Seizure of worker’s wages breached Convention right – Strasbourg
20 May 2014
Paulet v United Kingdom Paulet (application no. 6219/08) – read judgment
The Strasbourg Court has declared, by five votes to one, that the UK authorities had acted unlawfully by seizing the wages of an Ivorian worker who used a false passport to gain employment. The majority ruled that the UK courts should have balanced individual property rights against interests of the general public.
This case on the confiscation of the proceeds of crime raises many difficult legal questions such as the nature of the link between the crime and the proceeds and the distribution of the burden of proof in establishing this link. Mr Paulet complained that the confiscation order against him had been disproportionate as it amounted to the confiscation of his entire savings over nearly four years of genuine work, without any distinction being made between his case and those involving more serious criminal offences such as drug trafficking or organised crime. The Court found that the UK courts’ scope of review of Mr Paulet’s case had been too narrow. The majority objected to the fact that the domestic courts had simply found that the confiscation order against Mr Paulet had been in the public interest, without balancing that conclusion against his right to peaceful enjoyment of his possessions as required under the European Convention.
Notably, the Strasbourg Court assumed that the confiscation of the proceeds of crime should be dealt with under the Convention in the same way as any other interference with property rights, an assumption which was attacked in a very strong dissent by Judge Wojtyczek:
there is a fundamental difference between possessions acquired in a lawful way and possessions acquired through crime. Furthermore, the assumption in question is difficult to reconcile with the very wide margin of appreciation left to States in the field of criminal law, especially if the punishable acts fall outside the scope of the rights protected under the Convention and the Protocols.
Such an approach, he points out, opens the way to the review of the proportionality of punishments imposed by the domestic courts in criminal matters, and may transform the Court into a further instance assessing the merits of criminal cases.
The following summary is based on the Court’s press release.
The applicant, Didier Pierre Paulet, is an Ivoirian national who arrived in the United Kingdom in January 2001 and lived illegally at an address in Bedford. Between April 2003 and February 2007 he obtained three jobs – with a recruitment agency, in a cash and carry business and as a forklift truck driver – using a false French passport. On applying for a provisional driving licence in January 2007, Mr Paulet’s passport was discovered and criminal proceedings were brought against him. In June 2007 he pleaded guilty in Luton Crown Court to, among other offences, obtaining a pecuniary advantage by deception. He was subsequently sentenced to a total of 17 months’ imprisonment and a confiscation order was imposed in the sum of 21,949.60 pounds sterling. Mr Paulet argued on appeal that the confiscation order was an abuse of process as it amounted to the confiscation of his entire savings over nearly four years of genuine work. He submitted in particular that a confiscation order could be described as “oppressive” if it did not pursue the legitimate aim of stripping defendants of the proceeds of crime, reiterating that Parliament had intended the legislation to be compatible with the European Convention of Human Rights. His appeal was dismissed in July 2009 on the ground that the confiscation order had not amounted to an abuse of process as there was not only a link between his earnings and the criminal offences, but also a wider public interest in confiscation as he had deliberately circumvented the prohibition against him seeking employment in the UK.
Relying on Article 1 of Protocol No. 1 , Mr Paulet complained that the confiscation order against him had been disproportionate, submitting that his case should have been distinguished from cases involving more serious criminal offences such as drug trafficking or organised crime.
The Strasbourg Court upheld his complaint and awarded him damages.
