“Civil rights” in Strasbourg: development or dithering?
15 April 2011
In a very short judgment about asset freezing orders the Court of Appeal has made some tart observations about the inchoate nature of Strasbourg’s rulings. These will no doubt have a certain resonance given the current fervid discussion about the competence of that court.
It was all in the context of an apparently esoteric argument about the precise nature of judicial review proceedings and whether or not they are covered by the fair trial guarantees of Article 6. The respondents’ names been placed on a United Nations list of persons believed to be associated with terrorism. The purpose and effect of listing was to freeze the listed person’s assets, to place the release of any funds at the discretion of the executive, and thereby to make him a prisoner of the state.
They sought judicial review of decisions of the secretary of state to take steps which resulted in their listing. It was common ground that all the decisions of the Foreign and Commonwealth Office were justiciable as forms of allegedly unlawful conduct on the part of the state in which the claimants had a sufficient interest to seek judicial review. But the claimants argued that the substance of the claims concerned listing decisions taken in Whitehall which would destroy the reputations and private lives of anybody named (Article 8) as well as paralysing their assets (Article 1 Protocol 1), thus attacking civil rights recognised by the Convention itself. Therefore, they contended, the inexorable invasion of their Convention rights meant that these claims involved “civil rights” within the meaning of Article 6(1).
The judge below decided, as a preliminary point, that the substance of these claims did concern civil rights. The secretary of state appealed, arguing that the alleged infringement of Convention rights was at most a side-effect of what is in every material respect a challenge to the legality of the exercise of sovereign powers, and in no more than a marginal sense a vindication of civil rights.
The Court of Appeal allowed the Secretary of State’s appeal.
The term “civil rights” under Article 6 had an autonomous meaning, said Sedley LJ, adding this somewhat wintry observation:
The Strasbourg court has made this clear on more than one occasion. What is neither certain nor clear is what that meaning is.
There follows a succinct account of Strasbourg jurisprudence on this point, from registration of a doctor Konig v Germany (No1) (1979-80) 2 EHRR 170 (civil right) to liability to tax (not a civil right) (Ferrazini v Italy (44759/98) (2001) STC 1314), via the all important decision in Pellegrin v France (2001) 31 EHRR 26 ECHR not to allow administrative servants the guarantees of Article 6 because their employment involves important state imperatives.
In some of these cases Article 6 is said to apply because they involve private law (or civil) rights. In others they don’t because the proceedings are said to be administrative. This portfolio of judgments is usually unfurled in Article 6 cases to illustrate Strasbourg’s “development” of the concept of “civil rights”. Now some are beginning to suspect it of being mere dithering, since these judgments constantly contradict each other and form no coherent picture.
Strasbourg always invokes the “living instrument” mantra to explain away its inconsistencies and to inflate its role as lawmaker by expanding the implied rights under the Convention. Some of the difficulties created by the Court’s complicated jurisprudence on the concept of “civil rights” are illustrated by a case heard by Nichols J on the same day as the Court of Appeal was deciding – see our post.
Lord Roger has criticised this haphazard nature of Strasbourg’s rulings, long before it became fashionable to do so:
The problem which the House [of Lords] has to face, quite squarely, is that the judgments and decisions of the European Court do not speak with one voice. If the differences were merely in emphasis, they would be shrugged off as being of no significance. In reality, however, some of them appear much more serious and so present considerable difficulties for national courts which have to try to follow the jurisprudence of the European Court. (Al-Skeini v Secretary of State [2007] UKHL 26, and see comment]
It may be for this reason that Sedley LJ found the categorisation of freezing orders in this context “extremely difficult”, but nevertheless gleans from the present Strasbourg jurisprudence that,
while civil rights within the autonomous meaning of article 6 can be brought into play either by direct challenge or by administrative action, it is the nature and purpose of the administrative action which determines whether its impact on private law rights is such that a legal challenge to it involves a determination of civil rights
The nature and purpose of freezing orders could be described both as a step in the struggle to contain terrorism and as a targeted assault by the state on an individual’s privacy, reputation and property. The judge’s conclusion was while the listing of the appellants was, in form, the first of those alternatives, it was, in substance, the second. The Strasbourg jurisprudence, however, did not make such a distinction but looked to the nature of the power itself. Looked at in that way, the procuring of a freezing order was a discharge of public functions, albeit with a dramatic impact on the civil rights of the individual concerned. While it was challengeable in public law, the challenge was to the procuring and continuance of the order rather than as to its effect.
These proceedings were of a somewhat academic nature since it is “extremely doubtful” that the issue the Court of Appeal has decided will have any real impact on the conduct or outcome of these claims . But the Secretary of State pursued the appeal because he wanted it to be established that Article 6 did not apply, since he was of the view that this will make a difference to the extent to which sensitive material will have to be disclosed to the claimants for use in open court as opposed to disclosure to the claimants’ special advocates for use in closed session. The Court of Appeal judges were unanimous in their opinion that the standard of fairness set by the common law for the determination of issues arising in civil litigation was no less robust than the standards set by article 6 of the Convention.
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Common justice and common law tell us that everyone has a right to be presumed innocent until proven guilty and that no-one should be punished before a fair trial before his or her peers.
Freezing orders without conviction and pre-charge Restraint Orders have turned justice on its head.
The learned judges make detailed assessments from various case law but we have to remember that so did learned judges in the 70’s when they upheld draconian and harrowing sentences against children in the 1970’s.
These hapless victims of the state were committed for ‘crimes’ ranging from having sex to being found to be drunk under age. Removed from their parents they were imprisoned, in highly abusive (sometimes sexually abusive) environments, until the age of 19 and many were just 13 years old when convicted by the learned judges.
No-one today would think it right to imprison a child for up to 6 years for being drunk or for having sex.
In the not too distant future we will be equally as shocked that learned judges could uphold freeing orders before conviction or Restraint Orders before charge.