AS TO THE ADMISSIBILITY OF

                      Application No. 22301/93
                      by Morris McKENZIE
                      against the United Kingdom

      The European Commission of Human Rights sitting in private on
1 December 1993, the following members being present:

           MM.   A. WEITZEL, President
                 C.L. ROZAKIS
                 F. ERMACORA
                 E. BUSUTTIL
                 A.S. GÖZÜBÜYÜK
           Mrs.  J. LIDDY
           MM.   M.P. PELLONPÄÄ
                 B. MARXER
                 G.B. REFFI
                 B. CONFORTI
                 N. BRATZA
                 I. BÉKÉS

           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 7 April 1993 by
Morris McKENZIE against the United Kingdom and registered on
21 July 1993 under file No. 22301/93;

      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 applicant is a United Kingdom citizen born in 1928.  He is
resident in South Ronaldsay and is the local Church of Scotland
Minister.  He is represented before the Commission by David MacLennan,
a solicitor practising in Edinburgh.

      The facts of the case, as submitted by the applicant's
representative and insofar as they may be deduced from documents lodged
with the application, may be summarised as follows.

      On 27 February 1991, police officers carried out a five hour
search of the applicant's home and adjacent church, seizing various
articles.  The applicant and his wife were told by the officers that
they and several other adults were suspected of being members of an
organised group who indulged in child sexual abuse.

      The applicant and his wife were detained at a police station for
nearly five hours pursuant to section 2 of the Criminal Justice
(Scotland) Act 1980, which authorises detention at a police station of
a person reasonably suspected of an imprisonable offence for the
purpose of investigating the offence.  Five other adults on the island
also had their houses searched and were detained at the police station.

      The Social Work Department of Orkney Islands Council obtained
Place of Safety Orders over nine children who were removed from Orkney
to the mainland of Scotland where they were kept in foster care at
different homes until 4 April 1991 when their return was ordered by the
Sheriff.  No criminal proceedings have ever been taken against the
applicant and his wife or any of the other five adults detained on
27 February.

      On 20 June 1991, the Secretary of State for Scotland appointed
a Public Inquiry with the following remit:

      "To inquire into the actings of Orkney Islands Council (in
      particular those of their Social Work Department and of their
      Reporter to the Children's Panel for their area), of the Northern
      Constabulary and of all persons acting on behalf of either of
      them, and into the effect on [sic] those actings and the
      attendant publicity in relation to:
      (1)  the decision to seek authority to take to a place of safety
      nine children resident in South Ronaldsay;
      (2)  the removal of those children from their homes on
      27 February 1991;
      (3)  the detention of those children in places of safety
      following the removal and until returned to their homes (and in
      particular how they were cared for and interviewed while so
      detained);
      (4)  the decision not to continue proceedings before the Sheriff
      for a finding on the evidence;
      and to make recommendations."

      The Inquiry heard evidence from 26 August 1991 to 25 March 1992.
The evidence heard included the allegations of organised child sexual
abuse on which the agencies acted but the Inquiry was not required
within the terms of its remit to investigate the truth or falsity of
the allegations.  As the Chairman of the Inquiry put it in his Report
(para. 1.10),

      "A delicate distinction then had to be preserved in relation to
      evidence which could from one point of view be seen as relating
      to the truth or otherwise of the allegations but which was on the
      other hand relevant to an exploration of the reasons for the
      actings of the agencies which were the subject of the Inquiry.
      Such evidence was relevant as reflecting the beliefs of the
      persons carrying out those activities.  Whether the beliefs were
      true or not had to be left as a distinct and unresolved question.
      That delicate distinction had to be recognised in the evidence
      throughout the Inquiry and some care had to be taken to stress
      that any references made to organised abuse involving the nine
      children  were always intended as references to merely alleged
      abuse. The matter was the more sensitive when it became apparent
      that although the Crown had indicated that there was no intention
      to pursue the earlier criminal investigation it was stated that
      certain other police investigations were still proceeding so that
      there was a necessity to steer clear of matters which might yet
      require to be examined in another context. The substance of the
      allegations was not explored and the adults identified in them
      were and remain entitled to rely on the basic presumption of
      innocence."

      During the Inquiry, witnesses identified the applicant as the
central figure during the alleged instances of child sexual abuse.
They were asked to state publicly their view of the truth or falsity
of the allegations and some witnesses were asked whether they believed
the allegations made by some of the alleged victims of the abuse.  The
applicant was not permitted to give evidence or lead any evidence to
refute the allegations due to the terms of the remit of the Inquiry.
Nor was he permitted to give any interviews to the media during the
course of the Inquiry.

