CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 février 1995

.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. 22410/93                       by Geoffrey and Margaret ROBINS                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 22 February 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber,        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 14 March 1993 by Geoffrey and Margaret ROBINS against the United Kingdom and registered on 3 August 1993 under file No. 22410/93;        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 applicants, husband and wife, are British citizens born in 1942 and 1943 respectively and resident in Crediton and London. The facts as submitted by the applicants may be summarised as follows.        In August 1979, while carrying out work on their property known as "Applewood" the applicants cut through the drainpipe which took effluent from the adjoining property into a soakaway. The neighbouring owners, Mr. and Mrs. T., suffered problems with their sewage and installed a system to alleviate their problems. They instituted an action against the applicants seeking damages for the costs and expenses to which they had been put. Following a hearing, the county court on 23 June 1982 ruled in favour of Mr. and Mrs. T. finding that the applicants knew or should have known about the easement under their land and that they were liable to pay damages of   £2,363.69 in respect of the nuisance caused by their excavations. The applicants did not appeal.        On 26 February 1988, the applicants instituted an action against Mr. and Mrs. T. alleging that their sewage was seeping onto and under their land, causing, inter alia, a "ponding" effect.        On 18 May 1989, following a change of solicitor, the applicants served a statement of claim in action. Following discovery of documents, the case was set down for trial on 28 August 1990 before the judge who had dealt with the earlier case. The applicants applied for another judge in the case but the Registrar refused to relist. When the applicants maintained their objection before the judge himself on 28 August 1990, the judge upheld it. On 31 October 1990, the applicants were informed that the trial was relisted for 5 February 1991. The case was heard on 5-6 February 1991 before Sir Jonathan Clarke and since it required more time than allowed in the court schedule, it was adjourned until 19 April 1991.        In his judgment of 1 May 1991, Judge Clarke dismissed the applicants' claims. He found that though from time to time there was some seeping of sewage at times of heavy rain, the system installed by Mr. and Mrs. T. was on the whole adequate. To the extent that if there was a nuisance, it stemmed from the applicants' original action in disrupting the existing drainage system and the defendants were not liable. He ordered legal aid taxation of the applicants' costs.        The applicants' appeal was dismissed by the Court of Appeal on 19 October 1992.        As regarded costs, the matter was heard before Judge Clarke on 5-6 August 1991 and 19 September 1991. Following his falling ill, the matter was heard before Judge Darwall-Smith on 12-13 November 1992. On 13 November 1992, after hearing   Mrs T. , the applicants and an officer from the Legal Aid Board, he found that, notwithstanding that the applicants had originally been found eligible for legal aid with a nil contribution, the applicants were liable to pay Mr. and Mrs. T. a sum of approximately £5 000 and a further sum of £6000 (payable in instalments of £100 per month) in respect of costs.        By notice dated 11 January 1993, the applicants applied for an extension of time for appealing against the order of costs.        Counsel's opinion dated 11 August 1993 indicated that there was a ground of appeal in that the judgment of Judge Darwall-Smith indicated that he took into account an irrelevant or improper consideration in reaching his decision, namely, the applicants' dwelling house which is exempt under the relevant legal aid regulations.        On 15 April 1994, the Civil Appeals Office wrote to the applicants informing them that their application had been redesignated so that it might be assigned before two Lord Justices for them to determine the question of the extension of time and that, if granted, the full appeal would follow immediately. The applicants were requested to lodge the relevant documents by 2 May 1994. This time-limit was extended on the applicants' application until 30 June 1994.        The applicants had approached the county court with a view to obtaining the notes of the relevant judgments which had to be lodged with the Court of Appeal. By letter dated 17 June 1994, the Chief Clerk informed the applicants that he had difficulty in providing the documents requested but that the notes of the hearing of 3 September 1991 were being prepared. It later transpired that the judges's notes had been lost but that they had located a tape of the hearing of 12-13 November 1992. The applicants were unable to afford the transcription of the tape and the Civil Appeals Office having been informed, it appears that the County Court were instructed to pass the tapes to the Court of Appeal for transcription from public funds. The applicants were also informed in a letter of 16 November 1994 from the Chief Clerk of the County Court that the notes of the other hearings were not considered necessary at this stage and the file was to be transferred to the Court of Appeal once the transcript was received at which point further directions would be forthcoming.     COMPLAINTS        The applicants complain about the proceedings relating to the sewage problem recurring between their land and their neighbours.        In respect of the decision in 1982, the applicants submit that the judge was not impartial and that he chose to ignore the laws of physics in finding against them. They invoke Articles 6, 8, 13 and 14 of the Convention.        In respect of the decisions on the merits reached by the first instance and appeal courts in the proceedings instituted by themselves in February 1988, the applicants submit that the judges were not impartial, ignoring the evidence and misapplying the rules in a discriminatory fashion.        The applicants complain further of a delay in the proceedings before Judge Clarke and that they did not receive a fair hearing since, inter alia, the judge accepted the submissions of the defendants without supporting proof.        The applicants complain of the costs proceedings.   It involved a flagrant intrusion into their private lives and it resulted in their being discriminated against on the ground of property. The proceedings were unfairly conducted and are taking an unreasonable length of time. They invoke Articles 6, 8, 13 and 14 of the Convention.   THE LAW   1.    The applicants complain of the proceedings in 1982, submitting that they did not receive a fair or impartial hearing and invoking Articles 6, 8, 13 and 14 (Art. 6, 8, 13, 14) of the Convention.        