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You are here: BAILII >> Databases >> European Court of Human Rights >> Golder v. United Kingdom - 4451/70 [1975] ECHR 1 (21 February 1975) URL: http://www.bailii.org/eu/cases/ECHR/1975/1.html Cite as: [1975] ECHR 1, (1979-80) 1 EHRR 524, 1 EHRR 524, (1979) 1 EHRR 524, (1975) 1 EHRR 524 |
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JUDGMENT
STRASBOURG
21 February 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. Vilhjálmsson,
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
Mr. G. Balladore Pallieri assumed the office of President of the Chamber in accordance with Rule 21 para. 5.
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.
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.
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
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."
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.
"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 ...."
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."
"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."
- 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.
- 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)
"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."
(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"
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.
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.
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".
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.
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.
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 "décidera").
B. On the "Implied Limitations"
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 individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention." (Series A no. 6, p. 32, para. 5).
These considerations are all the more valid in regard to a right which, unlike the right to education, is not mentioned in express terms.
It is not the function of the Court to elaborate a general theory of the limitations admissible in the case of convicted prisoners, nor even to rule in abstracto on the compatibility of Rules 33 para. 2, 34 para. 8 and 37 para. 2 of the Prison Rules 1964 with the Convention. Seised of a case which has its origin in a petition presented by an individual, the Court is called upon to pronounce itself only on the point whether or not the application of those Rules in the present case violated the Convention to the prejudice of Golder (De Becker judgment of 27 March 1962, Series A no. 4, p. 26).
In petitioning the Home Secretary for leave to consult a solicitor with a view to suing Laird for libel, Golder was seeking to exculpate himself of the charge made against him by that prison officer on 25 October 1969 and which had entailed for him unpleasant consequences, some of which still subsisted by 20 March 1970 (paragraphs 12, 15 and 16 above). Furthermore, the contemplated legal proceedings would have concerned an incident which was connected with prison life and had occurred while the applicant was imprisoned. Finally, those proceedings would have been directed against a member of the prison staff who had made the charge in the course of his duties and who was subject to the Home Secretary's authority.
In these circumstances, Golder could justifiably wish to consult a solicitor with a view to instituting legal proceedings. It was not for the Home Secretary himself to appraise the prospects of the action contemplated; it was for an independent and impartial court to rule on any claim that might be brought. In declining to accord the leave which had been requested, the Home Secretary failed to respect, in the person of Golder, the right to go before a court as guaranteed by Article 6 para. 1 (art. 6-1).
II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The Court accordingly finds itself called upon to ascertain whether or not the refusal of the applicant's petition violated Article 8 (art. 8).
As the Commission have emphasised, that submission is not in keeping with the manner in which the Court dealt with the issue raised under Article 8 (art. 8) in the "Vagrancy" cases (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93). In addition and more particularly, that submission conflicts with the explicit text of Article 8 (art. 8). The restrictive formulation used at paragraph 2 (art. 8-2) ("There shall be no interference ... except such as ...") leaves no room for the concept of implied limitations. In this regard, the legal status of the right to respect for correspondence, which is defined by Article 8 (art. 8) with some precision, provides a clear contrast to that of the right to a court (paragraph 38 above).
It is beyond doubt that the interference was "in accordance with the law", that is Rules 33 para. 2 and 34 para. 8 of the Prison Rules 1964 (paragraph 17 above).
The Court accepts, moreover, that the "necessity" for interference with the exercise of the right of a convicted prisoner to respect for his correspondence must be appreciated having regard to the ordinary and reasonable requirements of imprisonment. The "prevention of disorder or crime", for example, may justify wider measures of interference in the case of such a prisoner than in that of a person at liberty. To this extent, but to this extent only, lawful deprivation of liberty within the meaning of Article 5 (art. 5) does not fail to impinge on the application of Article 8 (art. 8).
In its judgment of l8 June 1971 cited above, the Court held that "even in cases of persons detained for vagrancy" (paragraph 1 (e) of Article 5) (art. 5-1-e) - and not imprisoned after conviction by a court – the competent national authorities may have "sufficient reason to believe that it (is) 'necessary' to impose restrictions for the purpose of the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others". However, in those particular cases there was no question of preventing the applicants from even initiating correspondence; there was only supervision which in any event did not apply in a series of instances, including in particular correspondence between detained vagrants and the counsel of their choice (Series A no. 12, p. 26, para. 39, and p. 45, para. 93).