      At no point before or during the Inquiry was the applicant
notified by the authorities that there would be no further proceedings
with respect to the matters that had caused him to be detained by the
police.  During the inquiry it was stated that certain other
investigations were still proceeding.  By the date of his application
the applicant had still not been notified as to whether or not criminal
investigation was still continuing.

      The Inquiry reported on 27 October 1992.

COMPLAINTS

      The applicant complains that the Public Inquiry determined his
civil right to honour and reputation without a fair and public hearing
in breach of Article 6 para. 1 of the Convention. He was unable by the
terms of the remit to give evidence or counter evidence relating to the
truth of falsity of the allegations against him.

      The applicant complains of a denial of effective access to court
to have determined the justification of an attack on his reputation,
in further breach of Article 6 para. 1.
      The applicant complains also that the Public Inquiry amounted to
the determination of criminal charges against him without a fair and
public hearing contrary to Article 6 para. 1 and without affording him
the minimum right to defend himself contrary to Article 6 para. 3(c).
In addition the terms of remit of the Inquiry are alleged to have
violated the presumption of innocence, in breach of Article 6 para. 2
of the Convention, in that he was held out to be guilty of criminal
conduct without an opportunity to prove his innocence.

      The applicant further complains that there are no effective
remedies before a national authority of the United Kingdom, in breach
of Article 13 of the Convention.

THE LAW

1.    The applicant complains that the proceedings before the Inquiry
determined his civil right to reputation and honour without affording
him the guarantees of fairness imposed by Article 6 para. 1
(Art. 6-1) of the Convention which, so far as relevant 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 recalls that the right to honour and reputation
is a "civil right" within the meaning of Article 6 para. 1
(Art. 6-1) (see eg. No. 808/60, ISOP v. Austria, Dec. 8.3.62, Yearbook
5 pp. 108, 122; No. 7116/75, X v. Federal Republic of Germany, Dec.
4.12.76, D.R. 7 p. 91; No. 10877/84,  Wallen v. Sweden, Dec. 16.5.85,
D.R. 43 pp. 184, 186; No. 11430/85, Sciarretta v. Italy, Dec. 16.10.85,
D.R. 50, p. 191; No. 10594/83, Munro v. U.K., Dec. 14.7.87, D.R. 52,
p. 158).

      The Commission further recalls that for the "civil rights" limb
of Article 6 para. 1 (Art. 6-1) to be applicable, there has to be a
"determination" of a civil right ( a "contestation").  It is clear from
the case-law of the Court that for proceedings to amount to a
"contestation " it is sufficient that the outcome should be "decisive
for private rights and obligations" (see eg. Eur. Court H.R., Ringeisen
judgment of 16 July 1971, Series A no. 13, p.39, para. 94; Eur. Court
H.R., H v. France judgment of 24 October 1989, Series A no. 162-A,
p. 20 para. 47; Eur. Court H.R., Benthem judgment of 23 October 1985,
Series A no.97, p. 16 para. 36).

      In deciding whether there is a "contestation" as to a civil
right, the Court has held that the word "contestation" should be given
a substantive rather than a formal meaning (Eur. Court H.R., Le Compte,
Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43,
p.20, para. 45).  The Commission must therefore consider whether the
nature of the Inquiry was such as to amount in substance to a dispute,
or "contestation", the outcome of which would be decisive of the
applicant's civil right to honour and reputation.
      The Commission notes from the terms of remit that the purpose of
the Inquiry was to inquire into the actings of the various agencies
involved in the matter of the removal of nine children from Orkney and
to make recommendations.  Such an investigative inquiry culminating in
a report with recommendations does not lead to a decision determinative
of rights and in the Commission's view is not therefore a procedure to
which Article 6 para. 1 (Art. 6-1) applies.

      The Commission finds that, since the applicant's honour and
reputation were not the subject of dispute ("contestation") at the
Inquiry, neither the proceedings themselves nor the publication of the
Inquiry Report "determined" the applicant's civil right to honour and
reputation within the meaning of Article 6 para. 1 (Art. 6-1).

      It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.    The applicant also complains of a further breach of Article 6
para. 1 (Art. 6-1) in that any action for defamation against witnesses
at the Public Inquiry would be met by a defence of absolute or
qualified privilege, thereby denying his right of access to a court to
have the justification of any attack upon his reputation determined.

      The Commission recalls that it has constantly held that Article 6
para. 1 (Art. 6-1) grants the right of access to court to have
determined the justification of attacks upon a person's reputation (see
the line of case-law derived from ISOP v. Austria cited above).