The Commission is not required to decide however whether the applicants' complaints disclose a violation of the above provisions since, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        The Commission notes that the applicants did not appeal against the judgment of 23 June 1982 in which they were found liable to pay damages to their neighbours. An examination of the case as it had been submitted does not disclose the existence of any special circumstances which might have absolved the applicants from doing so.        It follows that the applicants have not complied with the condition as to the exhaustion of domestic remedies and their complaints in this respect must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicants complain   of the proceedings and decisions of the courts in respect of their claim for damages against their neighbours introduced in February 1988. They complain of delay in the hearing at first instance.        The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see eg. No. 458/59, X v Belgium, Dec. 29.3.60, Yearbook 3 pp.222, 236; No. 5258/71, X v Sweden, Dec. 8.2.73, Collection 43 pp.71, 77; No. 7987/77, X v Austria, Dec. 13.12.79, D.R. 18 pp. 31, 45).        The Commission notes that the applicants allege that the judges involved disregarded the evidence and were biased. The Commission recalls that the subjective impartiality of judges is always to be presumed unless there is evidence to the contrary (see eg. Eur. Court H.R. Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, para. 58). The fact that the judges accepted the evidence of one side rather than the other is not sufficient to establish a lack of impartiality. Further, it is generally not for the Commission to re-assess the factual elements of the case before the domestic courts in order to determine whether they reached the correct result.        As regards the allegation of delay in the first instance hearing, the Commission notes that the case had to be relisted from 28 August 1990 to 5 February 1991 as the result of the applicants' objection to the judge. While the hearing was adjourned since it overran the time anticipated, judgment was given on 1 May 1991, a delay of four months, which in the circumstances, the Commission finds is not unreasonable.        Having examined the submissions of the applicants, the Commission finds that their complaints as to unfairness, bias, excessive delay and discrimination have not been substantiated.        It therefore follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicants complain of the proceedings relating to the costs issue, submitting that they have interfered with their private life, disclose unfairness and discrimination and have taken an unreasonable length of time.   i. Insofar as the applicants complain of the proceedings at first instance, where they were questioned as to their personal circumstances, the Commission notes that the matter before the court required an investigation into the means of both parties with a view to establishing what order of costs could be made. To the extent therefore that the questioning interfered with the applicants' right to respect for their private life, the Commission finds that it was justified under the second paragraph of Article 8 (Art. 8) as "in accordance with law" and "necessary in a democratic society for the purpose of the protection of the "rights of others" ie. the defendants.        It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   ii.   Insofar as the applicants complain that the judge wrongly applied the law, and that the decision was unfair and discriminatory, the Commission notes that their appeal to the Court of Appeal, which has the power to quash or revise the order, is still pending. The Commission finds therefore that the applicants have not yet exhausted the domestic remedies available to them as required by Article 26 (Art. 26) of the Convention and that this aspect of their complaints must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   iii. As regards the applicants' complaints of delays in the costs proceedings, the Commission has had regard to the first paragraph of Article 6 para. 1 (Art. 6-1) which provides:        In the determination of his civil rights and obligations or      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.        The Commission notes that when the judgment against the applicant was given on 1 May 1991, the matter of costs was adjourned. An order was not made until 13 November 1992 and the applicants' application for leave to appeal appears to have been pending since 11 January 1993. The Commission finds that applicant's complaints as to the reasonableness of the length of the costs proceedings raise issues of fact and law under the Convention. It considers however that it cannot, on the basis of the file, determine the admissibility of these complaints and considers that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of them to the respondent Government.   4.    The applicants have invoked Article 13 (Art. 13) in respect of their complaints above. Article 13 (Art. 13) provides:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls however that Article 13 (Art. 13) does not require a remedy under domestic law in respect of any alleged violation of the Convention.   It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23, para. 52).        Insofar as the Commission has found above that the applicants' complaints are unsubstantiated and manifestly ill-founded, the Commission finds that they cannot be said to have an "arguable claim" of a violation of his Convention rights.        Insofar as the applicants have complained of the decisions of first instance courts in the proceedings dealing with their dispute with their neighbours, the Commission finds that they had or have the possibility of appealing to the Court of Appeal, an appellate body with jurisdiction to quash or modify the orders of the lower courts. There is no indication on the facts as presented in this case that this avenue of appeal is not an effective remedy for the purposes of Article 13 (Art. 13) of the Convention.        Finally, insofar as the applicants appear to invoke Article 13 (Art. 13) in relation to the length of the costs proceedings, the Commission notes that this complaint is being examined under Article 6 (Art. 6) of the Convention which is the lex specialis in relation to proceedings before the courts. No separate issue accordingly arises.        It follows that this part of the application must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission unanimously        DECIDES TO ADJOURN the examination of the applicants' complaint      that under Article 6 para.1 (Art. 6-1) as to the length of the      costs proceedings;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber         (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)