of
access to court but concluded that this was not an argument that he
could accept. He noted (at paragraph 20):
“The European Court has accepted that the right of
access to the court is not absolute, but may be subject to
limitations: Ashingdane v United Kingdom (1985) 7 EHRR
528, para 57. The protection of those responsible for the care of
mental patients from being harassed by litigation has been accepted
as a legitimate objective: ibid, para 58; M v United Kingdom
(1987) 52 DR 269, 270. What matters (Ashingdane, para 57) is
that the limitations applied must not restrict or reduce the access
left to the individual in such a way or to such an extent as to
impair the very essence of the right. But the threshold for obtaining
leave under section 139(2) has been set at a very unexacting level:
Winch v Jones [1986] QB 296. An applicant with an arguable
case will be granted leave. Mr Seal's undoing lay not in his failure
to obtain leave which he should have had but in his failure to
proceed within the generous time limit allowed by the 1980 Act, which
would not itself fall foul of article 6: Stubbings v United
Kingdom (1996) 23 EHRR 213.”
Similarly, Lord Brown of Eaton-under-Heywood
considered that Parliament had made it clear under section 139 that
relevant proceedings brought without leave were a nullity.
“ 73. It seems to me quite evident
from the legislative history of this provision that from 1930 onwards
Parliament intended to make leave a precondition of any effective
proceedings. Unlike the position prior to 1930, the prospective
defendant was not to be required to take any action whatever with
regard to a proposed claim unless and until it was sanctioned by a
High Court judge. Absent such leave, albeit he might be notified of a
claimant's proposal to proceed against him, he was not to be troubled
by such proceedings. The very inflexibility of the provision was an
integral part of the protection it afforded. If, however, the
[applicant's] approach were to be adopted, inevitably (unless by
chance the court took the point of its own motion) the defendant
himself would be drawn into the litigation.
74. ... I repeat, the
requirement for leave here was to safeguard prospective defendants
from being faced with proceedings (which might not be sufficiently
meritorious to deserve leave) unless and until a High Court judge
thought it appropriate that they be issued. And that is not a
protection that can be secured save by a clear and inflexible rule
such as section 139(2) (and its legislative predecessors) have always
hitherto been understood to provide. Just such a rule applies in
respect of those adjudged vexatious litigants under section 42 of the
Supreme Court Act 1981 and Parliament clearly intended to achieve the
same result under the Mental Health Act legislation. Whether or not
such protection is necessary or desirable is, of course, open to
question and has, indeed, been extensively debated over recent years.
But your Lordships' task is not to decide whether it is desirable but
whether presently the legislation confers it.”
As to the Article 6 argument advanced by the
applicant, Lord Brown said (at paragraph 75):
“To suggest that the approach hitherto adopted to
section 139(2) involves a violation of article 6 of the European
Convention on Human Rights seems to me fanciful. Such an approach
cannot sensibly be seen (as Baroness Hale suggests) 'to brand every
person who is or has been subject to the compulsory powers in the
Mental Health Act as a potential vexatious litigant'. Nor can it be
seen to have 'an effect out of all proportion to the aim which it is
attempting to pursue.' Of course, in a rare case (perhaps such as
this one) a combination of circumstances—ignorance of the law
(ie of section 139(2)), the delay in the issue of proceedings
until the very end of the six year limitation period, and the
inflexibility of section 2 of the Limitation Act 1980 itself
(assuming the defendant chooses to take the Limitation Act defence)
will operate to deprive the prospective claimant of his claim. But
that, of course, is equally so in the case of a litigant in person
ignorant of the six year limitation period itself. In each case the
loss of the claim is the price paid for certainty—just as there
is a price to be paid for the established principle (and the
assurance it provides) protecting various classes of prospective
defendant against claims in negligence ... None of these cases can
properly be characterised as a denial of access to the courts
contrary to article 6 and it seems to me unsurprising that the point
was not even taken in the courts below.”
Baroness Hale of Richmond, dissenting, noted at the
outset of her opinion (at paragraph 38):
“The question is one of statutory construction.
Despite the antiquity of this provision, which dates back to the
Mental Treatment Act 1930, the question has never arisen directly
before. But it concerns a fundamental constitutional right –
the right of access to the courts. It also concerns the exercise of
that right by a peculiarly vulnerable group of people – people
who are or have been the subject of compulsory detention under the
Mental Health Act 1983. The courts here – and in Strasbourg –
have taken particular care to safeguard the right of prisoners to
have access to the courts while acknowledging that imprisonment
inevitably imposes some constraints: see particularly Golder v
United Kingdom (1975) 1 EHRR 524 in Strasbourg and R v
Secretary of State for the Home Department, Ex p Leech [1994] QB 198; R v Secretary of State for the Home Department, Ex p Simms
[2000] 2 AC 115; and R (Daly) v Secretary of State for the Home
Department [2001] UKHL 26; [2001] 2 AC 532 in the United Kingdom.
The courts should be no less vigilant to safeguard the rights of
mental patients, most of whom have done no wrong and very few of whom
are suffering from mental disorders which make them more likely than
others to bring vexatious claims.”
She continued:
“41. I approach the task of construing
section 139(2), therefore, on the basis that Parliament, by enacting
the procedural requirement to obtain leave, did not intend the result
to be that a claimant might be deprived of access to the courts,
unless there is express language or necessary implication to the
contrary. If there is no express language, there will be no necessary
implication unless the legislative purpose cannot be achieved in any
other way. Procedural requirements are there to serve the ends of
justice, not to defeat them. It does not serve the ends of justice
for a claimant to be deprived of a meritorious claim because of a
procedural failure which does no substantial injustice to the
defendant.