In order to show why the interference complained of by Golder was "necessary", the Government advanced the prevention of disorder or crime and, up to a certain point, the interests of public safety and the protection of the rights and freedoms of others. Even having regard to the power of appreciation left to the Contracting States, the Court cannot discern how these considerations, as they are understood "in a democratic society", could oblige the Home Secretary to prevent Golder from corresponding with a solicitor with a view to suing Laird for libel. The Court again lays stress on the fact that Golder was seeking to exculpate himself of a charge made against him by that prison officer acting in the course of his duties and relating to an incident in prison. In these circumstances, Golder could justifiably wish to write to a solicitor. It was not for the Home Secretary himself to appraise - no more than it is for the Court today - the prospects of the action contemplated; it was for a solicitor to advise the applicant on his rights and then for a court to rule on any action that might be brought.
The Home Secretary's decision proves to be all the less "necessary in a democratic society" in that the applicant's correspondence with a solicitor would have been a preparatory step to the institution of civil legal proceedings and, therefore, to the exercise of a right embodied in another Article of the Convention, that is, Article 6 (art. 6).
The Court thus reaches the conclusion that there has been a violation of Article 8 (art. 8).
III. AS TO THE APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
The Rules of Court state that when the Court "finds that there is a breach of the Convention, it shall give in the same judgment a decision on the application of Article 50 (art. 50) of the Convention if that question, after being raised under Rule 47 bis, is ready for decision; if the question is not ready for decision", the Court "shall reserve it in whole or in part and shall fix the further procedure" (Rule 50 para. 3, first sentence, read together with Rule 48 para. 3).
At the hearing in the afternoon of 11 October 1974, the Court invited the representatives, under Rule 47 bis, to present their observations on the question of the application of Article 50 (art. 50) of the Convention in this case. Those observations were submitted at the hearing on the following day.
Furthermore, in reply to a question from the President of the Court immediately following the reading of the Commission's final submissions, the Principal Delegate confirmed that the Commission were not presenting, nor making any reservation as to the presentation of, a request for just satisfaction on the part of the applicant.
The Court considers accordingly that the above question, which was duly raised by the Court, is ready for decision and should therefore be decided without further delay. The Court is of opinion that in the circumstances of the case it is not necessary to afford to the applicant any just satisfaction other than that resulting from the finding of a violation of his rights.
FOR THESE REASONS, THE COURT,
Done in French and English, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-first day of February one thousand nine hundred and seventy five.
Giorgio BALLADORE PALLIERI
President
Marc-André EISSEN
Registrar
Judges Verdross, Zekia and Sir Gerald Fitzmaurice have annexed their separate opinions to the present judgment, in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court.
G.B.P.
M.-A.E.
I have voted in favour of the parts of the judgment which relate to the violation of Article 8 (art. 8) and the application of Article 50 (art. 50) of the Convention, but much to my regret I am unable to join the majority in their interpretation of Article 6 para. 1 (art. 6-1) for the following reasons.
The Convention makes a clear distinction between the rights and freedoms it secures itself (Article 1) (art. 1) and those which have their basis in the internal law of the Contracting States (Article 60) (art. 60). In the last recital in the Preamble, the Contracting States resolved to take steps for the collective enforcement of "certain of the Rights stated in the Universal Declaration" (certains des droits énoncés dans la Déclaration Universelle) and, according to Article 1 (art. 1), the category of rights guaranteed comprises only "the rights and freedoms defined in Section I" of the Convention. It thus seems that the words "stated" and "defined" are synonymous. As "to define" means to state precisely, it results, in my view, from Article 1 (art. 1) that among such rights and freedoms can only be numbered those which the Convention states in express terms or which are included in one or other of them. But in neither of these cases does one find the alleged "right of access to the courts".
It is true that the majority of the Court go to great lengths to trace that right in an assortment of clues detected in Article 6 para. 1 (art. 6-1) and other provisions of the Convention.
However, such an interpretation runs counter, in my opinion, to the fact that the provisions of the Convention relating to the rights and freedoms guaranteed by that instrument constitute also limits on the jurisdiction of the Court. This is a special jurisdiction, for it confers on the Court power to decide disputes arising in the course of the internal life of the Contracting States. The norms delimiting the bounds of that jurisdiction must therefore be interpreted strictly. In consequence, I do not consider it permissible to extend, by means of an interpretation depending on clues, the framework of the clearly stated rights and freedoms. Considerations of legal certainty too make this conclusion mandatory: the States which have submitted to supervision by the Commission and Court in respect of "certain" rights and freedoms "defined" (définis) in the Convention ought to be sure that those bounds will be strictly observed.
