|
Стр. 4
соответствии с которыми ответчик ставится в известность о
возбужденном против него деле. Предшествующий этому период
времени, когда истец раздумывает о том, следует ли ему
предъявлять иск, консультируется с юристом или собирает
доказательства, является слишком неопределенным, чтобы служить
точкой отсчета, в нем нельзя найти какой-то определенной даты,
от которой можно было бы отмерить "разумный срок". Если бы это
было не так, то точку отсчета можно было бы отнести назад на
многие месяцы, а в некоторых случаях даже годы, что лишало бы
всякого смысла требование суда "в разумный срок", единственной
реальной целью которого является воспрепятствовать
неоправданным задержкам в рассмотрении дела в суде. Но в
результате Суд занял позицию, что, раз сама статья 6 п. 1 не
определяет какой-либо точки отсчета, ему предстоит определять
ее ad hoc и применительно к каждому конкретному случаю.
Следствием этого стало то, что правительства никогда не могут
знать заранее, в течение какого срока дело должно быть
передано в суд с тем, чтобы выполнить требования указанной
статьи, - совершенно неприемлемая ситуация.
v) Суть в том, что все касающееся права доступа к
правосудию по необходимости затрагивает период, предшествующий
формальному открытию судебного разбирательства, так как, раз
оно началось, доступ к правосудию уже состоялся и вопрос
отпадает сам собой. Следовательно, все эпизоды, связанные с
правом доступа к правосудию как таковым, в частности, все
предполагаемые случаи вмешательства в его осуществление или
лишения его, должны относиться исключительно к периоду до
начала справедливого публичного разбирательства, и только ему
статьей 6 п. 1 предписан разумный срок. Это еще одно
доказательство, что данная статья ничего не говорит о праве
доступа, так как этот вопрос относится к стадии,
предшествующей судебному разбирательству.
vi) Выражение "публичное разбирательство" также создает
трудности, если понимать статью 6 п. 1 как предоставляющую
право доступа к правосудию. Ограничиваясь рассмотрением только
гражданского судопроизводства, хочу отметить, что выражение
"публичное" предполагает слушание дела по существу в открытом
суде, что обычно и происходит, если судебное разбирательство
идет нормально. Однако оно может быть прекращено по разным
основаниям на более ранней стадии. Суть в том, что если такое
происходит, то не в ходе публичного разбирательства, а в
закрытом заседании, где присутствуют обычно только стороны и
их адвокаты. Поэтому, если считать, что статья 6 п. 1
подразумевает право доступа, это означало бы своего рода
неотчуждаемое право на публичное разбирательство при любых
обстоятельствах, нечто меньшее уже не было бы "доступом".
--------------------------------
<29> Это одно из тех мест, где Суд признает, что данное право
не имеет определения, - см. п. 26 - 31 выше, особенно 29 и 30, а
также сопровождающие их сноски.
<30> Конечно, речь идет о том, что суд должен состояться в
разумный срок после обращения к правосудию, а не о том, что доступ
к правосудию должен быть предоставлен в разумный срок.
Мой вывод по вопросу о праве доступа состоит в том, что
независимо от того, нравится нам это или нет, это право нельзя
вывести из статьи 6 п. 1 Конвенции иначе как с помощью такого
процесса толкования, который я не нахожу ни разумным, ни
соответствующим правильно понятому значению права международных
договоров. Если право доступа не может быть найдено в статье 6
п. 1, то очевидно, что ему более нигде нет места в Конвенции. Это
серьезный пробел, который, без сомнения, должен быть исправлен. Но
это задача, которую надлежит выполнить Договаривающимся
государствам, а Суд должен возложить эту задачу на них, а не
пытаться выполнить ее сам.
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF GOLDER v. THE UNITED KINGDOM
JUDGMENT
(Strasbourg, 21.II.1975)
In the Golder case,
The European Court of Human Rights, taking its decision in
plenary session in application of Rule 48 of the Rules of Court
and composed of the following judges:
Mr. G. Balladore Pallieri, President,
Mr. H. Mosler,
Mr. A. Verdross,
Mr. E. Rodenbourg,
Mr. M. Zekia,
Mr. J. Cremona,
Mrs. I. H. Pedersen,
Mr. {T. Vilhjalmsson},
Mr. R. Ryssdal,
Mr. A. Bozer,
Mr. W. J. Ganshof van der Meersch,
Sir Gerald Fitzmaurice,
and also Mr. M.-A. Eissen, Registrar and Mr. J.F. Smyth,
Deputy Registrar,
Having deliberated in private,
Decides as follows:
PROCEDURE
1. The Golder case was referred to the Court by the Government
of the United Kingdom of Great Britain and Northern Ireland
(hereinafter called "the Government"). The case has its origin in
an application against the United Kingdom lodged with the European
Commission of Human Rights (hereinafter called "the Commission")
under Article 25 (art. 25) of the Convention for the Protection of
Human Rights and Fundamental Freedoms (hereinafter referred to as
"the Convention"), by a United Kingdom citizen, Mr. Sidney Elmer
Golder. The application was first submitted in 1969; it was
supplemented in April 1970 and registered under no. 4451/70. The
Commission's report in the case, drawn up in accordance with
Article 31 (art. 31) of the Convention, was transmitted to the
Committee of Ministers of the Council of Europe on 5 July 1973.
