Faustin M KABWE and Aaron CHUNGU v the United Kingdom - 29647/08 [2010] ECHR 251 (2 February 2010)

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Applications nos. 29647/08 and 33269/08
by Faustin M KABWE and Aaron CHUNGU
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 2 February 2010 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

The applicants, Mr Faustin M. Kabwe and Mr Aaron Chungu, are Zambian nationals who were born in 1949 and 1963 respectively and live in Lusaka.

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

The two applicants were, respectively, the ninth and the seventh of twenty defendants in civil proceedings commenced in October 2004 in the United Kingdom by the Attorney General of Zambia, for and on behalf of the Republic of Zambia. The other defendants to the civil proceedings included, inter alia, Dr Frederick Jacob Titus Chiluba, who was President of Zambia between 1991 and 2001. Zambia sought the recovery of large sums of public money which had allegedly been misappropriated by the
ex-President and others for personal gain. It was alleged that false contracts had been used to justify payments from Zambian State funds to bank accounts in London, where the funds were then laundered using bank accounts operated by the first and second defendants to the action, which were English firms of solicitors, and by a company called Access Financial Services Limited (AFSL), of which the first applicant was the chief executive officer and the second applicant was a director and shareholder. Two American companies were also allegedly implicated in the transfer and laundering of funds, but were not party to the civil proceedings. The proceedings were brought in the United Kingdom because several of the defendants, including the two firms of solicitors, were based in England; the relevant bank accounts had been situated in London; and many of the relevant documents were held by the solicitors' firms.

Simultaneously with the civil proceedings, criminal proceedings in respect of the same acts were underway in Zambia, brought by the Attorney General against the two applicants, the ex-President, and two of the other defendants to the civil proceedings, all of whom were resident in Zambia. As part of their bail conditions, the defendants to the criminal proceedings had surrendered their passports. They were therefore unable to leave Zambia, and could not travel to the United Kingdom in order to participate in person in the civil proceedings there.

As well as the travel restriction, the first applicant was also subject, along with other Zambia-based defendants, to a worldwide freezing order obtained by the Attorney General of Zambia in the High Court of England and Wales in November 2004. The injunction prevented the first applicant from realising his assets, subject to exceptions to allow him to draw sums of money to cover living expenses and legal representation.

The Zambia-based defendants, including the two applicants, applied to the High Court on 6 April 2005 for the following: i) a declaration that the courts of England and Wales had no jurisdiction to try the claim; ii) an order setting aside the service of the claim form on them; and iii) a stay of the proceedings on the grounds of forum non conveniens. However, prior to the application being heard, the application was withdrawn and a separate application for a stay was made. The grounds for requesting a stay were: i) that the trial would constitute a breach of Article 6 of the Convention; ii) that the trial would breach the principle of forum non conveniens; and iii) that the civil proceedings would prejudice the ability of the applicants to defend the criminal proceedings taking place against them in Zambia.

The application was heard on 15 August 2005. Prior to the hearing, permission had been obtained from the Zambian Government for the trial judge in the civil proceedings to sit in Zambia as a special examiner, in order to take evidence from the Zambia-based defendants and other witnesses.

In respect of the Article 6 point, the applicants argued before the High Court that the fact that the trial judge sat in Zambia to hear part of the evidence would not ensure them a fair trial, as he would not have the power to compel witnesses to attend, and that the receipt of daily transcripts would not alleviate the prejudice of their not being present in court to instruct their lawyers instantaneously as to the cross-examination of witnesses.

In a decision dated 7 October 2005, the trial judge dismissed the applicants' application on all grounds. He found that as the bulk of the alleged laundering had taken place in London and that the two firms of solicitors were key witnesses and were domiciled in England and that there were other defendants resident elsewhere in Europe, England was the appropriate forum for the resolution of the dispute. It would not be appropriate to have two sets of proceedings involving different defendants in England and in Zambia, and it would be less convenient to recommence fresh proceedings in Zambia to replace those already underway in England. He could appoint himself as special examiner to take evidence in Zambia while the Zambia-based defendants could take part in the London proceedings via video link from Zambia, and through having daily transcripts either faxed or e-mailed to them. The Zambia-based defendants could retain their Zambian lawyers to represent them in the English proceedings. In order to prevent any prejudice to the defendants as regards the criminal proceedings simultaneously underway against them, the evidence in the civil proceedings might be “ring-fenced” so as to prevent it being used in the criminal proceedings. The judge also indicated that he would consider a fresh application for a stay with a sympathetic eye, if the Zambia-based defendants could show that they were genuinely unable to fund their defence without selling assets which had been made subject to the freezing order.