42. The express words
are:
'No civil proceedings shall be brought ... in respect of
any such act without the leave of the High Court; ...'
These words say nothing about
what is to be the consequence if, through ignorance or error,
proceedings are in fact started without leave ...”
...
“49. Nowhere ... is there any
discussion of the consequence if proceedings are brought without
first obtaining leave. The purpose was and remains the protection of
staff. But protection from what? It cannot have been intended or
expected that staff would be protected from all knowledge of possible
claims. The 1930 Act had expressly required that notice of an
application for leave be given to the proposed defendant. Good
practice and common courtesy, then as now, would require that they be
informed of what was afoot and have the opportunity if they so
desired to resist the grant of leave. What staff are protected from
is having to defend a baseless action. Such protection is not
undermined if an action is, whether through ignorance or
inadvertence, begun without leave and the defendant takes the point
or the court takes it of its own motion. The burden is still on the
claimant to establish that the case should go further.”
She concluded (at paragraphs 53-54) that:
“If spotted in time, the failure to obtain leave
for civil proceedings can readily be put right and without prejudice
to the legitimate interests of the defendant. If it is not spotted in
time, and the action succeeds, no injustice will be done to the
unsuccessful defendant if the judgment is allowed to stand; but a
serious injustice will be done to the successful claimant if it has
to be set aside, for by then it is not at all unlikely that the
action will be statute barred. The fact that leave is required at all
may not emerge until a relatively late stage in the proceedings. That
a claimant who has suffered a wrong should be deprived of his remedy
merely because of a procedural failure which no-one noticed at the
time is an affront to justice.
My Lords, I would not interpret section
139(2) so as to achieve such an obviously unjust result unless driven
by the statutory language so to do. The statutory language makes it
clear that if anyone, including the claimant, appreciates the point,
then leave must be obtained. It does not make it clear that if
no-one, including the court or the defendant, does so, the
proceedings are a nullity. Halfway houses are usually to be preferred
to absolute extremes.”
Considering Article 6 § 1 and the jurisprudence
of this Court, Baroness Hale noted:
“57. To be proportionate, a restriction on
fundamental rights has first to bear a rational connection with the
legitimate aim pursued. To restrict the right of access to the courts
of people who have previously abused that right obviously bears a
rational connection with the aim of protecting defendants against
vexatious claims. But it is not obviously rational to brand every
person who is or has been subject to the compulsory powers in the
Mental Health Act as a potential vexatious litigant. There are some
compulsory patients who suffer from paranoid delusions; there are
some who suffer from psychopathic disorders who may be more inclined
than others to make trouble. But the blanket restriction in section
139(2) takes no account of these subtleties. It assumes that everyone
who has ever been subject to Mental Health Act compulsion is
automatically suspect. This is not only empirically unproven. It
certainly cannot be taken for granted when Mental Health Act powers
may be exercised by people with no mental health expertise
whatsoever. On the one hand, therefore, section 139(2) goes too far.
On the other hand, however, it may not go far enough, because it is
limited to acts done in pursuance of the Mental Health Act itself. If
certain mental patients are ex hypothesi vexatious litigants, then
people who exercise authority over them otherwise than under the
Mental Health Act may also deserve protection.
58. This case is an
excellent illustration. The police case is that Mr Seal was first
arrested inside his mother's home for a breach of the peace. Having
been taken outside he was then detained under section 136(1) of the
1983 Act:
...
Police officers lead difficult
and dangerous lives. They have to make snap decisions in complex
situations where there is no time for quiet contemplation. They
deserve the support of the public, the courts and the law. But it has
not been shown why they should need more protection and more support
when they remove people to a place of safety under section 136 of the
Mental Health Act 1983 than they have when they conduct an ordinary
arrest.
59. Even where a
rational connection between the end and the means can be shown, the
means still have to be proportionate to the ends. There will be cases
in which the operation of section 139(2) is proportionate. There will
be other cases, quite possibly including this, in which it is not.
Blanket provisions, which catch a great many cases in which the
restriction is not justified in order to catch the few where it may
be, require particularly careful scrutiny. If section 139(2) has the
effect that proceedings are always a compete nullity, thus depriving
a claimant of a good claim, that is an effect out of all proportion
to the aim which it is attempting to pursue. Interpreting the
subsection so as to allow the court to cure the defect once detected
is a proportionate response.”
In the applicant's case, she concluded that the appeal
should be allowed, noting (at paragraphs 60-61):
“ The police may well have an answer to Mr
Seal's claim. But their case is not without difficulty. If he was
'removed' under section 136 of the Mental Health Act from his
mother's home, he cannot have been 'found in a place to which the
public have access'. If he was arrested in her home for a breach of
the peace, and then 'removed' under section 136 after they had taken
him outside, can it be said that they 'found' him there? (To say
otherwise would deprive section 136 of much of its usefulness when an
arrested person is later discovered to have a mental disorder.) These
are questions which deserve to be addressed at the trial of the
claim. By no stretch of the imagination is this vexatious. It may not
be worth a great deal of money but that is not the point.