2. The Government's application, which was made under Article
48 (art. 48) of the Convention, was lodged with the registry of
the Court on 27 September 1973 within the period of three months
laid down in Articles 32 para. 1 and 47 (art. 32-1, art. 47). The
purpose of the application is to submit the case for judgment by
the Court. The Government therein express their disagreement with
the opinion stated by the Commission in their report and with the
Commission's approach to the interpretation of the Convention.
3. On 4 October 1973, the Registrar received from the
Secretary of the Commission twenty-five copies of their report.
4. On 9 October 1973, the then President of the Court drew by
lot, in the presence of the Registrar, the names of five of the
seven judges called upon to sit as members of the Chamber, Sir
Humphrey Waldock, the elected judge of British nationality, and
Mr. G. Balladore Pallieri, Vice-President of the Court, being ex
officio members under Article 43 (art. 43) of the Convention and
Rule 21 para. 3 (b) of the Rules of Court respectively. The five
judges chosen were MM. R. Cassin, R. Rodenbourg, A. Favre, {T.
Vilhjalmsson} and W. Ganshof van der Meersch, (Article 43 in fine
of the Convention and Rule 21 para. 4) (art. 43). The President
also drew by lot the names of substitute judges (Rule 2l para. 4).
Mr. G. Balladore Pallieri assumed the office of President of
the Chamber in accordance with Rule 21 para. 5.
5. The President of the Chamber ascertained, through the
Registrar, the views of the Agent of the Government and of the
Delegates of the Commission on the procedure to be followed. By
Order of 12 October 1973, he decided that the Government should
file a memorial within a time-limit expiring on 3l January 1974
and that the Delegates should be entitled to file a memorial in
reply within two months of the receipt of the Government's
memorial. The President of the Chamber also instructed the
Registrar to request the Delegates to communicate to the Court the
main documents listed in the report. These documents were received
at the registry on 17 October.
The President later granted extensions of the times allowed,
until 6 March 1974 for the Agent of the Government, and until 6
June and then 26 July for the Delegates (Orders of 21 January, 9
April and 5 June 1974). The Government's memorial was received at
the registry on 6 March 1974 and that of the Commission - with
observations by the applicant's counsel annexed - on 26 July.
6. The Chamber met in private on 7 May 1974. Sir Gerald
Fitzmaurice, who had been elected a member of the Court in January
1974 in place of Sir Humphrey Waldock, took his seat in the Court
as the elected judge of British nationality (Article 43 of the
Convention and Rule 2 para. 3) (art. 43).
On the same day the Chamber, "considering that the case
raise(d) serious questions affecting the interpretation of the
Convention", decided under Rule 48 to relinquish jurisdiction
forthwith in favour of the plenary Court.
The new President of the Court, Mr. Balladore Pallieri,
assumed the office of President.
7. After consulting the Agent of the Government and the
Delegates of the Commission, the President decided, by Order of 6
August 1974, that the oral hearings should open on 11 October.
8. The public hearings took place on 11 and 12 October 1974 in
the Human Rights Building at Strasbourg.
There appeared before the Court:
- for the Government:
Mr. P. Fifoot, Legal Counsellor, Foreign and Commonwealth
Office, Barrister-at-Law, Agent and Counsel,
Sir Francis Vallat, K.C.M.G., Q.C., Professor of International
Law, King's College, London; formerly Legal Adviser to the Foreign
Office,
Mr. G. Slynn, Q.C., Recorder of Hereford, Counsel,
and
Sir William Dale, K.C.M.G., formerly Legal Adviser to the
Commonwealth Office,
Mr. R. M. Morris, Principal, Home Office, Advisers;
- for the Commission:
Mr. G. Sperduti, Principal Delegate,
MM. T. Opsahl and K. Mangan, Delegates, and
Mr. N. Tapp, Q.C., who had represented the applicant before
the Commission, assisting the Delegates under Rule 29 para. 1,
second sentence.
The Court heard the addresses and submissions of Mr. Fifoot,
Sir Francis Vallat and Mr. Slynn for the Government and of Mr.