Following this decision, the trial judge made directions for the future conduct of the proceedings on 10 October 2005. He directed that the proceedings be “ring-fenced” so that the trial would take place in private and none of the evidence adduced in the civil proceedings would be permitted to be used in the Zambian criminal proceedings. The intended result was that no prejudice to the applicants' right to silence and to the way in which they chose to conduct their defence in the criminal proceedings would be possible.

The Zambian defendants applied on 21 October 2005 to the Court of Appeal for permission to appeal against the trial judge's decision to refuse a stay. Permission was granted. Before the Court of Appeal, the applicants did not seek to rely on the forum non conveniens argument, but based their appeal solely on the Article 6 point and the risk of prejudice to their defence in the Zambian criminal proceedings. The Court of Appeal noted that the applicants had now accepted that it was inappropriate for separate civil proceedings to occur in Zambia and England, and that England was the more appropriate forum, given the preponderance of witnesses and documentary evidence, as well as the focus of the alleged conspiracy upon action in London. It followed from this that a practical solution had to be reached to ensure that the proceedings in England were determined in a manner fair to all parties, including the applicants.

As regards prejudice to the criminal proceedings, the applicants did not seek to argue that the “ring-fencing” order made by the trial judge was not sufficient to protect them, if effectively observed. Instead, they argued that there was a risk that Zambia would not comply with the order. As the only incentive to comply with the order would be the continuation of the English proceedings, which might be stayed in the event of a breach of the order, once the English proceedings had terminated there was a risk that Zambia might breach the order with impunity. The English proceedings should be stayed until the conclusion of the Zambian proceedings.

The Court of Appeal found, however, that the order made by the trial judge should prove sufficient to protect the defendants to the criminal proceedings. As the State of Zambia had instituted the civil proceedings, it was deemed to have submitted to the jurisdiction of the English courts, and was therefore liable to contempt of court in the event that it should breach the order. In addition, Zambia had indicated a willingness to undertake to be liable for contempt of court in the event of a breach. As a member of the Commonwealth, it should be assumed that Zambia would honour its obligations.

In respect of their Article 6 argument, the applicants submitted that they would be disadvantaged by their inability to attend the civil proceedings in person. The Court of Appeal, however, found that the trial judge had been justified in holding that the applicants would receive a fair trial on the basis of the measures proposed to be taken. The right to attend one's civil trial so as to be able to give evidence and to instruct one's representatives was not an absolute right. The key to Article 6 of the Convention was that each party knew the case against him and was able fully and properly to answer it. In the Court of Appeal's opinion, the trial judge would ensure, by means of the daily faxing or e-mailing of transcripts, the use of a video link and the hearing of part of the evidence in Zambia, that the applicants were able to do that. The taking of evidence by commission or via video link was not inconsistent with the right to a fair trial. The criminal proceedings in Zambia were likely to be protracted, and a stay of the English proceedings until after they had been completed was likely to result in greater prejudice to all parties than the trial going ahead subject to the measures put in place for the protection of the Zambia-based defendants.

The Court of Appeal therefore unanimously dismissed the appeal, and refused permission to appeal to the House of Lords, on 7 March 2006.

A case management conference was held on 28 April 2006. The applicants allege that at a pre-arranged location in Lusaka where a video link had been set up for them, the video link broke down. They were offered the use of the video conferencing equipment at the British High Commission in Lusaka, but declined to relocate there. The case management conference therefore took place without their participation.

At the conference, orders were made to set dates for the trial and for the taking of evidence by the trial judge sitting as special examiner in Lusaka; to permit the whole trial to be covered by video conferencing; to require that the whole trial be held in private; to ring fence the evidence; and to require that Zambia give a written undertaking to waive its State immunity in respect of any contempt of court proceedings that might be initiated against it for breach of the ring-fencing order. The trial was provisionally set for between 2 October 2006 and 19 February 2007.

The applicants lodged a petition for permission to appeal to the House of Lords against the decision of the Court of Appeal. Permission was refused on 11 July 2006, as the petition was found not to involve an arguable point of law of general public importance. The House of Lords stated that the fairness of the civil proceedings would depend on procedural decisions yet to be made.

In the meantime, the Zambia-based defendants had opted to withdraw from the civil proceedings in June 2006. The applicants claim that this decision was reached because of a fear that the ring-fencing provisions were being breached, and that their right to silence and their defence of the criminal proceedings were being undermined as a result. They allege that aspects of their defences to the civil proceedings, which had been required to be lodged by 15 February 2006 and which had been drafted by the applicants themselves, had been leaked to the Zambian press. The applicants also allege that they were unable to fund English lawyers to represent them in the civil proceedings or to obtain legal aid.