The above conclusion is not upset by the argument, sound in itself, whereby the right to a fair hearing before an independent and impartial tribunal, secured to everyone by Article 6 para. 1 (art. 6-1), assumes the existence of a right of access to the courts. The Convention in fact appears to set out from the idea that such a right has, with some exceptions, been so well implanted for a long time in the national legal order of the civilised States that there is absolutely no need to guarantee it further by the procedures which the Convention has instituted. There can be no other reason to explain why the Convention has refrained from writing in this right formally. In my opinion, therefore, a distinction must be drawn between the legal institutions whose existence the Convention presupposes and the rights guaranteed by the Convention. Just as the Convention presupposes the existence of courts, as well as legislative and administrative bodies, so does it also presupposes, in principle, the existence of the right of access to the courts in civil matters; for without such a right no civil court could begin to operate.
Nor is my reasoning refuted by contending that, if the right of access had its basis solely in their national legal order, the member States of the Council of Europe could, by abolishing the right, reduce to nothing all the Convention's provisions relating to judicial protection in civil matters. For if these States were really determined on destroying one of the foundations of Human Rights, they would be committing an act contrary to their own will to create a system based on "a common understanding and observance of the Human Rights upon which they depend" (fourth recital in the Preamble).
I adopt, with respect, the introductory part of the judgment dealing with procedure and facts and also the concluding part dealing with the application of Article 50 (art. 50) of the Convention to the present case. I agree also with the conclusion reached regarding the violation of Article 8 (art. 8) of the Convention subject to some variation in the reasoning.
I have felt unable, however, to agree with my eminent colleagues in the way Article 6 para. 1 (art. 6-1) of the Convention has been interpreted by them and with their conclusion that a right of access to the courts ought to be read into Article 6 para. 1 (art. 6-1) and that such right is to be considered as being embodied therein. The outcome of their interpretation is that the United Kingdom has committed a contravention of Article 6 para. 1 (art. 6-1) of the Convention by disallowing prisoner Golder to exercise his right of access to the courts.
I proceed to give hereunder, as briefly as I can, the main reasons for my dissenting opinion on this part of the judgment.
There is no doubt that the answer to the question whether right of access to courts is provided in Article 6 para. 1 (art. 6-1), depends on the construction of the said Article. We have been assisted immensely by the representatives of both sides in the fulfilment of our duties in this respect.
There appears to be a virtual consensus of opinion that Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties, although with no retroactive effect, contain the guiding principles of interpretation of a treaty. There remains the application of the rules of interpretation formulated in the aforesaid Convention to Article 6 para. 1 (art. 6-1) of the European Convention.
Article 31 para. 1 of the Vienna Convention reads "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". No question arises as to good faith, therefore what remains for consideration is (a) text, (b) context, (c) object and purpose. The last two elements might very well overlap on one another.
A. Text
Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights reads:
"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."
The above Article (art. 6-1), read in its plain and ordinary meaning, refers to criminal charges brought against a person and to the civil rights and obligations of a person when such rights and obligations are sub judice in a court of law. The very fact that the words immediately following the opening words of the paragraph, that is, the words following the phrase "In the determination of his civil rights and obligations or of any criminal charge against him" deal exclusively with the conduct of proceedings, i.e., public hearings within a reasonable time before an impartial court and pronouncement of judgment in public, plus the further fact that exceptions and/or limitations given in detail in the same paragraph again exclusively relate to the publicity of the court proceedings and to nothing else, strongly indicate that Article 6 para. 1 (art. 6-1) deals only with court proceedings already instituted before a court and not with a right of access to the courts. In other words Article 6 para. 1 (art. 6-1) is directed to the incidents and attributes of a just and fair trial only.
Reference was made to the French version of Article 6 para. 1 (art. 6-1) and specifically to the words "contestations sur ses droits" in the said Article (art. 6-1). It has been maintained that the above quoted words convey a wider meaning than the corresponding English words in the English text. The words in the French text embrace, it is argued, claims which have not reached the stage of trial.
The English and French text are both equally authentic. If the words used in one text are capable only of a narrower meaning, the result is that both texts are reconcilable by attaching to them the less extensive meaning. Even if we apply Article 33 of the Vienna Convention in order to find which of the two texts is to prevail, we have to look to the preceding Articles 31 and 32 of the same Convention for guidance. Having done this I did not find sufficient reason to alter the view just expressed. So much for the reading of the text which no doubt constitutes "the primary source of its own interpretation".