Sperduti, Mr. Opsahl and Mr. Tapp for the Commission, as well as
their replies to questions put by the Court and by several judges.
At the hearings, the Government produced certain documents to
the Court
AS TO THE FACTS
9. The facts of the case may be summarised as follows.
10. In 1965, Mr. Sidney Elmer Golder, a United Kingdom citizen
born in 1923, was convicted in the United Kingdom of robbery with
violence and was sentenced to fifteen years' imprisonment. In
1969, Golder was serving his sentence in Parkhurst Prison on the
Isle of Wight.
11. On the evening of 24 October 1969, a serious disturbance
occurred in a recreation area of the prison where Golder happened
to be.
On 25 October, a prison officer, Mr. Laird, who had taken part
and been injured in quelling the disturbance, made a statement
identifying his assailants, in the course of which he declared:
"Frazer was screaming ... and Frape, Noonan and another prisoner
whom I know by sight, I think his name is Golder ... were swinging
vicious blows at me."
12. On 26 October Golder, together with other prisoners
suspected of having participated in the disturbance, was
segregated from the main body of prisoners. On 28 and 30 October,
Golder was interviewed by police officers. At the second of these
interviews he was informed that it had been alleged that he had
assaulted a prison officer; he was warned that "the facts would be
reported in order that consideration could be given whether or not
he would be prosecuted for assaulting a prison officer causing
bodily harm".
13. Golder wrote to his Member of Parliament on 25 October and
1 November, and to a Chief Constable on 4 November 1969, about the
disturbance of 24 October and the ensuing hardships it had
entailed for him; the prison governor stopped these letters since
Golder had failed to raise the subject-matter thereof through the
authorised channels beforehand.
14. In a second statement, made on 5 November 1969, Laird
qualified as follows what he had said earlier:
"When I mentioned the prisoner Golder, I said "I think it was
Golder", who was present with Frazer, Frape and Noonan, when the
three latter were attacking me.
"If it was Golder and I certainly remember seeing him in the
immediate group who were screaming abuse and generally making a
nuisance of themselves, I am not certain that he made an attack on
me.
"Later when Noonan and Frape grabbed me, Frazer was also
present but I cannot remember who the other inmate was, but there
were several there one of whom stood out in particular but I
cannot put a name to him."
On 7 November, another prison officer reported that:
"... during the riot of that night I spent the majority of the
time in the T.V. room with the prisoners who were not
participating in the disturbance.
740007, Golder was in this room with me and to the best of my
knowledge took no part in the riot.
His presence with me can be borne out by officer ... who
observed us both from the outside."
Golder was returned to his ordinary cell the same day.
l5. Meanwhile, the prison authorities had been considering the
various statements, and on 10 November prepared a list of charges
which might be preferred against prisoners, including Golder, for
offences against prison discipline. Entries relating thereto were
made in Golder's prison record. No such charge was eventually
preferred against him and the entries in his prison record were
marked "charges not proceeded with". Those entries were expunged
from the prison record in 1971 during the examination of the
applicant's case by the Commission.
16. On 20 March 1970, Golder addressed a petition to the
Secretary of State for the Home Department, that is, the Home
Secretary. He requested a transfer to some other prison and added:
"I understand that a statement wrongly accusing me of
participation in the events of 24th October last, made by Officer
Laird, is lodged in my prison record. I suspect that it is this
wrong statement that has recently prevented my being recommended
by the local parole board for parole.
"I would respectfully request permission to consult a
solicitor with a view to taking civil action for libel in respect
of this statement .... Alternatively, I would request that an
independent examination of my record be allowed by Mrs. G.M.
Bishop who is magistrate. I would accept her assurance that this
statement is not part of my record and be willing to accept then
that the libel against me has not materially harmed me except for
the two weeks I spent in the separate cells and so civil action
would not be then necessary, providing that an apology was given
to me for the libel ...."
17. In England the matter of contacts of convicted prisoners
with persons outside their place of detention is governed by the
Prison Act 1952, as amended, and subordinate legislation made
under that Act.
Section 47, sub-section I, of the Prison Act provides that
"the Secretary of State may make rules for the regulation and
management of prisoners ... and for the ... treatment ...
discipline and control of persons required to be detained ...."
The rules made by the Home Secretary in the exercise of this
power are the Prison Rules 1964, which were laid before Parliament
and have the status of a Statutory Instrument. The relevant
provisions concerning communications between prisoners and persons
outside prison are contained in Rules 33, 34 and 37 as follows:
"Letters and visits generally
Rule 33
(1) The Secretary of State may, with a view to securing
discipline and good order or the prevention of crime in the
interests of any persons, impose restrictions, either generally or
in a particular case, upon the communications to be permitted
between a prisoner and other persons.