The civil trial commenced in the High Court on 31 October 2006, and the trial judge sat as special examiner in Lusaka between 29 November and 14 December 2006. All parts of the trial were covered by video link. The Zambia-based defendants, including the two applicants, did not take any part in the proceedings, having “discontinued participation” in June 2006. The Zambia-based defendants were issued with all the documentation in advance of the trial, and initially received daily transcripts of the proceedings once the trial commenced. However, after the
ex-President issued a press release at the start of the trial to which were attached documents which formed part of the ring-fenced material, and other Zambia-based defendants had given statements to the press alluding to such material, the trial judge ordered that they would receive transcripts only if they collected them in person each day from the courthouse in Zambia, and signed confidentiality agreements. They did not do so.

“quite satisfied that [the applicants] have had the fullest opportunity to present a case against the claims brought against them but they have chosen for their own reasons not to do so.”

The judge found that the Zambia-based defendants had broken the
ring-fencing order which had been put in place for their own benefit. As regards the evidence against them, he observed that the misappropriation of money and its processing through various accounts was largely documented and unchallenged. The crucial points were the legitimacy or otherwise of the transactions and the defendants' state of mind at the time. These issues had been fully made out by the claimant. The allegations of conspiracy on the part of all the defendants, breach of fiduciary duties on the part of some and dishonest assistance in the breach of fiduciary duties on the part of others, had been proved on a balance of probabilities, even taking account of the strong and cogent evidence required for a successful fraud case to be made out. He stated that,

“If there was anything in any authority or legitimate case that could have been raised I would have expected the Zambia based Defendants to appear.”

He found that the first applicant had performed a pivotal role in the transfer and disbursement of monies, and as such, played a significant part in the conspiracy. His actions could have had no honest motive behind them. The second applicant did not give direct instructions in the same way as the first applicant, but also played a key role in the conspiracy and was equally dishonest.

Each of the Zambia-based defendants was found liable as claimed. The two applicants were found liable for conspiracy and for dishonest assistance, in the sum of USD 25,754,316 in respect of the former and USD 9,148,842.17 in respect of the latter.

On 25 May 2007, the applicants sought permission to reopen the appeal that had been dismissed on 7 March 2006, and on 6 June 2007, they sought permission from the Court of Appeal to appeal against the final decision. They argued that the trial had been conducted in such a manner as to breach their rights under Article 6 of the Convention. Following the submission of the application, the applicants became aware of the case of Howell, Thompson, Robinson v Millais, Joicey, Millais [2007] EWCA Civ 720, a judgment of the Court of Appeal against a decision by the same High Court judge as had presided over their trial. The judge had been asked to recuse himself, on the grounds that one of the claimants in the case was the law firm, Addleshaw Goddard, with which the judge had previously been engaged in negotiations as to the possibility of his employment by the firm. The negotiations had not ended satisfactorily and the correspondence indicated “disappointment and some animosity” on the part of the judge. The Court of Appeal in that case found that the judge should have recused himself, and he was criticised for his conduct of the proceedings. The extracted correspondence of particular interest to the applicants, however, was an e-mail from the judge to the law firm, dated 26 May 2007, in which the judge stressed the advantages to the firm of being associated with the judge who had recently given a “landmark decision on corruption.” The applicants believed that the decision referred to was the judgment against them. They therefore sought leave to amend their grounds of appeal in order to include an allegation of bias against them on the part of the trial judge.

The applications for permission to appeal and for permission to amend the grounds were refused on 17 December 2007. The Court of Appeal found that there was no substance to any of the applicants' arguments. The order designed to protect the applicants against prejudice in the criminal proceedings and to facilitate their participation in the civil proceedings, albeit from a distance, was clearly considered by the trial judge to be fit and adequate for its purpose. Had the applicants disagreed, they should have raised this at the time, rather than seeking to revisit the issue on appeal once the trial had concluded. Although they had raised certain concerns in a letter to the Zambian Attorney General's solicitors dated 22 June 2006, to which they claimed not to have received an adequate response, they had evidently taken the decision not to participate in proceedings prior to this date. Their allegation that it was the Zambian Attorney General or his staff who broke the ring-fencing order by leaking details of the civil proceedings to the press was devoid of evidence. There was therefore nothing to their argument that the trial judge should have invited their submissions before concluding that it was one or more of the defendants, though not necessarily those involved in this appeal, who had leaked the information. The applicants could not establish that they had been found liable in the civil proceedings as a result of their non-participation; there had been sufficient evidence against them to lead to such a finding which they had not made any efforts to refute. The applicants had not been able to point to any witnesses in Zambia who could have given relevant evidence but whose attendance the judge, sitting as special examiner, had been unable to compel. Nor could they point to anything in the judgment against them, as published in Zambia, which might prejudice them in the criminal proceedings. Since they had not participated in the civil proceedings, the judgment contained no information which had emanated from them. Their argument that they had been unable to fund legal representation for the civil proceedings was similarly without substance, as the Zambian government had lifted restrictions on sale relating to a farm owned by the first applicant, specifically for the purpose of freeing funds so that the applicants could pay legal fees. However, the farm had not been sold and no good explanation had been offered for this omission. Overall, the applicants' argument that they had been disadvantaged by their financial inability to instruct representatives was lacking in detail.

