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Article 6 Echr and Immunities Arising in Public International Law1

Published online by Cambridge University Press:  17 January 2008

David LLoyd Jones
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Extract

The Procedural guarantees laid down in Article 6, European Convention on Human Rights in relation to the fairness and expedition of legal proceedings would be meaningless if the Convention did not protect the right of access to the courts which is a precondition to the enjoyment of those guarantees. As a result, the European Court of Human Rights has laid down the principle that Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court. The right of access to the courts is not absolute. The Strasbourg case law acknowledges that it may be subject to limitations. Contracting States enjoy a margin of appreciation in this regard. However, national courts must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Moreover a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 52 , Issue 2 , April 2003 , pp. 463 - 472
Copyright
Copyright © British Institute of International and Comparative Law 2003

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References

2 The first sentence of Article 6(1) ECHR Provides: ‘In the determination of his civil rights and obligations or of any criminal against him, everyone is entitled to a fair and public hearing within a reasonable time by an impartial tribunal established by law.’

3 Golder v Unites Kingdom (1975) EHRR 524., paras 28–36.Google Scholar

4 Ashingdane v United Kingdom(1975) EHRR 528 at para 57;Google ScholarTinnelly & Sons and McElduff v United Kingdom (1998) 27 EHRR 249 at para 72.Google Scholar

5 The distinction drawn under Art 6 between procedural bars and substantive rights is sometimes difficult to apply. See, eg Fayed v United Kingdom (1994) 18 EHRR 393 at para 67;Google Scholar Matthews v Ministry of Defence [2002] 1 WLR 2621, CA (At the time of writing, an appeal to the House of Lords is pending.) It is clear that the immunities arising in public international law considered in this paper bar the remedy and not the right. See, eg, Dickinson v Del Solar [1930] 1 KB 376. However, in Al-Adsani v United Kingdom and Fogarty v United Kingdom the United Kingdom, while drawing attention to this fact, advanced further arguments based on the non-justiciability of the subject matter which, it maintained, went to the essential competence of the national court and which did not constitute a procedural bar within Art 6. (See generally Brownlie, , Principles of Public International Law, 5th edn (1998), 326–8.)Google Scholar In rejecting these arguments, the Court merely referred to the fact that the immunity did not extinguish the right and that immunity could be waived. (Al-Adsani v United Kingdom at paragraph 48; Fogarty v Untied Kingdom at para 26.)

6 Fayed v United Kingdom (1994) 18 EHRR 393 at para 65.Google Scholar

7 To this might be added the immunity of a foreign head of State (see generally R. v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2001] 1 AC 147)Google Scholar, the immunity of a Foreign Minister of a foreign State (see generally Case concerning the Arrest Warrant of 11 April 2000, International Court of Justice, 14 Feb 2002) and the immunity enjoyed by representatives of international organization. Moreover, there is a growing trend in a number of jurisdictions to permit States to claim State immunity on behalf on individuals where the claim relates to acts performed by them in the exercise of sovereign authority. See, eg, Trawink v Lennox [1985] 1 WLR 532; Propend v Sing, unreported, Court of Appeal, 17 Apr 1997; Holland v Lampen-Wolfe [200] 1 WLR 1573 (England); Church of Scientology (1978) 65 ILR 193 (Germany); Jaffe v Miller (1993) 13 OR (3d) 745 (Ontario); Herbage v Meese (1990) 747 F Supp 60 (US District Court, District of Columbia).

8 [2000] 1 WLR 1573.

9 Section 16 (2) provides: ‘This Part of this Act does not apply to proceedings relating to anything done by or in relation to the armed forces of a State while present in the United Kingdom and, particular, has effect subject to the Visiting Forces Act 1952.’

10 At 1581.

11 At 1588.

12 Application No 12516/86; European Commission of Human Rights, 12 Dec 1988. 107 ILR 1.

13 Iran-Untied Stated Claims Tribunal v As, 94 ILR 321; 18 NYIL (1987) 357.

14 Application NO 24236/94; European Commission of Human Rights, 4 Dec 1995. 111 ILR 153.

15 Application No 26083/94, Judgement of 18 Feb 1999. See also Beer and Regan v Germany, Application No 28934/95 Judgement of 18 Feb 1999.

16 At para 49.

17 At para 59.

18 See, however, the criticism of this decision and Beer and Regan v Germany by Gaillard and Pingel-Lenuazza, (2002) 51 ICLQ 1 on the ground that the Court should have affirmed more clearly that only particularly convincing reasons could justify subordinating the principle of access to justice to the immunity of the organization.

19 Application No 35763/97, Judgment of 21 Nov 2001.

20 Application No 37112/97, Judgment of 21 Nov 2001.

21 Application No 31253/96, Judgment of 21 Nov 2001.

22 Fogarty was decided by a majority of 16 to 1, McElhinney by a majority of 12 to 5, and Al-Adsani by a majority of 9 to 8.

23 Decision of 9 Feb 2000.

24 In Fogarty the Court referred to a distinct argument advanced by the United Kingdom, on the basis of Pellegrin v France Application 28541/95, Judgment of 8 Dec 1999, that there was no ‘civil’ involved. It did not consider it necessary to decide to the point.

25 At para 61.

26 At para 66.

27 At para 39.

28 At para 38. The Court also referred, at para 39, to the fact that in the circumstances of that case it would have been open to the Applicant to bring an action in Northern Ireland against the United Kingdom Secretary of State for Defence.

29 At para 40.

30 Case concerning the Arrest Warrant of 11 April 2000, International Court of Justice, 14 Feb 2002, Separate Opinion of Judge Higgins, Judge Kooijimans, and Judge Buergenthal at para 72.

31 At para 38.

32 Al Adsani at para 54; Fogarty at para 34; McElhiney at para 5. Cf Waite and Kennedy at para 63 where the Court defined the legitimate interest as ensuring the proper functioning of international organisations free from unilateral interference by individual governments.

33 Al Adsnai at para 56; Fogarty at para 36; McElhinney at para 37.

34 At para 66.

35 At para 66–7. See also Fogarty at paras 37–9, McElhinney at parag, 38, 40. Cf Waite and Kennedy at para 68 where the court considered that a material factor in determining whether granting the ESA immunity from German jurisdiction was permissible under the Conventions was whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention. See generally Gaillard and Pingel-Lenuzza, (2002) 51 ICLQ 1.

36 The effect of s 16 (1) (a) is to remove from the exception to immunity created by s 4 in the case of employment disputed proceedings concerning the employment of the members of a mission within the Vienna Convention on Diplomatic Relations, 1961 or of the members of a consular post within the meaning of the Vienna Convention on Consular Relations, 1963.