(2) Except as provided by statute or these Rules, a prisoner
shall not be permitted to communicate with any outside person, or
that person with him, without the leave of the Secretary of State.
...
Personal letters and visits
Rule 34
...
(8) A prisoner shall not be entitled under this Rule to
communicate with any person in connection with any legal or other
business, or with any person other than a relative or friend,
except with the leave of the Secretary of State.
...
Legal advisers
Rule 37
(1) The legal adviser of a prisoner in any legal proceedings,
civil or criminal, to which the prisoner is a party shall be
afforded reasonable facilities for interviewing him in connection
with those proceedings, and may do so out of hearing but in the
sight of an officer.
(2) A prisoner's legal adviser may, with the leave of the
Secretary of State, interview the prisoner in connection with any
other legal business in the sight and hearing of an officer."
18. On 6 April 1970, the Home Office directed the prison
governor to notify Golder of the reply to his petition of 20 March
as follows:
"The Secretary of State has fully considered your petition but
is not prepared to grant your request for transfer, nor can he
find grounds for taking any action in regard to the other matters
raised in your petition."
19. Before the Commission, Golder submitted two complaints
relating respectively to the stopping of his letters (as mentioned
above at paragraph 13) and to the refusal of the Home Secretary to
permit him to consult a solicitor. On 30 March 1971, the
Commission declared the first complaint inadmissible, as all
domestic remedies had not been exhausted, but accepted the second
for consideration of the merits under Articles 6 para. 1 and 8
(art. 6-1, art. 8) of the Convention.
20. Golder was released from prison on parole on 12 July 1972.
21. In their report, the Commission expressed the opinion:
- unanimously, that Article 6 para. 1 (art. 6-1) guarantees a
right of access to the courts;
- unanimously, that in Article 6 para. 1 (art. 6-1), whether
read alone or together with other Articles of the Convention,
there are no inherent limitations on the right of a convicted
prisoner to institute proceedings and for this purpose to have
unrestricted access to a lawyer; and that consequently the
restrictions imposed by the present practice of the United Kingdom
authorities are inconsistent with Article 6 para. 1 (art. 6-1);
- by seven votes to two, that Article 8 para. 1 (art. 8-1) is
applicable to the facts of the present case;
- that the same facts which constitute a violation of Article
6 para. 1 (art. 6-1) constitute also a violation of Article 8
(art. 8) (by eight votes to one, as explained to the Court by the
Principal Delegate on 12 October 1974).
The Commission furthermore expressed the opinion that the
right of access to the courts guaranteed by Article 6 para. 1
(art. 6-1) is not qualified by the requirement "within a
reasonable time". In the application bringing the case before the
Court, the Government made objection to this opinion of the
Commission but stated in their memorial that they no longer wished
to argue the issue.
22. The following final submissions were made to the Court at
the oral hearing on 12 October 1974 in the afternoon.
- for the Government:
"The United Kingdom Government respectfully submit to the
Court that Article 6 para. 1 (art. 6-1) of the Convention does not
confer on the applicant a right of access to the courts, but
confers only a right in any proceedings he may institute to a
hearing that is fair and in accordance with the other requirements
of the paragraph. The Government submit that in consequence the
refusal of the United Kingdom Government to allow the applicant in
this case to consult a lawyer was not a violation of Article 6
(art. 6). In the alternative, if the Court finds that the rights
conferred by Article 6 (art. 6) include in general a right of
access to courts, then the United Kingdom Government submit that
the right of access to the courts is not unlimited in the case of
persons under detention, and that accordingly the imposing of a
reasonable restraint on recourse to the courts by the applicant
was permissible in the interest of prison order and discipline,
and that the refusal of the United Kingdom Government to allow the
applicant to consult a lawyer was within the degree of restraint
permitted, and therefore did not constitute a violation of Article
6 (art. 6) of the Convention.
The United Kingdom Government further submit that control over
the applicant's correspondence while he was in prison was a
necessary consequence of the deprivation of his liberty, and that
the action of the United Kingdom Government was therefore not a
violation of Article 8 para. 1 (art. 8-1), and that the action of
the United Kingdom Government in any event fell within the
exceptions provided by Article 8 para. 2 (art. 8-2), since the
restriction imposed was in accordance with law, and it was within
the power of appreciation of the Government to judge that the
restriction was necessary in a democratic society for the
prevention of disorder or crime.
In the light of these submissions, Mr. President, I
respectfully ask this honourable Court, on behalf of the United
Kingdom Government, to hold that the United Kingdom Government
have not in this case committed a breach of Article 6 (art. 6) or
Article 8 (art. 8) of the European Convention on Human Rights and
Fundamental Freedoms."