As to the claim of bias on the part of the trial judge, there was simply no factual basis for this. It was absurd to argue that the judge had decided the case on the basis of how it might affect his future employment prospects. Had he decided the case differently, he would still be able to refer to it as a “landmark” judgment.

The application for permission to reopen the old appeal in respect of the stay application was refused on 25 February 2008. The Court of Appeal noted that the test to re-open the final determination of an appeal was that the circumstances of the case were exceptional and that the applicants had to demonstrate that they would suffer real injustice if the appeal were not
re-opened. In this case, the applicants did not come close to fulfilling either strand of the test. Many of the arguments employed by the applicants had already been considered and found to lack substance by the formation of the Court of Appeal that had dismissed the appeal on 17 December 2007 and that had had the benefit of an oral hearing. There was no real substance to the application.

The first defendant in the civil proceedings, a firm of solicitors based in London, appealed against the judgment of 4 May 2007. The grounds of appeal related to the states of minds of the partners to the firm, an issue of vicarious liability, and an argument that the judge had wrongly rejected a limitation defence. On 31 July 2008, the Court of Appeal allowed their appeal, and on 26 November 2008, the House of Lords refused Zambia's application for leave to appeal against the decision of the Court of Appeal.

(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –

The court may allow a witness to give evidence through a video link or by other means.

Annex 3 to Practice Direction Part 32, which supplements Part 32 of the CPR, sets out guidance for the use of video conferencing facilities. Paragraph 2 of the Annex provides:

“VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.”

34.13 Where a person to be examined is out of the jurisdiction – letter of request

(4) If the government of a country allows a person appointed by the High Court to examine a person in that country, the High Court may make an order appointing a special examiner for that purpose.

In the case of Peer International Corporation v. Thermidor Music Publishers Limited [2005] EWHC 1048, Mr Justice Lindsay of the High Court stated, with regard to Part 34.13,

“It will be noted that there is no restriction upon the identity of the special examiner who may be appointed under 34.13 (4); more particularly, there is nothing that bars a High Court judge who is hearing the case in England appointing himself to be the special examiner...As I read CPR 34.13, so long as the Government of Cuba indicates that it will allow me, as a special examiner appointed by the High Court, to examine witnesses in Cuba, I may make an order appointing myself to that end.”

The applicants complained about the alleged unfairness of the civil proceedings against them in the United Kingdom. Article 6, so far as relevant, provides that:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an ... impartial tribunal. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial ... to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

The applicants maintained that, due to their inability to be physically present during the course of the civil trial, the trial was conducted in a manner which breached their rights under Article 6. They complained that they were unable to fund legal representation for the proceedings in the United Kingdom. They also claimed that their position with regard to the criminal proceedings against them was prejudiced, as their right to remain silent was undermined and evidence was leaked from the civil trial which affected the conduct of their defence in Zambia. They further maintained that the trial judge presiding over the civil proceedings was biased against them, and that the governments of the United Kingdom and Zambia had connived to secure a finding of liability against them.

The Court recalls that the principle of equality of arms, one of the features of the wider concept of a fair trial, dictates that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, for example, Werner v. Austria, 24 November 1997, § 63, Reports 1997 VII).

Article 6 does not expressly provide for a right to a hearing in one's presence; rather, it is implicit in the more general notion of a fair trial that a criminal trial should take place in the presence of the accused (see, for example, Colozza v. Italy, 12 February 1985, § 27, Series A no. 89). However, in respect of non-criminal matters there is no absolute right to be present at one's trial, except in respect of a limited category of cases, such as those where the personal character and manner of life of the person concerned is directly relevant to the subject matter of the case, or where the decision involves the person's conduct (see, for example, X. v. Sweden, no. 434/58, p. 370, 1959 and Muyldermans v. Belgium, 23 October 1991, § 64, Series A no. 214 A). It is incumbent upon the applicant to show that his presence is necessary (see X. v. Switzerland no. 7370/76, 1977).