61. Section 139(2)
covers a great many people who are neither vexatious litigants nor,
by reason of their mental disorder, more likely than the general
population to launch vexatious actions. I do not believe that
Parliament ever intended that it should operate so as to bar the
claims of people who began proceedings in time but did not obtain the
High Court's leave in time. Defendants deserve protection from
vexatious claims. They do not deserve protection from meritorious
claims. But if that was Parliament's intention, it is an irrational
and disproportionate interference in the Convention right to access
to justice. There is no problem in reading down section 139(2) to
cure that because there is nothing there to prevent it. However, the
best solution would be to remove the procedural requirement
altogether, as proposed in Clause 298 of the Draft Mental Health Bill
proposed by the Department of Health in 2004 (2004, Cm 6305-1). The
Mental Health Bill currently before Parliament, provides such an
opportunity.”
Also dissenting, Lord Woolf accepted that it was not
desirable to leave it until the limitation period had almost expired
before bringing proceedings. However, he noted that the applicant was
acting in person and considered that he could complain justifiably
that if his proceedings were not totally ineffective a judge could
take into account all the circumstances of the case, including any
culpable delay on his part, before deciding whether to treat the
proceedings as a nullity.
Following the conclusion of the proceedings in the
House of Lords, the applicant did not continue with the remainder of
his claim (see paragraphs 12, 15 and 17 above) in the County Court.
II. RELEVANT DOMESTIC LAW
A. Mental Health Act 1983
Section 136 of the 1983 Act, as in force at the time
of the applicant's arrest and the commencement of the legal
proceedings in this case, provided as follows:
“(1) If a constable finds in a place to which the
public have access a person who appears to him to be suffering from
mental disorder and to be in immediate need of care or control, the
constable may, if he thinks it necessary to do so in the interests of
that person or for the protection of other persons, remove that
person to a place of safety within the meaning of section 135 above.
(2) A person removed to a place of safety under this
section may be detained there for a period not exceeding 72 hours for
the purpose of enabling him to be examined by a registered medical
practitioner and to be interviewed by an approved social worker and
of making any necessary arrangements for his treatment or care.”
Section 139 provided:
“(1) No person shall be liable, whether on the
ground of want of jurisdiction or on any other ground, to any civil
or criminal proceedings to which he would have been liable apart from
this section in respect of any act purporting to be done in pursuance
of this Act or any regulations or rules made under this Act, or in,
or in pursuance of anything done in, the discharge of functions
conferred by any other enactment on the authority having jurisdiction
under Part VII of this Act, unless the act was done in bad faith or
without reasonable care.
(2) No civil proceedings shall be brought against any
person in any court in respect of any such act without the leave of
the High Court; and no criminal proceedings shall be brought against
any person in any court in respect of any such act except by or with
the consent of the Director of Public Prosecutions.”
The
relevant provisions of the 1983 Act have undergone amendments since
the time of the events to which this application relates which are
irrelevant for the present purposes.
Section 2 of the 1983 Act allows for detention for the
purposes of assessment for up to 28 days.
B. The Limitation Act 1980
Section 2 of the Limitation Act 1980 (“the 1980
Act”) provides as follows:
“An action founded on tort shall not be brought
after the expiration of six years from the date on which the cause of
action accrued”
Section 4A establishes a more limited time period for
commencing actions for defamation or malicious falsehood and provides
that:
“The time limit under section 2 of this Act shall
not apply to an action for–
(a) libel or slander, or
(b) slander of title, slander of goods or other
malicious falsehood,
but no such action shall be brought after the expiration
of one year from the date on which the cause of action accrued.”
Section 11 of the 1980 Act provides for a special
time limit for actions in respect of personal injuries:
“(1) This section applies to any
action for damages for negligence, nuisance or breach of duty ...
where the damages claimed by the plaintiff for the negligence,
nuisance or breach of duty consist of or include damages in respect
of personal injuries to the plaintiff or any other person.
...
(2) None of the time limits given in the preceding
provisions of this Act shall apply to an action to which this section
applies.
(3) An action to which this section applies shall not be
brought after the expiration of the period applicable in accordance
with subsection (4) or (5) below.
(4) Except where subsection (5) below
applies, the period applicable is three years from–
(a) the date on
which the cause of action accrued; or
(b) the date of knowledge (if later) of
the person injured.
...”
40. Section 33 of the Act provides for
discretionary disapplication of the time-limit for actions in respect
of personal injuries or death:
“(1) If it appears to the court
that it would be equitable to allow an action to proceed having
regard to the degree to which–
(a) the provisions of section 11 ... of
this Act prejudice the plaintiff or any person whom he represents;
and
(b) any decision of the court under this
subsection would prejudice the defendant or any person whom he
represents;
the court may direct that those provisions shall not
apply to the action, or shall not apply to any specified cause of
action to which the action relates.
...
(3) In acting under this section the
court shall have regard to all the circumstances of the case and in
particular to–
(a) the length
of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard
to the delay, the evidence adduced or likely to be adduced by the
plaintiff or the defendant is or is likely to be less cogent than if
the action had been brought within the time allowed by section 11
...;
(c) the conduct of the defendant after
the cause of action arose, including the extent (if any) to which he
responded to requests reasonably made by the plaintiff for
information or inspection for the purpose of ascertaining facts which
were or might be relevant to the plaintiff's cause of action against
the defendant;
...
(e) the extent to which the plaintiff
acted promptly and reasonably once he knew whether or not the act or
omission of the defendant, to which the injury was attributable,
might be capable at that time of giving rise to an action for
damages;
(f) the steps, if any, taken by the
plaintiff to obtain medical, legal or other expert advice and the
nature of any such advice he may have received.
