CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 1996

.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. 26664/95                       by Colin SLINN                       against United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 15 November 1994 by Colin SLINN against the United Kingdom and registered on 8 March 1995 under file No. 26664/95;        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 national born in 1943.   He presently resides in County Wexford, Ireland.   The facts as submitted by the applicant may be summarised as follows.   A.    Particular circumstances of the case        From 27 January 1986 to 3 July 1988 the applicant was a director of Seagull Manufacturing Company Limited ("Seagull"), a computer utility organisation which on 17 March 1983 was incorporated in England as a private limited company.        On 30 May 1989 the Secretary of State for Trade and Industry instigated an inquiry under section 447 of the Companies Act 1985 into Seagull, following which he presented a petition under section 440 of that Act for the winding-up of Seagull on the grounds that it was expedient in the public interest.   On 4 April 1990 a compulsory winding -up order was made on the petition which was unopposed.        On 17 July 1990 the official receiver applied ex parte to the Registrar under section 133 of the Insolvency Act 1986 ("the Act") for an order for the public examination of the applicant at the Royal Courts of Justice in London.   The Registrar made the order and gave the official receiver leave to serve the applicant at his address in Alderney, Guernsey. At an inter partes hearing on 25 September 1990, the applicant appealed against the order arguing that the English court had no jurisdiction under section 133 of the Act to order him to attend a public examination in England since he had been resident outside the jurisdiction of the United Kingdom from 1979 onwards, first in the Isle of Man, then from 1986 in Alderney, the Channel Islands. The Registrar consequently set the order aside.        The official receiver appealed against that decision and the order was restored by the High Court.   The official receiver adduced affidavit evidence to show that creditors' claims against Seagull exceeded two million pounds, that the applicant had not cooperated with the official receiver and that despite being required by the official receiver to produce a statement of affairs for Seagull, no such statement had been produced. In the circumstances, the official receiver said he wanted the applicant examined in public where the creditors and contributories could question him. The High Court considered fully the legal arguments of both sides (the applicant was represented by counsel) and concluded that the scope of Section 133 of the Act did extend to residents outside the jurisdiction.        The applicant appealed to the Court of Appeal which, having fully considered the terms and effects of the relevant provisions, concluded that section 133 must have been intended to cover company officers outside the jurisdiction; Parliament could not have intended to allow persons responsible for the state of a company's affairs to escape liability simply by not being within the jurisdiction.   All three judges of the Court of Appeal agreed with the finding in the High Court that all officers described in section 133(1) (a)-(d) of the Act, whether inside or outside the jurisdiction, were within the legislative grasp and intendment of section 133, which on its proper construction has no territorial limits. The Court emphasised that it was concerned with the scope of the Act and was not concerned with whether the order for public examination could be effectively enforced against a person out of the jurisdiction.        The Court of Appeal refused leave to petition the House of Lords and on 23 May 1994 the House of Lords also refused leave to appeal.   B.    Relevant domestic law        Section 133 of the Insolvency Act 1986 provides:                    "Public examination of Officers        (1)    Where a company is being wound up by the court, the      official receiver or, in Scotland, the liquidator may at      any time before the dissolution of the company apply to the      court for the public examination of any person who-        (a)    is or has been an officer of the company; or        (b)    has acted as liquidator or administrator of the            company or as receiver or manager or, in Scotland,            receiver of its property; or        (c)    not being a person falling within the paragraph (a) or            (b), is or has been concerned, or has taken part, in            the promotion, formation or management of the company.        (2)    Unless the Court otherwise orders, the official      receiver or, in Scotland, the liquidator shall make an      application under subsection (1) if he is requested in      accordance with the rules to do so by-        (a)    one-half, in value, of the company's creditors; or        (b)    three-quarters, in value, of the company's            contributories.        (3)    On an application under subsection (1), the court      shall direct that public examination of the person to whom      the application relates shall be held on a day appointed by      the court; and that person shall attend on that day and be      publicly examined as to the promotion, formation or      management of the company or as to the conduct of its      business and affairs, or his conduct or dealing in relation      to the company.        (4)    The following may take part in the public examination      of a person under this section and may question that person      concerning the matter mentioned in subsection (3), namely-        (a)    the official receiver;        (b)    the liquidator of the company;        (c)    any person who has been appointed as a special manager            of the company's property or business;          (d)    any creditor of the company who has tendered proof or,            in Scotland, submitted a claim in the winding up;        (e)    any contributory of the company."   COMPLAINTS        The applicant complains that answers given in the course of the public examination (where he would be deprived of the right to silence) could later be used in a criminal case against him, and that his rights under Article 6 are therefore violated.        The applicant further complains that the Court of Appeal was not an impartial tribunal within the meaning of Article 6 since two of the Lords Justices who heard his appeal had in 1988 and 1990 heard or tried cases involving Seagull.   He claims that he had been involved in these cases and that he had come into conflict with one of the judges.        The applicant also complains that the official receiver should have applied for his public examination in Alderney, where he was resident, an Order in Council having extended the provisions of the Insolvency Act 1986 to the Bailiwick of Guernsey (which includes Alderney).   He claims that this was not done because in Alderney he has a right to silence to which he is not entitled in the United Kingdom. He further claims that the provisions of the Insolvency Act 1986 cannot be extended outside the United Kingdom.   THE LAW         The applicant complains that he has been summoned to appear at a public examination at the Royal Courts of Justice in London. He invokes Article 6 (Art. 6) of the Convention which provides in its first paragraph:        "1.    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 applicant complains that the answers given by him in the course of the public examination could be used against him in subsequent criminal proceedings. Further, the Court of Appeal which rejected his appeal against the order did not constitute an impartial tribunal since two of the Lords Justices had previously heard cases involving Seagull.        The Commission notes however that the applicant has not been charged with any criminal offence nor are the proceedings determinative of any civil right or obligation.   In effect, the applicant is merely being called as a witness in proceedings relating to the winding-up of a company of which he was once a director.   Article 6 (Art. 6) is therefore inapplicable and this part of his complaint must be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).        The applicant also complains that he should have been publicly examined in Alderney where he had a right to silence and not in London, where he had no such right.   He further complains that the English courts did not have jurisdiction to require him to attend a hearing in London.        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 to 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: (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 p. 71; No.7987/77, X v. Austria, Dec. 13.12.79, D.R 18 pp. 31, 45).        The Commission notes that the applicant's claim that the English courts had no jurisdiction to order him to appear for examination in public in London has been considered on appeal by the High Court and the Court of Appeal. Both courts fully considered the legal arguments submitted by the parties and concluded that the English courts did have jurisdiction under section 133 of the Act to order the applicant to attend examination in public in London in respect of his capacity as director of an English company in compulsory liquidation.        Insofar as the applicant claims that he had a right to be examined in Alderney and not to be examined in London, the Commission recalls that there is no right under the Convention either to be examined in the jurisdiction where one resides or not to be ordered for examination in a different jurisdiction. Therefore, even if the domestic courts had erred in their finding as to the scope of section 133 of the Act, no right protected by the Convention could be said to have been affected.        The Commission accordingly finds this part of the complaint incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)