The right to be present at one's trial is closely linked to the right to an oral, public hearing since, if Article 6 does not require an oral hearing there is, by extension, no right to be present. An oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 § 1 (see Jussila v. Finland [GC], no. 73053/01, §§ 40-42, ECHR 2006 XIII). This principle is particularly important in the criminal context, where generally there must be at first instance a tribunal which fully meets the requirements of Article 6 (see Findlay v. the United Kingdom, judgment of 25 February 1997, § 79, Reports 1997-I,) and where an applicant has an entitlement to have his case “heard”, with the opportunity inter alia to give evidence in his own defence, hear the evidence against him and examine and cross-examine the witnesses. That said, the obligation to hold a hearing is not absolute (see Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171-A, § 66), even in the criminal context. There may be proceedings, both criminal or civil, in which an oral hearing may not be required: for example where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties' submissions and other written materials (see, for example, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002; Pursiheimo v. Finland (dec.), no. 57795/00, 25 November 2003; cf. Lundevall v. Sweden, no. 38629/97, § 39, 12 November 2002 and Salomonsson v. Sweden, no. 38978/97, § 39, 12 November 2002, and see also Göç v. Turkey [GC], no. 36590/97, § 51, ECHR 2002-V, where the applicant should have been heard on elements of personal suffering relevant to levels of compensation).

The Court has further acknowledged that the national authorities may have regard to the demands of efficiency and economy and has found, for example, that the systematic holding of hearings could be an obstacle to the particular diligence required in social security cases and ultimately prevent compliance with the reasonable time requirement of Article 6 § 1 (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, § 58 and the cases cited therein). Although the earlier cases emphasised that a hearing must be held before a court of first and only instance unless there were exceptional circumstances that justified dispensing with one (see, for instance, Håkansson and Sturesson v. Sweden, cited above, p. 20, § 64; Fredin v. Sweden (no. 2), judgment of 23 February 1994, Series A no. 283-A, pp. 10-11, §§ 21-22; and Allan Jacobsson v. Sweden (no. 2) judgment of 19 February 1998, Reports 1998-I, p. 168, § 46), the Court has clarified that the character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005). The overarching principle of fairness embodied in Article 6 is, as always, the key consideration (see, mutatis mutandis, Pélissier and Sassi v. France [GC], no. 25444/94, § 52, ECHR 1999 II; Sejdovic v. Italy [GC], no. 56581/00, § 90, ECHR 2006 ...).

The right of access to a court does not necessarily entail a right to legal assistance in non-criminal matters. Only where a party would not receive a fair hearing without the provision of legal aid, with reference to all the facts and circumstances of the case, will Article 6 require legal assistance (see Steel and Morris v. the United Kingdom, no. 68416/01, § 61, ECHR 2005 II).

The issue of bias on the part of a trial judge has been the subject of much case-law by the Court. The Court reiterates that in determining whether a tribunal has been impartial in terms of Article 6, it has distinguished between a subjective and objective approach (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 XIII). The subjective test involves the question of whether a judge can be shown to have acted with personal bias against the applicant. The objective test involves the question of whether, quite apart from any personal bias, there are ascertainable facts which may raise doubts as to the impartiality of the judge. In applying the subjective test, the judge should be presumed to be impartial until there is proof to the contrary (see Kyprianou, cited above, § 119).

The manner of taking and the admissibility of evidence is primarily a matter for the national courts; the Court's task in terms of Article 6 of the Convention is not to give a ruling as to whether evidence was properly taken or admitted, but to ascertain that the proceedings as a whole were fair (see, inter alia, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports 1997 III).

As to the use of video conferencing facilities for the submission of evidence, the Court has stated in Marcello Viola v. Italy, no. 45106/04, § 67, ECHR 2006 XI (extracts) that:

“Although the participation of the defendant in his trial by videoconference is not, as such, contrary to the Convention, it is incumbent on the Court to ensure that recourse to this measure in any given case serves a legitimate aim and that the arrangements for the submission of evidence are compatible with the requirements of due process as laid down in Article 6 of the Convention.”

The Court notes at the outset that the applicants' complaint under this provision of the Convention is five-fold:

(i) In the first place, they complain that they were not able to be physically present in the United Kingdom during the civil proceedings, due to their travel restrictions. They maintain that this resulted in unfairness to them in the conduct of the trial.