      Article 6 para. 1 (Art. 6-1) does not in itself however guarantee
any particular content for "rights and obligations" in the substantive
law of the contracting states (see eg. Eur. Court H.R., James and
others judgment of 21 February 1986, Series A no. 98, para. 81; Eur.
Court H.R., Lithgow and other judgment of 8 July 1986, Series A no.
102, p. 70, para. 192).

      In the present case, the content of the right to protect
reputation may be regarded as limited in domestic law by the defence
of privilege. It is therefore questionable whether the existence of
this defence, the applicability and extent of which can be contested
in the courts can be construed as thereby depriving the applicant of
access to court in the determination of his "civil rights and
obligations".

      However, even assuming that the availability of the defence of
privilege, whether absolute or qualified, to any action in defamation
brought by the applicant is taken as constituting a limitation on the
right to bring defamation proceedings and therefore as a restriction
on effective access to court to vindicate the civil right of honour and
reputation (see No. 17101/90, Fayed v. United Kingdom, Comm. Rep.
7.4.93, pending before the European Court of Human Rights), the
Commission finds that the requirements of Article 6 para. 1 (Art. 6-1)
were not violated for the reasons set out below.

      The Commission recalls that the right of access to court
guaranteed by Article 6 para. 1 (Art. 6-1) is not absolute, but may be
regulated by States, which have a certain margin of appreciation,
provided the essence of the right is not impaired (see Eur. Court H.R,,
Ashingdane judgment of 28 May 1985, Series A no. 93, pp.24-25 para.s
55-57).

      The Commission must therefore examine whether the limitation on
access to court which results from the availability of the defence of
privilege pursues a legitimate aim and bears a reasonable relationship
of proportionality to that aim in the circumstances.

      The Commission notes that the limitation on access created by the
fact that witnesses at the Inquiry can avail themselves of the defence
of privilege in any subsequent defamation proceedings pursues the aim
of encouraging witnesses to be candid at the Inquiry.  The Commission
considers it to be a matter of general public interest and necessary
in a democratic society that governments appoint public inquiries to
investigate specific instances of suspected public maladministration
which have caused considerable public concern.  Publication of the
Inquiry Report enables the public to be better informed about the way
in which governmental services operate and is likely to lead to an
overall improvement in administrative standards.  The Inquiry's
recommendations may also lead to beneficial legislative or policy
changes.  In the context of this general public interest in the holding
of such investigative Inquiries, the Commission considers that the aim
of encouraging frankness in giving evidence is legitimate.

      The question remains whether the defence of privilege bears a
reasonable relationship of proportionality to this legitimate aim.  In
this respect the Commission notes that, as a matter of United Kingdom,
the witnesses at the Inquiry would enjoy only qualified privilege in
view of the investigative, non-judicial nature of the Inquiry.  There
was no adversarial issue between parties to be decided by the Inquiry
as if it was acting as a court of law.  A defamation action against
witnesses who gave evidence at the Inquiry would therefore succeed to
the extent that malice on their part could be proved.

      The Commission also notes that in the conduct of the Inquiry the
Chairman was bound by the rules of procedural propriety, so that any
unfair decision by him affecting the applicant could have been
challenged by the applicant by way of judicial review.

      In the Commission's view, the fact that the witnesses' privilege
was qualified and not absolute, and the availability of judicial review
of the proceedings at the Inquiry, provide sufficient guarantees for
persons affected which are proportionate to the general public interest
in holding investigative public inquiries at which witnesses give their
evidence with full candour.

      In the light of these considerations, the Commission finds that
the likelihood of an action for defamation being met by an effective
defence of privilege represents a limitation on the applicant's right
of access to court which does not impair the essence of that right, nor
transgress the principle of proportionality, in the determination of
the applicant's separate right to honour and reputation.  It concludes,
therefore, that there is no appearance of a violation of Article 6
para. 1 (Art. 6-1) of the Convention disclosed in this respect.

      It 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 applicant also complains that the Inquiry amounted to the
determination of a criminal charge against him without a fair and
public hearing, and that he was deprived of the right to be presumed
innocent until proved guilty and the minimum right to defend himself
in person, contrary to Article 6 paras 1, 2 and 3 (c)
(Art. 6-1, 6-2, 6-3-c) respectively.

      Article 6 para. 2 (Art. 6-2) provides:

      "2.  Everyone charged with a criminal offence shall be presumed
      innocent until proved guilty according to law."

      Article 6 para. 3 (c) (Art. 6-3-c) provides, so far as relevant:

      "3.  Everyone charged with a criminal offence has the following
      minimum rights:
      ...
           c. to defend himself in person or through legal assistance
      of his own choosing ...."