B. Context
I pass now to the contextual aspect of Article 6 para. 1 (art. 6-1). As I said earlier, the examination of this aspect is bound to overlap with considerations appertaining to the object and purpose of a treaty. There is no doubt, however, that interpretation is a single combined operation which takes into account all relevant facts as a whole.
Article 6 para. 1 (art. 6-1) occurs in Section I of the European Convention on Human Rights and Fundamental Freedoms which section comprises Articles 2-18 (art. 2, art. 3, art. 4, art. 5, art. 6, art. 7, art. 8, art. 9, art. 10, art. 11, art. 12, art. 13, art. 14, art. 15, art. 16, art. 17, art. 18) defining rights and freedoms conferred on people within the jurisdiction of the Contracting States. Article 1 (art. 1) requires the Contracting Parties to "secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention". The obligations undertaken under this Convention by Contracting States relate to the rights and freedoms defined. It seems almost impossible for anyone to contend that Article 6 para. 1 (art. 6-1) defines a right of access to courts.
A study of Section I discloses: Article 5, paras. 4 and 5 (art. 5-4, art. 5-5), deals with proceedings to be taken before a court for deciding the lawfulness or otherwise of detention and gives to the victim of unlawful detention an enforceable right to compensation.
Articles 9, 10 and 11 (art. 9, art. 10, art. 11) deal with rights or freedoms in respect of thought, expression, religion, peaceful assembly and association, etc. What is significant about these Articles (art. 9, art. 10, art. 11) is the fact that each Article prescribes in detail the restrictions and limitations attached to such right.
Article 13 (art. 13) reads:
"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."
This Article (art. 13) indicates a right of access to the courts in respect of violations of rights and freedoms set forth in the Convention. In my view courts come within the ambit of "national authority" mentioned in the Article (art. 13).
Article 17 (art. 17) provides, inter alia, that no limitation to a greater extent than is provided for in the Convention is allowed to the rights and freedoms set forth therein.
The relevance of this Article (art. 17) lies in the fact that, if right of access is to be read into Article 6 para. 1 (art. 6-1), such right of access will have to be an absolute one because no restrictions or limitations are mentioned in regard to this right. No one can seriously argue that the Convention contemplates an absolute and unfettered right of access to courts.
It is common knowledge and it may be taken for granted that right of access to the national courts, as a rule, does exist in all civilised democratic societies. Such right, and its exercise, usually is regulated by constitution, legislation, custom and by subsidiary laws such as orders and court rules.
Article 60 (art. 60) of the Convention keeps intact such human rights as are provided by national legislation. Right of access being a human right is no doubt included in the human rights referred to in Article 60 (art. 60). This in a way fills up the gap for claims in respect of which no specific provision for right of access is made in the Convention.
The competence of the courts, as well as the right of the persons entitled to initiate proceedings before a court, are regulated by laws and rules as above indicated. One commences proceedings by filing an action, petition or application in the registry of the court of first instance or of the superior court. One has to pay the prescribed fees (unless entitled to legal aid) and cause the issue of writs of summons or other notices. Persons might be debarred unconditionally or conditionally from instituting proceedings on account of age, mental condition, bankruptcy, frivolous and vexatious litigation. One may have to make provision for security of costs and so on.
After the institution of proceedings and before a case comes up for hearing there are many intervening procedural steps. A master, or a judge in chambers and not in open court, is empowered in a certain category of cases to deal summarily and finally with a claim in an action, petition or application. Such is the case for instance when claim as endorsed on a writ, or as stated in the pleadings, does not disclose any cause of action or, in the case of a defendant or respondent, his reply or points of defence do not disclose a valid defence in law.
All this, digression, is simply to emphasise the fact that if in the Convention it was intended to make the right of access an integral part of Article 6 para. 1 (art. 6-1), those responsible for drafting the Convention would, no doubt, have followed their invariable practice, after defining a human right and freedom, to prescribe therein the restrictions and limitations attached to such right and freedom.
Surely if a right of access, independently of those expressly referred to in the Convention, was to be recognised to everybody within the jurisdictions of the High Contracting Parties, unrestricted by laws and regulations imposed by national legislation, one would expect such right to be expressly provided in the Convention. The care and pains taken in defining human rights and freedoms in the Convention and minutely prescribing the restrictions, indicate strongly that right of access is neither expressly nor by necessary implication or intendment embodied in Article 6 para. 1 (art. 6-1).
One might also remark: if there is no right of access to courts, what is the use of making copious provisions for the conduct of proceedings before a court?