The Court observes that in the instant proceedings, efforts were made to ensure that, although the applicants could not be physically present in the United Kingdom, they could nonetheless participate in the trial.

The Court notes that on 28 April 2006 the trial judge made an order providing inter alia that he would take evidence in Zambia as special examiner between 16 October and 3 November 2006 and that permission would be granted for the whole trial to be dealt with by video conferencing. These provisions were specifically intended to address the fact that the applicants could not be physically present in London, and to ensure that they could participate in the proceedings nonetheless.

In refusing the application for a stay of the proceedings until the Zambian criminal proceedings had finished, the Court of Appeal (in a decision which pre-dated the order referred to above, but was taken in the knowledge that such an order was more than likely) held that it was not necessary to stay the proceedings pending the outcome of the criminal proceedings in Zambia. The Zambian criminal trials against the applicants had begun, but such trials were not continuous and it was estimated that they would not conclude until the middle of 2007, with scope after that for appeals to the High Court and then the Supreme Court of Zambia. It was therefore considered to be reasonable that the civil trial should proceed in the interim, rather than being stayed in anticipation of the conclusion of the criminal trial, which could take years. Despite the inability of the applicants to attend in person, sufficient safeguards could be put in place to ensure them a fair trial. The taking of evidence on commission and the video conferencing facilities were consistent with the notion of a fair trial. Combined with oversight by the trial judge throughout the proceedings, in order to ensure that the applicants were at all times aware of the case against them and able fully and properly to answer it, the arrangements to be put in place would assure the applicants a fair trial.

The Court agrees that sufficient safeguards were put in place to ensure that the applicants, though they could not be physically present in London, were able fully to participate in the proceedings against them.

The applicants contend that the video conferencing facilities and the taking of evidence on commission in Zambia were insufficient to ensure them a fair trial, since they would not be on hand in London to instruct their representatives during the cross-examination of witnesses, and since the judge, sitting as a special examiner in Zambia, would not have the power to compel the attendance of witnesses. The Court does not agree that this was the case. The applicants' physical presence at the trial would have been the most desirable solution; however, as this was not possible, sufficient measures were taken to protect their rights.

The Court also observes that the applicants cannot point to any prejudice sustained by them as a result of their inability to be present in London, since in the event they chose to withdraw from the proceedings prior to the trial. They cannot therefore argue that they were disadvantaged at the trial in spite of the provisions put in place in order to facilitate their participation: since they did not make use of these provisions, any prejudice sustained stemmed from their own withdrawal from the proceedings. Any argument that the measures would have been inadequate is therefore purely speculative.

(ii) In the second place, the applicants complain that they were disadvantaged because they were financially unable to fund legal representation for the proceedings in the United Kingdom.

The Court notes at the outset that, even by the applicants' own admission, the reason for their difficult financial position was the freezing order obtained against them by the Attorney General of Zambia, for which the United Kingdom was not responsible. This element of their complaint is therefore incompatible ratione personae with the Convention.

The applicants would have an arguable complaint against the United Kingdom arising out of their inability to fund legal representation had they applied for, and unfairly been refused, legal aid. However, they made no such application. Nor did they submit a further application for a stay on the grounds that they could not fund their legal representation, despite the trial judge having indicated in his decision of 7 October 2005 that he would consider any such application with a sympathetic eye. It follows that the applicants' argument that the United Kingdom was in any way responsible for their inability to fund legal representation is unsustainable.

(iii) In the third place, the applicants complain that they were prejudiced in the criminal proceedings against them in Zambia by the leak of evidence from the civil proceedings in the United Kingdom, and by the publication of the civil judgment prior to the conclusion of the criminal proceedings.

The Court observes, first, that it is concerned solely with matters for which the Government of the United Kingdom, as a Contracting State to the Convention, are responsible. To the extent that the applicants' complaints concern the fairness of the criminal proceedings before the Zambian courts, their complaints are incompatible ratione personae with the Convention.

However, the Court accepts that, in a situation where the same defendants were facing simultaneous criminal and civil proceedings, in two different jurisdictions, it was incumbent upon the courts of the United Kingdom to avoid taking any action which would lead to prejudice to the defendants in the foreign proceedings. This was tacitly accepted by the High Court and the Court of Appeal in their decisions in respect of the applications for a stay on the grounds that the applicants' defence to the Zambian proceedings would be undermined by the civil proceedings in the United Kingdom.