...”
III. RELEVANT INTERNATIONAL INSTRUMENTS
The United Nations Convention on the Rights of Persons
with Disabilities, signed by the respondent State on 30 March 2007
and ratified on 8 June 2009, aims to promote, protect and ensure the
full and equal enjoyment of all human rights and fundamental freedoms
by all persons with disabilities, and to promote respect for their
inherent dignity (Article 1 of the UN Convention).
Article 12 provides for equal recognition before the
law and stipulates:
“1. States Parties reaffirm that persons with
disabilities have the right to recognition everywhere as persons
before the law.
2. States Parties shall recognize that persons with
disabilities enjoy legal capacity on an equal basis with others in
all aspects of life.
3. States Parties shall take appropriate measures to
provide access by persons with disabilities to the support they may
require in exercising their legal capacity.
4. States Parties shall ensure that all measures that
relate to the exercise of legal capacity provide for appropriate and
effective safeguards to prevent abuse in accordance with
international human rights law. Such safeguards shall ensure that
measures relating to the exercise of legal capacity respect the
rights, will and preferences of the person, are free of conflict of
interest and undue influence, are proportional and tailored to the
person's circumstances, apply for the shortest time possible and are
subject to regular review by a competent, independent and impartial
authority or judicial body. The safeguards shall be proportional to
the degree to which such measures affect the person's rights and
interests.
5. Subject to the provisions of this article, States
Parties shall take all appropriate and effective measures to ensure
the equal right of persons with disabilities to own or inherit
property, to control their own financial affairs and to have equal
access to bank loans, mortgages and other forms of financial credit,
and shall ensure that persons with disabilities are not arbitrarily
deprived of their property.”
Article 13 contains provisions on access to justice
and provides, in so far as relevant:
“1. States Parties shall ensure effective access
to justice for persons with disabilities on an equal basis with
others, including through the provision of procedural and
age-appropriate accommodations, in order to facilitate their
effective role as direct and indirect participants, including as
witnesses, in all legal proceedings, including at investigative and
other preliminary stages.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the decision to strike out his civil claim
against the police in respect of assault and false imprisonment
deprived him of access to court as guaranteed by Article 6 § 1
of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
The
Government contested that argument.
A. Admissibility
1. The parties' submissions
a. The Government
The
Government argued that the applicant had failed to exhaust domestic
remedies for three reasons.
First,
they emphasised that the applicant had failed to continue with his
substantive claim in respect of false imprisonment and assault (see
paragraph 32 above). Only the part of the applicant's claim relating
to his removal to a place of safety under section 136 of the 1983 Act
was struck out (see paragraph 17 above) and there was nothing to
prevent the applicant from continuing with the remaining part of the
claim and securing access to court in the context of proceedings at
which the substance of his complaints regarding the behaviour of the
police officers could have been considered.
Second,
the Government contended that once his case has been struck out for
failure to obtain leave, the applicant ought to have made an
application for leave from the High Court to bring a new claim. There
was nothing to prevent him from doing so. The Government pointed out
that the applicant did not allege that he was unaware of the
requirement to seek leave and in any case, given that he had
previously benefitted from legal advice (see paragraph 11 above),
this was a matter which fell within the responsibility of his
lawyers, against whom the applicant had a right of redress.
Third,
as to the applicant's contention that he could not seek leave because
any new claim would be out of time under section 2 of the Limitation
Act 1980, the Government argued that if a new claim were brought, it
would be for the Chief Constable to raise a limitation defence. If
the defence was not raised, the claim could proceed. To the extent
that the intended claim was for personal injury, the applicant might
have been able to argue that the court should disapply the limitation
period for personal injury claims in section 11, pursuant to section
33 of the Act (see paragraphs 39-40 above). The applicant would thus
have been able to bring his claim, even though it was out of time.
b. The applicant
The
applicant noted at the outset that the possibility of applying for
leave after the expiry of the relevant limitation period, on the
basis that either the defendant would not raise a limitation defence
or that the court would use its discretion to extend the period in
the case of a personal injury claim, would not have been in exercise
of a right.
Second,
the applicant argued that the course of action suggested by the
Government was not a real possibility. The defendant in the domestic
proceedings had made it clear that he wished to prevent the applicant
from bringing his claim in court and that he would rely on the
Limitation Act defence. Indeed, the defendant had successfully relied
on the 1980 Act in respect of the applicant's defamation and
malicious falsehood claims, for which a shorter limitation period
applied (see paragraph 15 above). Further, the domestic courts had
proceeded on the basis that the defendant would rely on the 1980 Act
and the Circuit Judge had expressly considered whether it would be
open to the applicant to make an application for leave and had
concluded that the defendant would raise the limitation defence (see
paragraph 18 above). The applicant therefore argued that it was
entirely unrealistic to suggest that the defendant might not have
raised the limitation defence.
The
applicant further pointed out that as regards the possibility of the
court waiving the limitation period in respect of any claim for
personal injury under sections 11 and 33 of the 1980 Act, this was
clearly not possible as regards his claim for false imprisonment.