      The Commission therefore has to ascertain whether there was a
"criminal charge" against the applicant  or whether he was "charged
with a criminal offence" within the meaning of the above provisions.

      The Commission recalls that these expressions are to be
interpreted as having an autonomous meaning in the context of the
Convention and not on the basis of their meaning in domestic law (see
Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no.35,
p. 22 para. 42).  The prominent place held in a democratic society by
the right to a fair trial favours a substantive rather than a formal
conception of the "charge" referred to by Article 6 (Art. 6) (see Eur.
Court H.R., Adolf judgment of 26 March 1982, Series A no. 49, p. 15
para. 30).

      The notion of a "criminal charge" has been defined by the Court
for the purposes of Article 6 para. 1 (Art. 6-1) as "the official
notification given to an individual by the competent authority of an
allegation that he has committed a criminal offence" (see eg. Eur.
Court H.R. Deweer judgment, loc. cit. p. 24 para. 46; Eckle judgment
of 15 July 1982, Series A no. 51, p. 33 para. 73).  The Commission
refers also to its own case-law in which it has adopted the test of
whether the situation of the suspect has been affected by a possible
criminal prosecution (see eg.  No. 17101/90, Dec. 15.5.92, to be
published in D.R.).

      The Commission notes that the applicant was informed by the
police that he was suspected of having committed offences in relation
to child abuse. Since then it has never been stated clearly and
publicly by the competent authorities that no criminal proceedings
would be brought against the applicant. In these circumstances the
applicant could consider himself to be affected by a possible criminal
prosecution and, therefore, to be subject to a "criminal charge" within
the meaning of Article 6 para. 1 (Art. 6-1) from 27 February 1991.

      The Commission considers however that in the present case there
has been no "determination" of the criminal charge against the
applicant.  The Commission has already noted that the purpose of the
Inquiry was to inquire into the actings of the various agencies
involved in the matter of the removal of nine children from Orkney and
to make recommendations.  The Inquiry did not conduct a criminal
investigation, nor did the Inquiry Report make any findings that the
applicant had committed any criminal offence.  The Inquiry was not
determinative of the applicant's criminal liability and therefore the
criminal limb of Article 6 para. 1 (Art. 6-1) was not applicable to the
proceedings before the Inquiry. On the same basis, Article 6 para. 3
(c) (Art. 6-3-c) cannot be relied upon as requiring that the applicant
be afforded the opportunity to defend himself in the context of the
Inquiry.

      It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      As regards the complaint under Article 6 para. 2 (Art. 6-2), the
Commission considers that there is no appearance of a violation of this
provision.  The Inquiry chairman was fully aware of the need to
distinguish the relevance of evidence to the subject matter of the
Inquiry from its relevance to the truth or falsity of the allegations,
with which the Inquiry was not concerned.  He referred in his report
in the care taken in the proceedings to emphasise that references to
abuse of the children  concerned alleged abuse and that the adults
identified in them were entitled to the presumption of innocence.

      It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4.    The applicant further complains of a breach of Article 13
(Art. 13), alleging that there are no effective remedies before a
national authority for their above Convention claims.  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 that Article 13 (Art. 13) only applies to
claims which fall within the scope of one of the substantive provisions
of the Convention (see No. 6753/74, Comm. Dec. 19.12.74, D.R. 2 p. 118,
119; No.7598/76, Comm. Rep. 17.7.80, D.R. 21 p.5, 35).  To the extent
that the Commission has already found that Article 6 para. 1, 2 and
3 (c) (Art. 6-1, 6-2, 6-3-c) were not applicable to the Inquiry
proceedings, it follows that there is no basis in the present case for
the applicability of Article 13 (Art. 13) in conjunction with those
complaints which the Commission finds incompatible ratione materiae.

      In regard to the other complaints, the Commission recalls that
Article 13 (Art. 13) of the Convention does not require a remedy under
domestic law in respect of every alleged violation of the Convention.
It only applies if the applicant 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).  The
Commission  has found above that the applicant's remaining complaints
under Article 6 (Art. 6) of the Convention are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
In the light of the reasons upon which those findings are based, the
Commission also considers that the facts of the present case fail to
disclose an "arguable claim" of a violation of these provisions and the
applicant therefore cannot derive from Article 13 (Art. 13) of the
Convention a right to a remedy for these Convention claims.  It follows
that to this extent the applicant's complaint under Article 13
(Art. 13) of the Convention is manifestly ill-founded.

      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

      (M.F. BUQUICCHIO)                           (A. WEITZEL)