- for the Commission:
"The questions to which the Court is requested to reply are
the following:
(1) Does Article 6 para. 1 (art. 6-1) of the European
Convention on Human Rights secure to persons desiring to institute
civil proceedings a right of access to the courts?
(2) If Article 6 para. 1 (art. 6-1) secures such a right of
access, are there inherent limitations relating to this right, or
its exercise, which apply to the facts of the present case?
(3) Can a convicted prisoner who wishes to write to his lawyer
in order to institute civil proceedings rely on the protection
given in Article 8 (art. 8) of the Convention to respect for
correspondence?
(4) According to the answers given to the foregoing questions,
do the facts of the present case disclose the existence of a
violation of Article 6 and of Article 8 (art. 6, art. 8) of the
European Convention on Human Rights?"
AS TO THE LAW
I. On the alleged violation
of Article 6 para. 1 (art. 6-1)
23. Paragraphs 73, 99 and 110 of the Commission's report
indicate that the Commission consider unanimously that there was a
violation of Article 6 para. 1 (art. 6-1). The Government disagree
with this opinion.
24. Article 6 para. 1 (art. 6-1) 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. Judgment shall be
pronounced publicly but the press and public may be excluded from
all or part of the trial in the interests of morals, public order
or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion of
the court in special circumstances where publicity would prejudice
the interests of justice."
25. In the present case the Court is called upon to decide two
distinct questions arising on the text cited above:
(i) Is Article 6 para. 1 (art. 6-1) limited to guaranteeing in
substance the right to a fair trial in legal proceedings which are
already pending, or does it in addition secure a right of access
to the courts for every person wishing to commence an action in
order to have his civil rights and obligations determined?
(ii) In the latter eventuality, are there any implied
limitations on the right of access or on the exercise of that
right which are applicable in the present case?
A. On the "right of access"
26. The Court recalls that on 20 March 1970 Golder petitioned
the Home Secretary for permission to consult a solicitor with a
view to bringing a civil action for libel against prison officer
Laird and that his petition was refused on 6 April (paragraphs 16
and 18 above).
While the refusal of the Home Secretary had the immediate
effect of preventing Golder from contacting a solicitor, it does
not at all follow from this that the only issue which can arise in
the present case relates to correspondence, to the exclusion of
all matters of access to the courts.
Clearly, no one knows whether Golder would have persisted in
carrying out his intention to sue Laird if he had been permitted
to consult a solicitor. Furthermore, the information supplied to
the Court by the Government gives reason to think that a court in
England would not dismiss an action brought by a convicted
prisoner on the sole ground that he had managed to cause the writ
to be issued - through an attorney for instance - without
obtaining leave from the Home Secretary under Rules 33 para. 2 and
34 para. 8 of the Prison Rules 1964, which in any event did not
happen in the present case.
The fact nonetheless remains that Golder had made it most
clear that he intended "taking civil action for libel"; it was for
this purpose that he wished to contact a solicitor, which was a
normal preliminary step in itself and in Golder's case probably
essential on account of his imprisonment. By forbidding Golder to
make such contact, the Home Secretary actually impeded the
launching of the contemplated action. Without formally denying
Golder his right to institute proceedings before a court, the Home
Secretary did in fact prevent him from commencing an action at
that time, 1970. Hindrance in fact can contravene the Convention
just like a legal impediment.
It is true that - as the Government have emphasised - on
obtaining his release Golder would have been in a position to have
recourse to the courts at will, but in March and April 1970 this
was still rather remote and hindering the effective exercise of a
right may amount to a breach of that right, even if the hindrance
is of a temporary character.
The Court accordingly has to examine whether the hindrance
thus established violated a right guaranteed by the Convention and
more particularly by Article 6 (art. 6), on which Golder relied in
this respect.
27. One point has not been put in issue and the Court takes it
for granted: the "right" which Golder wished, rightly or wrongly,
to invoke against Laird before an English court was a "civil
right" within the meaning of Article 6 para. 1 (art. 6-1).
28. Again, Article 6 para. 1 (art. 6-1) does not state a right
of access to the courts or tribunals in express terms. It
enunciates rights which are distinct but stem from the same basic
idea and which, taken together, make up a single right not
specifically defined in the narrower sense of the term. It is the
duty of the Court to ascertain, by means of interpretation,
whether access to the courts constitutes one factor or aspect of
this right.