Both the trial judge and the Court of Appeal held that the applicants' rights would be adequately protected by an order to “ring-fence” the civil proceedings. The order in question, made by the trial judge on 28 April 2006, provides so far as relevant:

“the trial in the High Court in London and the taking of evidence in Lusaka, Zambia will take place in private ... there will be no use made of any oral evidence, or any documents, including any statement of case, or any witness statements, filed, disclosed, serviced or ordered in the proceedings by the Defendants, or by the Claimant in response thereto, for any purposes (including but not limited to the conduct of investigations and or criminal proceedings in Zambia or any other country) other than these proceedings ... For the avoidance of doubt, if ... this Court should hold that the Claimant (the Attorney General of Zambia for and on behalf of the Republic of Zambia) is in contempt of the above order ... the Claimant gives its consent within the terms of section 13(3) State Immunity Act 1978 to the giving of relief against the Claimant or the issue of process against the Claimant within the terms of section 13(2) State Immunity Act 1978 that this Court may order in relation to such consent.”

In refusing the applicants' application for a stay, the Court of Appeal observed that:

“these provisions should provide appropriate protection for the appellants, at any rate if Zambia can be relied upon to obey the order and honour its undertaking to do so.”

The Court of Appeal further noted that, as a member of the Commonwealth and having indicated its willingness to be liable for contempt of court in the event of a breach of the ring-fencing provisions, there was no reason to believe that Zambia could not be trusted to comply with the provisions. There was no significant risk to the applicants if the civil case proceeded on the basis envisaged.

The Court notes the applicants' contention that the ring-fencing order was breached by the Attorney General of Zambia or his staff, resulting in leaks to the press and eventually forcing them to withdraw from the civil proceedings out of fear that their position in the criminal proceedings would be damaged. However, the Court also notes the trial judge's finding, in the judgment handed down on 4 May 2007, that the ring-fencing order had been breached at the start of the trial by Dr Chiluba, the ex-President, who issued a press release with many of the documents that were subject to the ring fencing order attached. Other Zambia-based defendants also gave statements to the press in which they alluded to ring-fenced material.

Given the different accounts of how the ring-fenced material came to be disclosed to the press and public in Zambia, and the lack of detail or evidence provided by the applicants in support of their allegations, the Court is unable to uphold the applicants' contention that the Attorney General of Zambia, or his staff, breached the ring-fencing order to the detriment of the applicants. The Court further observes that, since the applicants had “discontinued participation” in the proceedings in June 2006, prior to the start of the trial, their argument that the ring-fencing provisions were inadequate to protect them from prejudice in the criminal proceedings as a result of leaked information is, again, largely speculative. As to the publication of the High Court's judgment in Zambia, as ordered by the trial judge, the Court notes the Court of Appeal's comment in dismissing the applicants' application for permission to appeal against the judgment:

“publication of the judgment has not revealed to the public anything about these appellants emanating from them, because there was in effect nothing available and certainly nothing new.”

As the applicants opted not to participate in the civil proceedings from June 2006 onwards, nothing was divulged by them during the trial or in the resultant judgment which could prejudice them in their criminal proceedings.

(iv) In the fourth place, the applicants complain that the trial judge was biased against them. They base this contention mainly on the e-mail correspondence divulged during the course of a later case, Howell, Thompson, etc (cited above). The Court of Appeal, when refusing the applicants permission to appeal against the judgment of the High Court, described the applicants' contention as “absurd,” finding that there was not the slightest basis for assuming that the trial judge had been influenced, in deciding the applicants' case, by his ongoing negotiations with a view to employment by a law firm.

The Court notes that the judgment of the trial judge contained negative references to the applicants, which would be difficult to avoid in a decision which found them liable for the theft of millions of dollars of Zambian public funds. However, the mere fact that the judge in a civil case expresses negative views of a party to the proceedings does not necessarily justify a finding of bias on the part of the judge (see Ranson v. the United Kingdom (dec.) no. 14180/03, 2003, p. 10).

The Court finds no evidence that the judge was biased against the applicants, as required by Kyprianou, cited above. Beyond the fact that the judge made negative comments about them in his judgment, they have not pointed to any matter which may suggest personal bias on his part. They have not therefore met the subjective test. Nor has the objective test been met, as the Court is of the view that there was nothing in the conduct of the trial judge or in the judgment he delivered which might raise doubts as to his impartiality. The Court also notes in this regard that the allegations of bias were raised by the applicants only after judgment had been delivered, namely during the appeal proceedings. The trial judge could not therefore be said to have failed to take any appropriate steps to negate any seeming risk of bias.