2. The Court's assessment
a. General principles
The
Court reiterates that it is primordial that the machinery of
protection established by the Convention is subsidiary to the
national systems safeguarding human rights. This Court is concerned
with the supervision of the implementation by Contracting States of
their obligations under the Convention. It cannot, and must not,
usurp the role of Contracting States whose responsibility it is to
ensure that the fundamental rights and freedoms enshrined therein are
respected and protected on a domestic level. The rule of exhaustion
of domestic remedies is therefore an indispensable part of the
functioning of this system of protection. States are dispensed from
answering before an international body for their acts before they
have had an opportunity to put matters right through their own legal
system and those who wish to invoke the supervisory jurisdiction of
the Court as concerns complaints against a State are thus obliged to
use first the remedies provided by the national legal system (see
Akdivar and Others v. Turkey, 16 September 1996, §
65, Reports of Judgments and Decisions 1996 IV; and
Demopoulos and Others v. Turkey (dec.) [G.C.], nos.
46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04,
19993/04, 21819/04, § 69, 1 March 2010 ).
As stipulated in its Akdivar judgment (cited
above, §§ 66-67), normal recourse should be had by an
applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged. The existence of the
remedies in question must be sufficiently certain not only in theory
but in practice, failing which they will lack the requisite
accessibility and effectiveness. Further, the complaints intended to
be made before this Court should have 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. However, there is no obligation to have
recourse to remedies which are inadequate or ineffective.
As
the Court also held in Akdivar (cited above, § 68), in
the area of the exhaustion of domestic remedies there is a
distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (see also
Kennedy v. the United Kingdom,
no. 26839/05, § 109, 18 May 2010). However, once this
burden of proof has been satisfied it falls to the applicant to
establish that the remedy advanced by the Government was in fact
exhausted or was for some reason inadequate and ineffective in the
particular circumstances of the case or that there existed special
circumstances absolving him or her from the requirement.
Finally,
the Court has emphasised that the application of the rule must make
due allowance for the fact that it is being applied in the context of
machinery for the protection of human rights that the Contracting
Parties have agreed to set up and that it must therefore be applied
with some degree of flexibility and without excessive formalism (see
Akdivar, cited above, § 69).
b. Application of the general principles to the facts
of the case
As
to the Government's submission that the applicant had failed to
continue with the remainder of his claim and had therefore failed to
exhaust domestic remedies, the Court notes that the applicant's
complaint before this Court is that he was prevented from seeking
damages from the police for his detention under section 136 of the
1983 Act. It is clear from the judgments of the domestic courts that
this part of his claim was struck out by the County Court and was not
reinstated. Indeed, the Government do not dispute this. The
applicant's actions in respect of the remainder of his claim,
although to be weighed in the balance when addressing the issue of
proportionality (see paragraph 81 below), are of no relevance to the
question whether he has exhausted domestic remedies in respect of the
present application.
The Court further finds unconvincing the Government's argument that
following the House of Lords judgment confirming that his claim under
the 1983 Act was a nullity, the applicant could have sought leave
from the High Court as required by section 139(2) of the 1983 Act and
recommenced his claim, notwithstanding the fact that the relevant
limitation period had expired. First, the Court considers it highly
improbable that, having successfully applied to strike out part of
the claim on the basis that the limitation period had expired (see
paragraph 15 above), the defendant in the domestic proceedings would
nonetheless not have raised the Limitation Act defence in subsequent
proceedings regarding the remainder of the claim. In this regard, it
observes that the domestic courts appear to have operated on the
assumption that if the proceedings were held to be a nullity, the
applicant would be without further recourse in respect of this part
of his claim (see paragraph 18 and generally the opinions handed down
in the House of Lords at paragraphs 23-31 above).
As
to the suggestion that the relevant limitation period could have been
extended pursuant to section 33 of the 1980 Act, the Court observes
that this section provides discretion to disapply the limitation
period only in respect of claims for personal injury (see paragraph 40
above). The applicant does not indicate that his was a personal
injury claim and the domestic courts did not proceed on the basis
that the claim was one for personal injury.
Finally,
the Court notes that the Government did not submit that the Chief
Constable had argued before the Court of Appeal or before the House
of Lords, both of which examined the applicant's Article 6 complaint,
that the applicant could have sought to pursue his proceedings
through the various options outlined above.
In
the circumstances, the Court considers that the applicant has
exhausted domestic remedies in respect of his complaint under Article
6 § 1. The Government's objection is therefore dismissed.
The Court further notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention, nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
a. The applicant
The
applicant argued that the very essence of his right to a fair hearing
had been denied as at no stage had the merits of his claim against
the police been heard.
The
applicant emphasised that while the Government denied that the
legislation was based on the assumption that the mentally ill were
likely to bring groundless litigation, they did not explain why those
working in this field were more at risk of malicious, unmeritorious
or baseless claims, a matter which was also considered unsatisfactory
by Baroness Hale (see paragraph 29 above). A distinction could be
drawn between cases such as the applicant's and cases involving
vexatious litigants, where a fear of a greater than usual risk of
unmeritorious claims was clearly established. Furthermore, a
vexatious litigants order was both tailored to the specific
individual and made only after a claimant had brought a number of
claims which were totally without merit. Under the 1983 Act, a
blanket restriction was imposed on all potential claimants even where
there was no history of unmeritorious claims.
Even
if there were a greater risk of unjustified litigation in cases
concerning powers under the 1983 Act, the restriction imposed was
both excessive and ineffective. It was excessive because a stay of
proceedings would provide as much protection to defendants as the
annulment of the proceedings but would be less severe on claimants.