29. The submissions made to the Court were in the first place
directed to the manner in which the Convention, and particularly
Article 6 para. 1 (art. 6-1), should be interpreted. The Court is
prepared to consider, as do the Government and the Commission,
that it should be guided by Articles 31 to 33 of the Vienna
Convention of 23 May 1969 on the Law of Treaties. That Convention
has not yet entered into force and it specifies, at Article 4,
that it will not be retroactive, but its Articles 31 to 33
enunciate in essence generally accepted principles of
international law to which the Court has already referred on
occasion. In this respect, for the interpretation of the European
Convention account is to be taken of those Articles subject, where
appropriate, to "any relevant rules of the organization" - the
Council of Europe - within which it has been adopted (Article 5 of
the Vienna Convention).
30. In the way in which it is presented in the "general rule"
in Article 3l of the Vienna Convention, the process of
interpretation of a treaty is a unity, a single combined
operation; this rule, closely integrated, places on the same
footing the various elements enumerated in the four paragraphs of
the Article.
31. The terms of Article 6 para. 1 (art. 6-1) of the European
Convention, taken in their context, provide reason to think that
this right is included among the guarantees set forth.
32. The clearest indications are to be found in the French
text, first sentence. In the field of "contestations civiles"
(civil claims) everyone has a right to proceedings instituted by
or against him being conducted in a certain way -
"{equitablement}" (fairly), "publiquement" (publicly), "dans un
{delai} raisonnable" (within a reasonable time), etc. - but also
and primarily "{a} ce que sa cause soit entendue" (that his case
be heard) not by any authority whatever but "par un tribunal" (by
a court or tribunal) within the meaning of Article 6 para. 1 (art.
6-1) (Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39,
para. 95). The Government have emphasised rightly that in French
"cause" may mean "{proces} qui se plaide" ({Littre}, Dictionnaire
de la langue {francaise}, tome I, p. 509, 5°). This, however, is
not the sole ordinary sense of this noun; it serves also to
indicate by extension "l'ensemble des {interets a} soutenir, {a
faire prevaloir}" (Paul Robert, Dictionnaire {alphabetique} et
analogique de la langue {francaise}, tome I, p. 666, II-2°).
Similarly, the "contestation" (claim) generally exists prior to
the legal proceedings and is a concept independent of them. As
regards the phrase "tribunal {independant} et impartial {etabli}
par la loi" (independent and impartial tribunal established by
law), it conjures up the idea of organisation rather than that of
functioning, of institutions rather than of procedure.
The English text, for its part, speaks of an "independent and
impartial tribunal established by law". Moreover, the phrase "in
the determination of his civil rights and obligations", on which
the Government have relied in support of their contention, does
not necessarily refer only to judicial proceedings already
pending; as the Commission have observed, it may be taken as
synonymous with "wherever his civil rights and obligations are
being determined" (paragraph 52 of the report). It too would then
imply the right to have the determination of disputes relating to
civil rights and obligations made by a court or "tribunal".
The Government have submitted that the expressions "fair and
public hearing" and "within a reasonable time", the second
sentence in paragraph 1 ("judgment", "trial"), and paragraph 3 of
Article 6 (art. 6-1, art. 6-3) clearly presuppose proceedings
pending before a court.
While the right to a fair, public and expeditious judicial
procedure can assuredly apply only to proceedings in being, it
does not, however, necessarily follow that a right to the very
institution of such proceedings is thereby excluded; the Delegates
of the Commission rightly underlined this at paragraph 21 of their
memorial. Besides, in criminal matters, the "reasonable time" may
start to run from a date prior to the seisin of the trial court,
of the "tribunal" competent for the "determination ... of (the)
criminal charge" (Wemhoff judgment of 27 June 1968, Series A no.
7, pp. 26 - 27, para. 19; Neumeister judgment of 27 June l968,
Series A no. 8, p. 41, para. 18; Ringeisen judgment of 16 July
1971, Series A no. 13, p. 45, para. 110). It is conceivable also
that in civil matters the reasonable time may begin to run, in
certain circumstances, even before the issue of the writ
commencing proceedings before the court to which the plaintiff
submits the dispute.
33. The Government have furthermore argued the necessity of
relating Article 6 para. 1 (art. 6-1) to Articles 5 para. 4 and 13
(art. 5-4, art. 13). They have observed that the latter provide
expressly or a right of access to the courts; the omission of any
corresponding clause in Article 6 para. 1 (art. 6-1) seems to them
to be only the more striking. The Government have also submitted
that if Article 6 para. 1 (art. 6-1) were interpreted as providing
such a right of access, Articles 5 para. 4 and 13 (art. 5-4, art.
13) would become superfluous.