If, indeed, provisions relating to the right of access were altogether lacking in the Convention - although this is not the case - I would concede that by necessary implication and intendment such a right is to be read as being incorporated in the Convention, though not necessarily in the Article in question. I would have acted on the assumption that the Contracting Parties took the existence of such right of access for granted.
C. Object and purpose
Article 6 para. 1 (art. 6-1) could by no means be under-estimated, when it is read with its ordinary meaning, without any right of access being integrated into it. Public hearing within reasonable time before an impartial tribunal, with delivery of judgment in open court, - although one might describe them as procedural matters – nevertheless are fundamentals in the administration of justice, and therefore Article 6 para. 1 (art. 6-1) has and deserves its raison d'être in the Charter of Human Rights, without grafting the right of access onto it. Its scope of operation will still be very wide.
The Preamble of the European Convention on Human Rights and Fundamental Freedoms in its concluding paragraph declares: "Being 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 step for the collective enforcement of certain of the Rights stated in the Universal Declaration." I think the United Kingdom Government was not unjustified in drawing our attention to the words "to take the first steps" and to the words "enforcement of certain of the Rights", occurring in that paragraph.
As to the references made to the travaux préparatoires of the Convention, the Universal Declaration of Human Rights, the European Convention on Establishment, the International Covenant on Civil and Political Rights and other international instruments, I am content to make only very short observations. In the travaux préparatoires of the Declaration, the early drafts included expressly the words "right of access" but these words were dropped before the text took its final form.
Article 8 of the Universal Declaration contains a right of access to courts for violations of fundamental rights granted by constitution or by law.
Article 10 of the Universal Declaration more or less corresponds to the main part of Article 6 para. 1 (art. 6-1) of the European Convention and it does not refer to a right of access. It seems the main part of Article 6 para. 1 (art. 6-1) followed the pattern of Article 10 of the Universal Declaration. And so too does Article 14 para. 1 of the International Covenant.
Article 7 of the European Convention on Establishment provides expressly a "right of access to the competent judicial and administrative authorities". The same applies to Article 2 para. 3 of the International Covenant.
The above supports the view that when right of access to courts was intended to be incorporated in a treaty, this was done in express terms.
I have already endeavoured to touch the main elements of interpretation in some order. When all elements are put together and considered compositively, to my mind the combined effect lends greater force to the correctness of the opinion submitted.
As to Article 8 (art. 8)
The Home Secretary, by not allowing prisoner Golder to communicate with his solicitor with a view to bringing an action for libel against the prison officer, Mr. Laird, was depriving the former of obtaining independent legal advice.
In the circumstances of the case I find that Golder was denied right of respect for his correspondence and such denial amounts to a breach of the Article (art. 8) in question.
In an action for libel Mr. Laird might succeed in a plea of privilege and prove non-existence of malice. The Home Secretary or the Governor of Prisons might reasonably believe that Golder had no chance of sustaining an action, but in principle I am inclined to the view that unless there are overriding considerations of security a prisoner should be allowed to communicate with, and consult, a solicitor or a lawyer and obtain independent legal advice.
Introduction
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others."
Two principal categories of questions - or doubts - arise with regard to this provision: is it applicable at all to the circumstances of the present case? - and secondly, if it is applicable in principle, does the case fall within any limitations on, or exceptions to, the rule it embodies?
A. The question of applicability
B. Limitations and exceptions
l5. More important however, is the fact that the real reason for the refusal in Golder's case does not seem to have been "necessity" at all, but the character of his claim; and here the true underlying issue is reached. A practice whereby contact with a solicitor about possible legal proceedings is refused because the executive authority has determined that the prisoner has no good legal ground of claim, not only cannot be justified as "necessary" etc. (does not even pretend so to be), - it cannot be justified at all, because it involves the usurpation of what is essentially a judicial function. To say this is not, even for a moment, to throw any doubt on the perfect good faith of the authorities in taking the view they did about Golder's claims. But that is not the point. The point is that it was motivated by what was in effect a judicial finding, - not, however, one emanating from any judicial authority, but from an executive one. Yet it is precisely one of the functions of a judicial system to provide, through judicial action, and after hearing argument if necessary, means for doing what the prison authorities, acting executively, and without hearing any argument - at least from Golder himself or his representative - did in the present case. All normal legal systems - including most certainly the English one – have procedures whereby, at a very early stage of the proceedings, a case can (to use English terminology) be "struck out" as frivolous or vexatious or as disclosing no cause of action - (grounds roughly analogous to the "abuse of the right of petition", or "manifestly illfounded" petition, in human rights terminology)[9]. This can be done, and usually is, long before the case would otherwise have reached the trial judge, had it gone forward for trial; but nevertheless it is done by a judicial authority, or one acting judicially. It may be a minor or lesser authority, but the judicial character both of the authority and of the proceedings remains.