It was ineffective because the anxiety and distress to mental health
staff occasioned by an application for leave was likely to be just as
great as that occasioned by the valid initiation of the proceedings
after leave had been granted.
b. The Government
The
Government argued that section 139(2) of the 1983 Act did not remove
the right of access to court. Rather, it imposed a mechanism for
securing access. The requirement to obtain leave was not burdensome,
no particular formality was required and the threshold for securing
leave was low. The effect of the leave mechanism was to obtain an
early opinion of a High Court judge on the merits of the claim, thus
saving the claimant from potentially lengthy litigation that would be
doomed to fail where leave was refused, or encouraging early
settlement of the claim in the applicant's favour where leave was
granted.
The
Government further pointed out that the applicant had an unfettered
right of access to the High Court to seek leave. If leave had been
granted, he would have been permitted to litigate his claim. In the
circumstances, the Government contended, the applicant's complaint
was not about the leave procedure but about the applicable limitation
period. The Government denied that the limitation period limited the
applicant's right to court in any way, referring to the Court's
finding in Stubbings and Others v. the United Kingdom, 22
October 1996, §§ 55-57, Reports 1996 IV that
section 2 of the Limitation Act was entirely compatible with the
Convention. In the applicant's case, his problem arose as a result of
the interaction of section 2 of the 1980 Act and section 139(2) of
the 1983 Act. The reason for the interaction was that, despite the
fact that the applicant had had legal advice and the potential
availability of public funding to bring a claim, he had waited for
almost six years before bringing a claim and failed to seek prior
leave. They noted that the applicant did not suggest that he was
unaware of the requirement to obtain leave.
The
Government argued that even if section 139(2) removed a right of
access to court, it did so for a legitimate aim and the means used
were proportionate to that aim. The legislation was not based on the
assumption that the mentally ill were more likely to bring groundless
claims but was intended to afford some measure of protection for
individual public servants who sought to act in the best interests of
those who could not take care of themselves. In the absence of such
protection, there was a risk that those responsible for exercising
compulsory powers would adopt detrimentally defensive practices or
would avoid making use of the powers due to fear of unmeritorious
litigation. The consistent view of Parliament was that some
protection was required. The Government further pointed out that the
legislation applied to all those seeking to bring proceedings in
respect of acts done under the 1983 Act, regardless of whether they
had a mental illness.
On
the specific facts of the applicant's case, the strike-out was
proportionate. It related to a very limited part of the applicant's
case, namely the removal to a place of safety under section 136 of
the 1983 Act. It was not, as the applicant contended, a strike-out of
his entire claim for assault and false imprisonment. The
Government referred to a number of judgments and decisions of the
Convention organs which they contended had found provisions similar
to section 139(2) to be compatible with Article 6 (namely Ashingdane
v. the United Kingdom, 28 May 1985, § 59, Series A no. 93;
Golder v. the United Kingdom, 21 February 1975, § 95,
Series A no. 18; H. v. the United Kingdom, no. 11559/85,
Commission decision of 2 December 1985, Decisions and Reports
(DR) 45, p. 281; and G.M. v. the
United Kingdom, no.12040/86, Commission decision of 4 May 1987,
DR 52, p. 269).
As
to the applicant's assertion that the same end could have been
achieved simply by staying the proceedings to allow him to seek
leave, the Government responded that if this were permitted, staff
would be required to respond to claims to the extent of seeking a
stay and would inevitably be drawn into litigation, thereby incurring
the costs and anxiety that litigation would cause (referring to the
opinion of Lord Brown at paragraph 24 above). Further, as Lord Brown
had noted, Parliament had made a deliberate policy decision that the
consequence of not obtaining leave should be that no proceedings
could be brought (see paragraph 24 above) and the Government
contended that this decision fell within the margin of appreciation
afforded to the domestic legislature.
c. The third party
The
Equality and Human Rights Commission (“EHRC”) considered
that section 139(2) of the 1983 Act erected a substantive barrier
which in their view impermissibly restricted the access to court
required by Article 6 of the Convention. In the EHRC's
submission, section 139(2) created two hurdles: first, prior leave
from the High Court was required and failure to obtain it rendered
the proceedings a nullity; second, where the limitation period had
expired by the time the procedural error came to light, the claimant
could not issue fresh proceedings with a view to obtaining leave.
Relying on Baroness Hale's opinion in the House of Lords, the EHRC
argued that this restriction on access to court was neither justified
nor proportionate, given that there was no evidence that those
subject to compulsory powers under the 1983 Act were or would be
vexatious litigants.
The
EHRC noted the Government's submission that section 139(2) was not
based on the assumption that those wishing to challenge the exercise
of powers under the 1983 Act were of unsound mind. However, referring
to Baroness Hale's opinion (see paragraphs 29-30 above), they argued
that despite appearances, in practice concerns about the
unmeritorious nature of claims by those suffering mental disabilities
underlay the more stringent access requirement.
As
to the rationale advanced by the Government for the restriction on
access to court, namely the need to protect individual public
servants who exercise powers under the 1983 Act, the EHRC noted that
the Government offered no evidence to explain why these particular
civil servants needed this additional protection. The EHRC further
noted that in a case where the courts considered that a claimant had
brought a claim, or was behaving vexatiously, they had existing
powers to deal with that problem. These powers were available
regardless of whether the person had a mental disorder. There was
therefore no need for any additional hurdle and no way section 139(2)
could be considered proportionate.