The Commission's Delegates replied in substance that Articles
5 para. 4 and 13 (art. 5-4, art. 13), as opposed to Article 6
para. 1 (art. 6-1), are "accessory" to other provisions. Those
Articles, they say, do not state a specific right but are designed
to afford procedural guarantees, "based on recourse", the former
for the "right to liberty", as stated in Article 5 para. 1 (art.
5-1), the second for the whole of the "rights and freedoms as set
forth in this Convention". Article 6 para. 1 (art. 6-1), they
continue, is intended to protect "in itself" the "right to a good
administration of justice", of which "the right that justice
should be administered" constitutes "an essential and inherent
element". This would serve to explain the contrast between the
wording of Article 6 para. 1 (art. 6-1) and that of Articles 5
para. 4 and 13 (art. 5-4, art. 13).
This reasoning is not without force even though the expression
"right to a fair (or good) administration of justice", which
sometimes is used on account of its conciseness and convenience
(for example, in the Delcourt judgment of 17 January 1970, Series
A no. 11, p. 15, para. 25), does not appear in the text of Article
6 para. 1 (art. 6-1), and can also be understood as referring only
to the working and not to the organisation of justice.
The Court finds in particular that the interpretation which
the Government have contested does not lead to confounding Article
6 para. 1 (art. 6-1) with Articles 5 para. 4 and 13 (art. 5-4,
art. 13), nor making these latter provisions superfluous. Article
13 (art. 13) speaks of an effective remedy before a "national
authority" ("instance nationale") which may not be a "tribunal" or
"court" within the meaning of Articles 6 para. 1 and 5 para. 4
(art. 6-1, art. 5-4). Furthermore, the effective remedy deals with
the violation of a right guaranteed by the Convention, while
Articles 6 para. 1 and 5 para. 4 (art. 6-1, art. 5-4) cover claims
relating in the first case to the existence or scope of civil
rights and in the second to the lawfulness of arrest or detention.
What is more, the three provisions do not operate in the same
field. The concept of "civil rights and obligations" (Article 6
para. 1) (art. 6-1) is not co-extensive with that of "rights and
freedoms as set forth in this Convention" (Article 13) (art. 13),
even if there may be some overlapping. As to the "right to
liberty" (Article 5) (art. 5), its "civil" character is at any
rate open to argument (Neumeister judgment of 27 June 1968, Series
A no. 8, p. 43, para. 23; Matznetter judgment of 10 November 1969,
Series A no. 10, p. 35, para. 13; De Wilde, Ooms and Versyp
judgment of 18 June 1971, Series A no. 12, p. 44, para. 86).
Besides, the requirements of Article 5 para. 4 (art. 5-4) in
certain respects appear stricter than those of Article 6 para. 1
(art. 6-1), particularly as regards the element of "time".
34. As stated in Article 31 para. 2 of the Vienna Convention,
the preamble to a treaty forms an integral part of the context.
Furthermore, the preamble is generally very useful for the
determination of the "object" and "purpose" of the instrument to
be construed.
In the present case, the most significant passage in the
Preamble to the European Convention is the signatory Governments
declaring that they are "resolved, as the Governments of European
countries which are like-minded and have a common heritage of
political traditions, ideals, freedom and the rule of law, to take
the first steps for the collective enforcement of certain of the
Rights stated in the Universal Declaration" of 10 December 1948.
In the Government's view, that recital illustrates the
"selective process" adopted by the draftsmen: that the Convention
does not seek to protect Human Rights in general but merely
"certain of the Rights stated in the Universal Declaration".
Articles 1 and 19 (art. 1, art. 19) are, in their submission,
directed to the same end.
The Commission, for their part, attach great importance to the
expression "rule of law" which, in their view, elucidates Article
6 para. 1 (art. 6-1).
The "selective" nature of the Convention cannot be put in
question. It may also be accepted, as the Government have
submitted, that the Preamble does not include the rule of law in
the object and purpose of the Convention, but points to it as
being one of the features of the common spiritual heritage of the
member States of the Council of Europe. The Court however
considers, like the Commission, that it would be a mistake to see
in this reference a merely "more or less rhetorical reference",
devoid of relevance for those interpreting the Convention. One
reason why the signatory Governments decided to "take the first
steps for the collective enforcement of certain of the Rights
stated in the Universal Declaration" was their profound belief in
the rule of law. It seems both natural and in conformity with the
principle of good faith (Article 31 para. 1 of the Vienna
Convention) to bear in mind this widely proclaimed consideration
when interpreting the terms of Article 6 para. 1 (art. 6-1)
according to their context and in the light of the object and
purpose of the Convention.
