CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 octobre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 16309/90                       by Alan Albert GARNHAM                       against the United Kingdom             The European Commission of Human Rights sitting in private on 17 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 15 September 1989 by Alan Albert Garnham against the United Kingdom and registered on 6 March 1990 under file No. 16309/90;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a British citizen born in 1925 and resident in Hassocks.   The facts as submitted by the applicant may be summarised as follows.           On 17 January 1979, a Receiving Order was made against the applicant and on 12 February 1979 he was adjudged bankrupt. On 25 January 1979, the Official Receiver's examiner took possession of 40 files containing the applicant's books and papers, including some personal papers.           On 8 March 1979, a trustee in bankruptcy was appointed who took possession of the files, which had become his property under the provisions of the Bankruptcy Act 1914.           On 27 April 1979, the Court ordered that the applicant be discharged from bankruptcy automatically on 12 February 1984, the fifth anniversary of his being adjudicated bankrupt in accordance with section 7 of the Insolvency Act 1976.           During the course of his administration, the trustee realised sufficient funds to pay all the applicant's debts and liabilities in full.   On 21 October 1982, the trustee informed the applicant of his intention to apply to the Department of Trade to be released.   The applicant objected to the trustee's release by letter dated 3 January 1983 in which he also complained that his voluminous files were being "literally kicked around in the Trustee's Office"   and requested that they be given proper storage protection.           By letter dated 12 January 1983, the Department of Trade informed the applicant that it saw no grounds justifying withdrawal of the trustee's release and that if the applicant obtained rescission and annulment he could become entitled to the return of his books and papers.   On 7 April 1983, the Department of Trade proceeded to grant the trustee's release.           On 13 April 1983, the trustee returned the applicant's files to the Official Receiver.           On 10 June 1983, the Official Receiver wrote to the applicant pointing out that the applicant could now apply to the Court for an order rescinding the Receiving Order.   On 28 September 1983, the applicant replied that he did not intend to do so in protest against long-term unemployment.           Following his automatic discharge on 12 February 1984, the applicant applied to the Official Receiver for return of his files which included documents from a previous employer and material which he intended to use to write a book about his experiences of being unemployed.   By letter dated 4 February 1985, the Official Receiver informed the applicant that his papers had been destroyed in accordance with Rule 387 of the Bankruptcy Rules 1952.           On 7 December 1987, the applicant's complaints concerning the destruction of his files were referred to the Parliamentary Commissioner for Administration.         In his report dated 18 August 1989, the Parliamentary Commissioner found that the Official Receiver, while acting under statutory authority, could be criticised for failing to keep better records and for failing to give guidance to bankrupts concerning the practice with regard to the destruction of documents.   Pursuant to Rule 387, the bankrupt's documents could be destroyed if the trustee had been released once more than two years had elapsed since the Receiving Order and there was no prospect at that time of rescission of the Receiving Order.   The applicant had not been made aware that it was only by applying for rescission that he could have his documents returned.   The Commissioner also found that there was no evidence that the applicant had asked for the return of the papers or indicated that they were of personal nature until after they had been destroyed.   The Commissioner conveyed the Official Receiver's apologies to the applicant and stated that the Official Receiver had undertaken to remedy the shortcomings in the procedure.            By letter dated 6 February 1990, the applicant was advised by his solicitor that no further legal action could be taken in view of, inter alia, the difficulty of establishing liability and of quantifying any financial loss suffered by the applicant.           Relevant Domestic Law and Practice           At the relevant time, bankruptcy procedure was governed principally by the Bankruptcy Act 1914 ("the 1914 Act") and the Bankruptcy Rules ("the Rules").           Immediately on a debtor being adjudged bankrupt by the court, his property, including books and papers, vested in the trustee in bankruptcy (section 53 of the 1914 Act).           The main duties of the trustee in bankruptcy were to take or reduce into possession the bankrupt's property, including his deeds, books and documents (section 48 of the 1914 Act) and to declare and distribute dividends amongst the creditors who had proved their claims (section 62 of the 1914 Act).           Under section 93 of the 1914 Act, the trustee could apply to the Department of Trade for his release when he had realised the property of the bankrupt or such of it as could be realised without needlessly protracting the trusteeship, and had distributed a final dividend or had ceased to act by reason of a composition having been approved or had resigned or had been removed from office.    The Department then had to cause a report on the trustee's accounts to be prepared, and on the trustee complying with all requirements of the Department, had to take into consideration the report and any objection lodged by any creditor or person interested against the release, and then either grant or withhold the release, subject to appeal to the court.   The effect of a release is to discharge the trustee from all liability in relation to his conduct as trustee.   Under the Rules, no release could take effect until the trustee had delivered to the official receiver (or new trustee, as the case might be) all the books, papers, documents, and accounts in his possession relating to the office of trustee (rule 343).   If there was then no trustee in relation to the bankrupt's estate, the official receiver would become trustee by virtue of his office (sections 74 (1) (g), 78 (4) and 93 (5) of the 1914 Act).           Rule 387 of the Bankruptcy Rules provides that, on the application of the official receiver, the debtor's books of account and other documents may be "sold, destroyed or otherwise disposed of" on the direction of the Department of Trade.   The procedures for the disposal of books and papers of the debtor by the official receiver were the subject of standing instructions to official receivers issued by the Department which were amended in October 1983.   The policy of the Department was aimed at ensuring that books and papers of debtors were not kept longer than was necessary for the purpose of realising the estate of the debtor and any proceedings in connection with the bankruptcy.           Instruction 14 (issued in July 1982 and amended in October 1983) set out how the official receiver should apply to the Department for sanction for the disposal of books and papers and indicated the circumstances in which books and papers could or should be returned to the bankrupt, sold, preserved or destroyed.           