A. The applicability aspect
B. The interpretational aspect
24. These are the kind of considerations which, it seems to me, account for the almost total irreconcilability that has characterized the arguments of the participants about the interpretation of Article 6.1 (art. 6-1); - on the one side chiefly the Commission, on the other the United Kingdom Government. Their approaches have been made from opposite ends of the spectrum. One has only to read the views and contentions of the Commission as set forth in, for instance, its Report for transmission to the Committee of Ministers[11], to find these seemingly convincing - given the premises on which they are based and the approach that underlies them. Equally convincing however are those advanced on behalf of the United Kingdom Government in its written memorial[12] and oral arguments[13] before the Court, on the basis of another approach and a quite different set of premises. The conclusion embodied in the Judgment of the Court, after taking into account the arguments of the United Kingdom, is to the same effect as that of the Commission. My own conclusion will be a different one, partly because I think a different approach is required, but partly also because I believe that the Court has proceeded on the footing of methods of interpretation that I regard as contrary to sound principle, and furthermore has given insufficient weight to certain features of the case that are very difficult to reconcile with the conclusion it reaches.
1. The question of approach
"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."
It is evident on the face of it that the direct (and the only direct right) right conveyed by this provision is a right to (i) "a fair and public hearing", (ii) "within a reasonable time", and (iii) by a tribunal which is "independent", "impartial", and "established by law". Naturally the question of these several matters, viz. of a not unduly delayed fair and public hearing before an impartial tribunal, etc., can only arise if some proceedings, civil or criminal, have actually been commenced and are currently going through their normal course of development. But that is not the point. The point is that this says nothing whatever in terms as to whether there shall be any proceedings. The Article (art. 6-1) assumes the factual existence of proceedings, in the sense (but no further) that, if there were none, questions of fair trial, etc. would have no relevance because they could not arise. The Article (art. 6-1) can therefore only come into play if there are proceedings. It is framed on the basis that there is a litigation which, as my colleague Judge Zekia puts it, is sub judice. But that is as far as its actual language goes. It does not say that there must be proceedings whenever anyone wants to bring them. To put the matter in another way, the Article simply assumes the existence of a fact, viz. that there are proceedings, and then, on the basis of that fact, conveys a right which is to operate in the postulated event (of proceedings), - namely a right to a fair trial, etc. But it makes no direct provision for the happening of the event itself - that is to say for any right to bring the event about. In short, so far as its actual terms go, it conveys no substantive right of access independently of and additional to the procedural guarantees for a fair trial, etc., which are clearly its primary object. The question is therefore, must it be regarded as doing so by a process of implication?
Digression: Article 1 (art. 1) of the Convention
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in ... this Convention."
The operative word here, in the present context, is "defined"; and in consequence, the effect of this provision - (since it is rights and freedoms "defined" in the Convention that the States parties to it are to secure to everyone within their jurisdiction) - is to exclude from that obligation anything not so defined. Therefore, even if, in order to avoid relying on what might be regarded as a technicality, one refrains from attempting a "definition of defining", as compared with, say, mentioning, indicating, or specifying[15], the question necessarily arises whether a right or freedom that is not even mentioned, indicated or specified, but merely - at the most - implied, can be said to be one that is "defined" in the Convention in any sense that can reasonably be attributed to the term "defined"? In my opinion, not; and on this question I am in entire agreement with the views expressed by my colleague Judge von Verdross.
3l. In consequence, there is here a further point at which, as in the case of what was discussed in paragraphs 19-22 of this Opinion, a term could, so far as I am concerned, logically be put to the question of the effect of Article 6.1 (art. 6-1) - for since that provision does not define, then whatever is the right or freedom it might imply, that right or freedom would not come within the scope of Article 1 (art. 1) and its overall governing obligation. This is also precisely Judge von Verdross' view. That this conclusion may legitimately suggest the deduction that Article 6.1 (art. 6-1) does not in fact imply any such right or freedom, but deals only with the modalities of litigation, leads naturally to a resumption of the discussion broken off at the end of paragraph 25 above where, it having emerged quite clearly from the analysis previously made, that Article 6.1 (art. 6-1), while assuming the existence of proceedings, did not in terms give expression to any positive right to bring them, the question was asked whether the Article (art. 6-1) must nevertheless be regarded as doing so by a process of implication or inference. Also raised was the further question of what it would be proper and legitimate to imply by means of such a process.