This is all the more so since the Statute of the Council of
Europe, an organisation of which each of the States Parties to the
Convention is a Member (Article 66 of the Convention) (art. 66),
refers in two places to the rule of law: first in the Preamble,
where the signatory Governments affirm their devotion to this
principle, and secondly in Article 3 (art. 3) which provides that
"every Member of the Council of Europe must accept the principle
of the rule of law ..."
And in civil matters one can scarcely conceive of the rule of
law without there being a possibility of having access to the
courts.
35. Article 31 para. 3 (c) of the Vienna Convention indicates
that account is to be taken, together with the context, of "any
relevant rules of international law applicable in the relations
between the parties". Among those rules are general principles of
law and especially "general principles of law recognized by
civilized nations" (Article 38 para. 1 (c) of the Statute of the
International Court of Justice). Incidentally, the Legal Committee
of the Consultative Assembly of the Council of Europe foresaw in
August 1950 that "the Commission and the Court must necessarily
apply such principles" in the execution of their duties and thus
considered it to be "unnecessary" to insert a specific clause to
this effect in the Convention (Documents of the Consultative
Assembly, working papers of the 1950 session, Vol. III, no. 93, p.
982, para. 5).
The principle whereby a civil claim must be capable of being
submitted to a judge ranks as one of the universally "recognised"
fundamental principles of law; the same is true of the principle
of international law which forbids the denial of justice. Article
6 para. 1 (art. 6-1) must be read in the light of these
principles.
Were Article 6 para. 1 (art. 6-1) to be understood as
concerning exclusively the conduct of an action which had already
been initiated before a court, a Contracting State could, without
acting in breach of that text, do away with its courts, or take
away their jurisdiction to determine certain classes of civil
actions and entrust it to organs dependent on the Government. Such
assumptions, indissociable from a danger of arbitrary power, would
have serious consequences which are repugnant to the
aforementioned principles and which the Court cannot overlook
(Lawless judgment of 1 July 1961, Series A no. 3, p. 52, and
Delcourt judgment of 17 January 1970, Series A no. 11, pp. 14 -
15).
It would be inconceivable, in the opinion of the Court, that
Article 6 para. 1 (art. 6-1) should describe in detail the
procedural guarantees afforded to parties in a pending lawsuit and
should not first protect that which alone makes it in fact
possible to benefit from such guarantees, that is, access to a
court. The fair, public and expeditious characteristics of
judicial proceedings are of no value at all if there are no
judicial proceedings.
36. Taking all the preceding considerations together, it
follows that the right of access constitutes an element which is
inherent in the right stated by Article 6 para. 1 (art. 6-1). This
is not an extensive interpretation forcing new obligations on the
Contracting States: it is based on the very terms of the first
sentence of Article 6 para. 1 (art. 6-1) read in its context and
having regard to the object and purpose of the Convention, a
lawmaking treaty (see the Wemhoff judgment of 27 June 1968, Series
A no. 7, p. 23, para. 8), and to general principles of law.
The Court thus reaches the conclusion, without needing to
resort to "supplementary means of interpretation" as envisaged at
Article 32 of the Vienna Convention, that Article 6 para. 1 (art.
6-1) secures to everyone the right to have any claim relating to
his civil rights and obligations brought before a court or
tribunal. In this way the Article embodies the "right to a court",
of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect
only. To this are added the guarantees laid down by Article 6
para. 1 (art. 6-1) as regards both the organisation and
composition of the court, and the conduct of the proceedings. In
sum, the whole makes up the right to a fair hearing. The Court has
no need to ascertain in the present case whether and to what
extent Article 6 para. 1 (art. 6-1) further requires a decision on
the very substance of the dispute (English "determination", French
"{decidera}").
B. On the "Implied Limitations"
37. Since the impediment to access to the courts, mentioned in
paragraph 26 above, affected a right guaranteed by Article 6 para.
1 (art. 6-1), it remains to determine whether it was nonetheless
justifiable by virtue of some legitimate limitation on the
enjoyment or exercise of that right.
38. The Court considers, accepting the views of the Commission
and the alternative submission of the Government, that the right
of access to the courts is not absolute. As this is a right which
the Convention sets forth (see Articles 13, 14, 17 and 25) (art.
13, art. 14, art. 17, art. 25) without, in the narrower sense of
the term, defining, there is room, apart from the bounds
delimiting the very content of any right, for limitations
permitted by implication.
The first sentence of Article 2 of the Protocol (P1-2) of 20
March 1952, which is limited to providing that "no person shall be
denied the right to education", raises a comparable problem. In
its judgment of 23 July 1968 on the merits of the case relating to
certain aspects of the laws on the use of languages in education
in Belgium, the Court ruled that:
"The right to education ... by its very nature calls for
regulation by the State, regulation which may vary in time and
place according to the needs and resources of the community and of
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