Prior to October 1983, Instruction 14 indicated that an application for sanction for the disposal of the books and papers of a debtor would not normally be granted unless:           (i)   the trustee had been released;   and          (ii)   two years had elapsed since the receiving order was made               or the debtor had been discharged.           The Instruction was amended in October 1983 so that, normally, applications for sanction were to be made and granted on the release of the trustee.   The official receiver was, however, expected to be satisfied that the debtor had been discharged or that the books and papers would be of no relevance to a discharge application or review and that, at the time of the application, there was no prospect of a rescission of the receiving order.           Instruction 14 (Paragraph 6) also stated that:           "Private papers which are of no marketable value and         which are not required for any purpose relative to         the proceedings may, on request, be returned to the         bankrupt."           The Department regarded papers which were not recognisably concerned with the debtor's financial affairs as "private papers". Even where they are not recognisably papers concerning the debtor's financial affairs, a debtor's books and papers may be relevant to the recovery of assets or to prosecutions in connection with the bankruptcy proceedings.   Further, they may be of marketable value which should be realised for the benefit of creditors.   If, at the time when a debtor's books and papers were being taken into possession by the official receiver, the debtor made it clear that they were personal or private papers which were not in these categories, the papers would normally either not be taken into possession or would be returned to him after perusal.   Furthermore, where the debtor made no such representation and private papers were taken into possession but were not of marketable value or required for the proceedings, they could be returned to the debtor on request at the official receiver's discretion, without the need to seek further sanction from the Department.   In practice, such requests were generally granted.   Except in the case of a rescission and annulment - when, by virtue of annulment of the adjudication order, the property of the bankrupt reverted to him - there was no statutory requirement on the official receiver to return to the debtor his books and papers (so far as not already destroyed).     COMPLAINTS           The applicant complains of the destruction of his papers and correspondence and invokes Article 8 of the Convention.       PROCEEDINGS BEFORE THE COMMISSION           The applicant first wrote to the Commission on 28 May 1985. He wrote again on 15 September 1989 and the application was registered on 6 March 1990.           On 13 July 1990 the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.           The Government's observations were submitted on 20 February 1991 after three extensions in the time-limit and the applicant's observations in reply were submitted on 30 March 1991 and 8 July 1991.           On 8 March 1991 the Commission decided to grant legal aid to the applicant.           On 10 March 1991 the Commission examined the admissibility of the application.     THE LAW             The applicant complains of the destruction of his papers by the Official Receiver.           The Government have submitted that the application should be rejected as having been introduced outside the six month time limit imposed by Article 26 (Art. 26) of the Convention.   The Commission recalls that the applicant first wrote to the Commission on 28 May 1985.   He did not write again however until 15 September 1989, after which he completed an application form and the application was registered. There was accordingly a gap of over four years in the applicant's correspondence.           The Commission has therefore examined the question of the date of introduction of the present application.           In accordance with its established practice, the Commission considers the date of the introduction of an application to be the date of the first letter indicating an intention to lodge an application and giving some indication of the nature of the complaint. However, where a substantial interval follows before an applicant submits further information as to his proposed application, the Commission examines the particular circumstances of the case in order to decide what date shall be regarded as the date of introduction with a view to calculating the running of the six-month period set out in Article 26 (Art. 26) of the Convention (see e.g.   No. 4429/70, Dec. 1.2.71, Collection 37 p. 109).           The Commission has regard in this context to the purpose of the six-month rule which is to promote security of the law, to ensure that cases raising issues under the Convention are dealt with within a reasonable time and to protect the authorities and other persons concerned from being under uncertainty for a prolonged period of time.           The Commission's case-law also establishes that it would be contrary to the spirit and the aim of the six-month rule set out in Article 26 (Art. 26) if, by any initial communication, an applicant could set into motion the proceedings under the Convention and then remain inactive for an unexplained and unlimited length of time (see e.g.   No. 10626/83, Dec. 7.5.85, D.R. 42 p. 205).   The Commission has constantly rejected applications where an applicant submitted an application more than six months after the date of the final decision when there were no special circumstances suspending the running of this period.   The Commission finds that it would be inconsistent with the aim and purpose of the six-month rule to deviate from this rule in a situation where an application has been introduced under Article 25 (Art. 25) of the Convention within six months from the final decision or act complained of but thereafter not pursued.           In the present case, the Commission recalls that more than four years passed before the applicant resumed correspondence with the Commission.   Part of that period was spent by the applicant in pursuing a complaint before the Parliamentary Commissioner for Administration. The Commission recalls however that its case-law establishes that a complaint to the Parliamentary Commissioner for Administration is generally not an effective remedy for the purposes of Article 26 (Art. 26) of the Convention (see e.g.   Silver and Others v. the United Kingdom, Comm.   Report 11.10 80, paras. 447-448, Eur.   Court H.R., Series B no. 51, p.103 ).   Further, it appears that the applicant delayed for over two years before submitting his complaint to the Parliamentary Commissioner for Administration, a delay for which he has given no explanation.           In light of these circumstances, notwithstanding the applicant's initial letter of 28 May 1985, the Commission considers the date of introduction of the application to be 15 September 1989. Since the applicant was informed of the destruction of his documents by letter of 4 February 1985, it follows that the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.             For these reasons, the Commission by a majority             DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission               President of the Commission            (H. C. KRÜGER)                            (C. A. NØRGAARD)