Finally,
the EHRC referred to the UN Convention on the Rights of Persons with
Disabilities (see paragraphs 41-43 above), and in particular to its
Article 12 which provides that persons with disabilities have equal
recognition before the law. In their view, this reinforced the clear
need for any additional hurdles – however low – placed in
the way of a disabled person's access to court to be subject to close
scrutiny and to be found justified only on the basis of the clearest
of evidence. They concluded that section 139(2) of the 1983 Act did
not satisfy this requirement.
2. The Court's assessment
a. General principles
The
Court reiterates that the right to a fair hearing, as guaranteed by
Article 6 § 1 of the Convention, embodies the “right to a
court”, one aspect of which is the right of access, that is,
the right to institute proceedings before courts in civil matters
(see Golder, cited above, § 36; Prince Hans-Adam II of
Liechtenstein v. Germany [GC], no. 42527/98, § 43,
ECHR 2001-VIII; and Roche v. the United Kingdom [GC], no.
32555/96, § 116, ECHR 2005 X). Thus everyone has the right
to have any claim relating to his civil rights and obligations
brought before a court or tribunal (see Fogarty v. the United
Kingdom [GC], no. 37112/97, § 32, ECHR 2001 XI
(extracts); and Cudak v. Lithuania [GC], no.
15869/02, § 54, ECHR 2010 ...).
However,
the right of access to court is not absolute and may be subject to
limitations; these are permitted by implication since the right of
access by its very nature calls for regulation by the State. In this
respect, the Contracting States enjoy a certain margin of
appreciation, although the final decision as to the observance of the
Convention's requirements rests with the Court (see Al-Adsani v.
the United Kingdom [GC], no. 35763/97, § 53, ECHR 2001 XI).
It must be satisfied that the limitations applied do not restrict or
reduce the access left to the individual in such a way or to such an
extent that the very essence of the right is impaired (see Stubbings
and Others, cited above, § 50). Furthermore, a
limitation will not be compatible with Article 6 § 1 if it
does not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see Ashingdane, cited above, §
57; Prince Hans-Adam II of Liechtenstein, cited above, §
44; Fogarty, cited above, § 33; and Cudak,
cited above, § 55).
b. Application of the general principles to the facts
of the present case
The
Court must first examine whether the restrictions pursued a
legitimate aim. As regards the limitation period, the Court in
Stubbings and Others, cited above, § 56, accepted that
the six-year limitation period applied in that case pursued a
legitimate aim, namely to provide finality and legal certainty and to
prevent stale claims coming to court. The Court sees no reason to
depart from its previous finding and therefore concludes that the
six-year limitation period in the present case pursued a legitimate
aim.
As
regards the requirement to seek leave from the High Court, the Court
notes that a number of Contracting States regulate the right of
access to court as regards minors, vexatious litigants, persons of
unsound mind and bankrupts (see G.M. v. the United Kingdom,
cited above; and H. v. the United Kingdom, cited above).
However, it is not suggested that the applicant falls under any of
the above categories. The Court observes that, according to the
Government, section 139(2) of the 1983 Act is not directed at
limiting the power of individuals to commence any court proceedings
whatsoever but at restricting access to court for anyone who wishes
to complain about the exercise of powers under the 1983 Act when the
claim is manifestly unmeritorious. This explanation is supported by
the terms of section 139(2) itself, which make it clear that the
requirement to obtain leave applies to all seeking to pursue a claim
under the Act, whether of unsound mind or not. The Court is thus
satisfied that the provision is aimed at providing an additional
layer of protection for those exercising sensitive powers under the
1983 Act and does not assume that all those who are, or have been,
subject to the compulsory powers contained in the Mental Health Act
1983 are potential vexatious litigants.
The
Court recalls that in Ashingdane, cited above, it was called
upon to examine the predecessor of section 139(2) of the 1983 Act,
where the aim of the restriction on access to court was found to be
the need to protect individual members of hospital staff responsible
for the care of mental patients from unfair harassment through
litigation. In that case, the Court concluded that the aim was
legitimate (§ 58 of the judgment). In the circumstances of
the present case, the Court observes that the protection from
litigation afforded by section 139(2) benefitted the police, who were
the respondent to the applicant's claim. In principle, it considers
that closer scrutiny is required in respect of provisions which
restrict access to court in cases alleging an abuse of power by the
police. However, the Court notes that the restriction in section
139(2) of the 1983 Act was in the form of an additional procedural
requirement before the commencement of a civil claim and did not
grant any immunity from civil proceedings. Further, any request for
leave was considered by an independent High Court judge and would be
granted in the case of a well-founded claim. Given the sensitive
nature of the section 136 power, and the difficult and urgent
circumstances in which that power is likely to be exercised, the
Court considers that the general aim of protecting those who exercise
powers under that Act, including the police, by requiring a claimant
to demonstrate a prima facie case before being permitted to
commence a claim, pursued a legitimate aim.
It
therefore falls to the Court to assess whether in the circumstances
of the present case there was a disproportionate limitation on the
applicant's right of access to court. The Court recalls that the
effect of the application of the relevant legislation in the
applicant's case was that his claim against the police regarding
misuse of powers under section 136 of the 1983 Act was struck out at
a time when the limitation period for commencing such an action had
expired. In this regard, the Court observes, first, that the incident
which prompted the applicant's claim occurred in December 1997.
However, no steps appear to have been taken by the applicant to seek
redress for the alleged abusive behaviour of the police until 5
August 2003, when his solicitors sent a letter to the police (see
paragraph 11 above). No explanation has been provided for this delay.