Resumption on the question of approach
i. The Court's approach
"Were Article 6.1 (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."
(a) The consequences foreshadowed are completely unrealistic or at the best highly exaggerated.
(b) The argument embodies a well known logical fallacy, in so far as it proceeds on the basis that without a right of access the safeguards for a trial provided for by Article 6.1 (art. 6-1) would be rendered nugatory and objectless, - so that the one must necessarily entail the other. This is merely to perpetuate the type of fallacy arising out of what is known to philosophers as the "King of France" paradox, - the paradox of a sentence which, linguistically, makes sense, but actually is absurd, namely the assertion "the King of France is bald". The paradox vanishes however when it is seen that the assertion in no way logically implies that there is a King of France, but merely that, rightly or wrongly, if there is one, he is bald. But that there is one must be independently established; and, as is well known, there is in fact no King of France. Similarly, one could provide all the safeguards in the world for the well being of the King of France, did he exist, yet the fact that these would all be rendered nugatory and objectless did he not do so, would in no way establish, or be compelling ground for saying that he did, or must be assumed to. In the same way, the safeguards for a fair trial provided by Article 6.1 (art. 6-1) will operate if there is a trial, and if not, not. They in no way entail that there must be one, or that a right of access must be postulated in order to bring one about. The Judgment also abounds in the type of logical fallacy that derives B from A because A does not in terms exclude B. But non-exclusion is not ipso facto inclusion. The latter still remains to be demonstrated.
(c) Finally, it must be said that the above quoted passages from the Judgment of the Court are typical of the cry of the judicial legislator all down the ages - a cry which, whatever justification it may have on the internal or national plane[21], has little or none in the domain of the inter-State treaty or convention based on agreement and governed by that essential fact[22]. It may, or it may not be true that a failure to see the Human Rights Convention as comprising a right of access to the courts would have untoward consequences - just as one can imagine such consequences possibly resulting from various other defects or lacunae in this Convention. But this is not the point. The point is that it is for the States upon whose consent the Convention rests, and from which consent alone it derives its obligatory force, to close the gap or put the defect right by an amendment, - not for a judicial tribunal to substitute itself for the convention-makers, to do their work for them. Once wide interpretations of the kind now in question are adopted by a court, without the clearest justification for them based solidly on the language of the text or on necessary inferences drawn from it, and not, as here, on a questionable interpretation of an enigmatic provision, considerations of consistency will, thereafter, make it difficult to refuse extensive interpretations in other contexts where good sense might dictate differently: freedom of action will have been impaired.
ii. A different approach
39. These various factors could justify even a somewhat restrictive interpretation of the Convention but, without going as far as that, they must be said, unquestionably, not only to justify, but positively to demand, a cautious and conservative interpretation, particularly as regards any provisions the meaning of which may be uncertain, and where extensive constructions might have the effect of imposing upon the contracting States obligations they had not really meant to assume, or would not have understood themselves to be assuming. (In this connexion the passage quoted in the footnote below[24] from the oral argument of Counsel for the United Kingdom before the Commission should be carefully noted.) Any serious doubt must therefore be resolved in favour of, rather than against, the government concerned, - and if it were true, as the Judgment of the Court seeks to suggest, that there is no serious doubt in the present case, then one must wonder what it is the participants have been arguing about over approximately the last five years!
iii. Intentions and drafting method
"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."
This, it will be seen, gave no general right of access, and was really a procedural article of the same basic type as Article 5, paragraph 4, and Article 13 (art. 5-4, art. 13), of the European Convention, to which I shall come later (see footnote 14 supra), - and which the Court's Judgment itself holds not to comprise the sort of right of access it professes to find in Article 6.1 (art. 6-1). Article 8 of the Universal Declaration was followed almost immediately by another provision (Article 10)[26] which simply says:
"Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him" - (my italics).
I have italicized the last phrase of this Article in the Universal Declaration because it makes it quite clear that, subject to the change of order, which has no effect on the meaning, this was the source from which the first sentence of Article 6.1 (art. 6-1) of the European Convention was derived (see text set out in paragraph 25 supra). It no more expresses in terms any substantive right of access to the courts independently of, and over and above the purely procedural guarantee of a fair trial, etc., which is all its actual terms specify, than does the parallel passage in Article 6.1 (art. 6-1) of the European Convention.
"Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature."