Reasoning behind the Court’s decision
It was not in dispute that the confiscation order against Mr Paulet had amounted to an interference with his right to peaceful enjoyment of his possessions and that such interference by a State was allowed under the second paragraph of Article 1 of Protocol No. 1 to “control the use of property to secure the payment of penalties”. The Court had to consider, however, whether the proceedings as a whole had given Mr Paulet a reasonable opportunity to put his case to the competent authorities so that they could establish a fair balance between the conflicting interests at stake, namely Mr Paulet’s right to protection of his property and the requirements of the general interest. The Court noted that Mr Paulet had argued before the national courts that a confiscation order would be “oppressive” or an “abuse of process” under domestic law if the benefit figure could properly be described as “disproportionate”, either in the traditional sense used in criminal proceedings or in the language of the Convention. The Court of Appeal held that the confiscation order was not an “abuse of process” as the appropriate link between Mr Paulet’s earnings and his criminal offences, in the context of the wider public interest, was plainly established. The Court accepted that at the time the applicant brought his complaint before the domestic courts, it had been appropriate for him to argue it as he did. In this regard, it noted that it was only in 2012, while giving judgment in another confiscation case (R. v. Waya), that the UK Supreme Court found that it would be preferable under British law to analyse confiscation cases in terms of proportionality under Article 1 of Protocol No. 1 than for complainants to invoke the concept of “abuse of process”.
Nevertheless, the Court found that as domestic law had only permitted the national courts to consider whether or not a confiscation order was “oppressive” or an “abuse of process” at the time Mr Paulet’s case was decided, the scope of review carried out by them had been too narrow. As a result, the Court concluded that, in the circumstances of this case, there had been a violation of Article 1 of Protocol No. 1. Under Article 41 (just satisfaction) the Court held, by five votes to two, that the United Kingdom was to pay Mr Paulet 2,000 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 to cover the costs and expenses of Mr Paulet’s lawyer.
Two of the judges would have gone even further in their finding of a violation of Mr Paulet’s right to peaceful enjoyment of his earnings. Noting that the prosecuting authorities defined and confiscated his “genuinely earned” savings as the “proceeds of the crime” of using a false passport, Judges Kalaydjieva and Bianku deplored the forging of a “non-existent link” between the use of a false passport and the genuine earning of the confiscated amounts. It was therefore wrong of the majority to consider this measure as one that was merely disproportionate under the second paragraph of Article 1 Protocol 1:
Such an assumption is apt to regard any irregular employment as criminal, with the result that any earnings from such employment would be subject to confiscation in the exercise of “the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties” within the meaning of the second paragraph of Article 1 of Protocol No. 1 to the Convention.
Since Mr Paulet’s employment as such was not of a criminal nature and that the criminal origin of the confiscated earnings could not be reasonably assumed, in their view the present case fell to be examined under the first paragraph of this provision, which calls for closer scrutiny of the public interest pursued by the measure and of the clarity and foreseeability of the conditions provided for by law for the purposes of such confiscation.
One might wonder why this subtle distinction should matter, given that Mr Paulet won his case and was awarded damages. But, say the judges in this section, the findings of the majority with regard to the limited judicial scrutiny performed were not sufficient:
the view that it is not necessary to reach any conclusions in respect of (the lawfulness and/or) the proportionality of the confiscation order leaves the applicant’s essential grievances unaddressed both at the domestic level and by the Court.
For this reason, Mr Paulet should have been awarded pecuniary damages as well as general damages.
It is hard to see why such an award would have been justified. After all, as the Court of Appeal had said in the original case, throughout the period of his employment Mr Paulet had been relying on “a continuing dishonest representation to three different employers”:
He deceived them into thinking that he was entitled to obtain employment with them. That was a crucial element of his criminality. His earnings, of course, reflected the fact that he had done the necessary work, as we shall assume, to the satisfaction of his various employers. But the opportunity for him to do so, that is the pecuniary advantage, was unlawfully obtained.
Furthermore, at the time Mr Paulet’s appeal against the confiscation order was considered, the Supreme Court had not decided Waya. The UK courts were therefore entitled to believe that their power of review in relation to applications for a stay of a confiscation order on the ground of “oppression” was sufficiently wide to enable the issue of proportionality, for the purposes of the protection of the right of property afforded by Article 1 of Protocol 1, to be adequately examined.
Judge Wojtyczek’s lone voice of dissent signals the danger of the Court’s self-aggrandising approach in this case. Substituting its own assessment of the facts for that made by the domestic courts, it reached its finding of a violation in the absence of any evidence to suggest that the applicant bore an individual and excessive burden under Article 1 Protocol 1.
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