(v) In the fifth place, the applicants complain that the British and Zambian Governments were in connivance in order to secure a finding of the applicants' liability in the civil proceedings against them. They base this contention mainly on the fact that the Zambian Task Force on Corruption, the body which was responsible for investigating corruption and instigating legal proceedings, was partially funded by the British Government.

The Court notes at the outset that the applicants bring this complaint under Article 6. Insofar as Article 6 is relevant, the complaint falls to be examined under Article 6 § 1, in that the applicants appear to be arguing that they were not given a fair hearing by an independent and impartial tribunal. The Court observes that the judicial branch of the United Kingdom Government is separate and removed from the executive branch, which would be responsible for the disbursement of any funds to foreign governments. There is therefore no force in the applicants' claim that they did not receive a fair hearing in the courts of the United Kingdom because the Government of the United Kingdom had a vested interest in securing a finding that they were liable in the civil proceedings against them.

It follows that each head of the applicants' complaint under Article 6 of the Convention must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicants complain that they were not afforded an effective remedy in respect of their allegations of bias on the part of the trial judge. Article 13, so far as relevant, provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority...”

The Court recalls that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they are secured in the domestic legal context. Article 13 therefore requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States' obligations under Article 13 varies depending on the nature of the applicant's complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant.

However, for Article 13 to be applicable, the complaint must also be arguable (see, mutatis mutandis, Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, §§ 146 -147). In the instant case, the complaint of a violation of Article 6 due to bias on the part of the trial judge, which the Court has already found to be manifestly ill-founded, was not arguable. Accordingly, the complaint under Article 13 of the Convention taken in conjunction with Article 6 is also manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicants complain that they were subject to discrimination as a result of their Zambian nationality and/or their race. They allege (i) that the courts of the United Kingdom refused to consider their application for a stay of the civil proceedings on the grounds of forum non conveniens; (ii) that they were not afforded the same opportunity to challenge the trial judge's alleged bias as other, British defendants; and (iii) that two American companies involved in the allegedly fraudulent misappropriation of Zambia's public funds were not sued along with the applicants.

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as ... national or social origin ...”

The Court observes at the outset that Article 14 of the Convention does not have an autonomous role, but can be applied only in conjunction with another Article of the Convention.

The Court has already found the applicants' complaints under Article 6 to be manifestly ill-founded. However, since the complaints under Article 14 relate to matters which fall within the ambit of Article 6, the Court is not precluded from considering the merits of the applicants' complaints under Article 14 (see, inter alia, Zarb Adami v. Malta, no. 17209/02, § 42, ECHR 2006 VIII).

The applicants' initial application for a stay of the proceedings included as one of the grounds the issue of forum non conveniens. However, they did not pursue this ground when they appealed against the refusal of a stay. As the Court of Appeal noted in its decision to refuse the appeal,

“It is now correctly accepted that the civil proceedings should, if at all possible, be heard in one jurisdiction, that there is no prospect of the proceedings taking place wholly in Zambia and that it follows that a practical solution must be found consistent with fairness to all parties, including the appellants, which involves the proceedings being determined in England.”

Having accepted at this stage of the domestic proceedings that the forum non conveniens argument was without merit, the applicants cannot now attempt to resuscitate it before the Court. This aspect of their complaint is inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

The applicants also contend that they were discriminated against on the basis of their nationality because they were unsuccessful in their attempts to appeal against the judgment on the grounds of the judge's alleged bias against them, whereas the first defendants, who were an English law firm, were ultimately successful in appealing the judgment. In this regard the Court considers it sufficient to note that the first defendants' grounds of appeal did not include any allegation of bias on the part of the trial judge, and that their appeal succeeded on grounds which did not impact at all upon the applicants. There is therefore no foundation to the applicants' assertion that the differential results of their appeal and that of the first defendants were due to a difference in nationality.

Finally, the applicants claim that they were discriminated against in that they were sued by Zambia, whereas two American companies, allegedly involved in the same activities as the applicants, were not. The Court would simply observe that it was for the Attorney General of Zambia, on behalf of the Republic of Zambia, to decide against whom to initiate civil proceedings. Given that Zambia is not a Contracting State to the Convention, this aspect of the applicants' complaint is incompatible ratione personae with the Convention.

It follows that the first head of the applicants' complaint under Article 14 must be rejected for failure to exhaust domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention; the second head must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention; and the third head must be rejected as incompatible ratione personae with the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Faustin M KABWE and Aaron CHUNGU v the United Kingdom - 29647/08 [2010] ECHR 251 (2 February 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/251.html Cite as: [2010] ECHR 251