The letter itself contended that there was no justification for the
applicant's detention under section 136 of the 1983 Act. It was thus
clear to the applicant at that time, if not before, that the
detention of the applicant in December 1997 had been based on section
136 of the 1983 Act. It should equally have been apparent to the
applicant's legal advisers at that time that any subsequent court
claim would require the leave of the High Court by virtue of section
139(2) of that same Act. The applicant has not argued before the
court that he and his solicitors were unaware of the requirement for
leave. Nor has he suggested that there was insufficient time between
August 2003 and the expiry of the limitation period in December 2003
for the necessary leave to be sought from the High Court. Indeed, he
has offered no explanation for his failure to comply with the
requirement to seek leave. Had he sought the prior leave as requested
or lodged his claim in sufficient time to rectify the oversight and
obtain the necessary leave, the merits of his claim would have been
considered.
The
Court further observes that despite having notified the police of a
potential claim on 5 August 2003, the applicant delayed taking steps
to lodge his claim until 8 December 2003, some four months later and
the eve of the expiry of the limitation period. The Court emphasises
that the applicant had received legal advice in respect of his
complaint against the police and did not suggest that he was unaware
of the applicable limitation period. The Court has previously found
that a six-year limitation period in respect of personal injury
claims was compatible with the requirements of Article 6 § 1
(Stubbings and Others, cited above, §§ 56-57). In
the present case, the nature of the incident forming the basis of the
claim was apparent at the time and there is no suggestion that the
applicant only became aware of a potential claim against the police
at a later date (compare and contrast Stubbings and Others,
cited above, §§ 11 and 17).
Finally, the Court notes that the applicant's original
claim lodged in the County Court was for “trespass, assault,
wrongful arrest, misuse of police powers, misuse of section 136 of
the 1983 Act, falsehood and personal injuries sustained” (see
paragraph 12 above). Following the decision of the House of Lords,
the applicant was not wholly deprived of the opportunity to pursue
his claim as only the parts of the claim relating to the exercise of
powers under section 136 of the 1983 Act were a nullity and it was
open to him to continue with the parts of his claim which had been
lodged within the relevant limitation period and which did not relate
to the exercise of those powers.
In
light of the above considerations, the Court is of the view that the
applicant's failure to comply with the procedural requirement to
obtain leave was entirely attributable to his own conduct and that of
his solicitors. While the applicant was not required to lodge his
claim any earlier than the date on which the limitation period
expired, he must nonetheless bear responsibility for the consequences
of his decision to lodge his claim at such a late stage. He has
provided no explanation to justify his delay in lodging his claim or
his failure to seek prior leave. In the particular circumstances of
the present case, the decision to strike out the applicant's claim
did not impair the very essence of the applicant's right of access to
court and was not disproportionate.
Accordingly,
taking into account the margin of appreciation afforded to States in
regulating the right of access to Court, the Court finds that there
has been no violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 14
The
applicant also complained under Article 6 § 1 of the Convention
taken together with Article 14 that the requirement to obtain leave
discriminated against those seeking to take legal action in respect
of detention under the compulsory powers in the 1983 Act. Article 14
provides that:
“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.”
A. Admissibility
The
Government argued that the applicant had failed to exhaust domestic
remedies in respect of his complaint under Article 6 § 1 taken
together with Article 14 in that he had not complained before the
domestic courts at any level, relying on Article 6 § 1 taken
together with Article 14, that the provisions of section 139(2) of
the 1983 Act discriminated against litigants seeking to take legal
action as a result of detention under the compulsory powers in the
1983 Act. They argued that a domestic complaint to this effect should
be regarded as an effective remedy for the purposes of Article 35 §
1.
The
applicant contested the submission that he had failed to raise his
discrimination complaint before the domestic courts. He argued,
first, that States had a duty to protect the fundamental rights
guaranteed by the Convention regardless of whether those affected had
invoked the Convention; second, that no remedy would have been
available in the domestic courts had the applicant expressly cited
Article 14; and third, that the substance of the points made to the
Court in relation to Article 14 was advanced before the domestic
courts.
The
Court notes at the outset that the applicant pursued his complaints
under Article 6 § 1 of the Convention through four tiers of the
domestic courts, which gave considered and detailed judgments. In
contrast, the issues arising under Article 14 taken in conjunction
with Article 6 § 1 have never been raised before the domestic
courts (see Carson and Others v. the United Kingdom [GC], no.
42184/05, § 59, ECHR 2010 ...). The applicant has
failed to explain in any detail why he considered that domestic
proceedings were effective in respect of his Article 6 § 1
complaint but would be ineffective in respect of his Article 14
complaint.
Further,
the Court does not consider that the applicant raised his complaints
under Article 14 in substance. In this regard it notes that the
applicant did not identify any part of the judgments of the domestic
courts which could substantiate his claim that a complaint of
discriminatory treatment had been made. As noted above (see paragraph
54 above), it is for the applicant to make use of remedies which are
available and sufficient to afford redress in respect of the breaches
alleged. There was no obligation on the domestic courts in the
circumstances of the present case to raise any issue under Article 14
of their own motion.
The
Court accordingly concludes that the applicant has failed to exhaust
domestic remedies in respect of his complaint under Article 6 §
1 taken together with Article 14. This complaint is therefore
inadmissible pursuant to Article 35 §§ 1 and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 6 § 1
taken alone admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 7 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