If, in this provision, a full stop occurred after the word "hearing" in the opening line, and it then resumed separately with the rest of the text, it could be said that a general right of access was expressly formulated. It is quite clear however (omitting as irrelevant for present purposes the parenthetical phrase "with due guarantees and within a reasonable time") that the word "hearing" links up directly with (and is qualified by) the requirement of a hearing by a "competent ... tribunal". The emphasis, as in Article 6.1 (art. 6-1) of the European Convention, is on the character of the hearing rather than on an a priori and independent right to have a hearing.
"The text of Art. 8 was based upon an amendment introduced by the Mexican representative in the Third Committee of the General Assembly on 23 October 1948. The representative stated that his amendment only repeated the text of the Bogota Declaration which had recently been adopted unanimously by 21 Latin American Deputations. The relevant provision of the Bogota Declaration was Art. XVIII. This says: 'Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights'.
The source of Art. 8 of the Universal Declaration in Art. XVIII of the Bogota Declaration is very interesting because Art. XVIII of the Bogota Declaration is in the first sentence talking about the right of every person to resort to the courts to ensure respect for his legal rights, and in Art. 8 of the Universal Declaration this has been inverted and narrowed to read: 'Everyone has a right to an effective remedy by the competent national tribunals'."
Counsel then subsequently[28] drew the following conclusion, which is also mine, namely that "if one looks at this history as a whole, what it amounts to is this: that what started in the Declaration of Bogota as a broad right of access has been narrowed down to a right of access related to the rights secured by the Convention".
2. Particular texts and terms
(a) The Preamble - This (as has already been mentioned in paragraph 42) recites specifically that the signatory Governments are resolved "to take the first steps" for the collective enforcement of "certain of the Rights" stated in the Universal Declaration of Human Rights which, as has been seen (paragraph 41 supra) makes no provision for any independent right of access as such, so that such a right does not even enter into the category of those that the European Convention might cover. But even if it figured in that category as a right possibly to be covered - as, so to speak, a "qualifying right" – it would be a compelling implication of the language used in the Preamble, that it would not necessarily be included. Only "certain" of the qualifying rights were to figure, and a general right of access was not, on the basis of the Universal Declaration, even a qualifying right. In addition, the Parties were only proposing to take "the first steps", and to cover only "certain" of the rights. Thus, so far from it being "inconceivable" that provision for a right of access should not be found in the European Convention, that result becomes a fully conceivable one that need cause no surprises nor seizures.
(b) Article 1 (art. 1) of the Convention (see paragraphs 26-31 supra) has the effect of requiring that before it becomes incumbent on the contracting States to "secure to everyone within their jurisdiction" the rights and freedoms figuring in that part of the Convention that comprises Article 6.1 (art. 6-1), such rights and freedoms shall be "defined". No right of access however is there even mentioned, let alone "defined". Definitions must necessarily be express. No undefined right of access can therefore result by simple inference or implication from Article 6.1 (art. 6-1). The effect of Article 17 (art. 17) of the Convention (see footnote 17 supra) confirms and fortifies this view.
(c) Article 5, paragraph 4, and Article 13 (art. 5-4, art. 13)
(i) The Court's Judgment is correct in taking the view of these provisions described in footnote 14 above; but it is a view that, though correct, is incomplete, and misses an important part of what the United Kingdom was seeking to contend.
(ii) What these two Articles (art. 5-4, art. 13) provide is that the contracting States must furnish a remedy in their courts for contraventions of substantive rights or freedoms embodied in the Convention (this description is somewhat of a paraphrase of Article 5, paragraph 4 (art. 5-4), but basically true, and literally true of Article 13 (art. 13)). I agree with the Court that these provisions do not themselves embody any substantive rights or freedoms, or any general right of access, and therefore would not render any provision that did have that effect superfluous, as the United Kingdom Government contended. However, that Government also put forward what might be called the complement of this proposition, namely, that if a general right of access must, as the Court held, be deemed to be implied by Article 6.1 (art. 6-1) then Article 5, paragraph 4, and Article 13 (art. 5-4, art. 13), would in their turn be rendered superfluous because the right of access under Article 6.1 (art. 6-1) would provide all that was needed. Hence the existence of these other two provisions tended to show that no right of access was comprised by Article 6.1 (art. 6-1). This argument is logically correct, but is not completely watertight since Articles 5.4 and 13 (art. 5-4, art. 13) speak of affording a remedy; and mere access does not necessarily entail a remedy: there can be access but no remedy available upon access. Nevertheless, if one were prepared to take a leaf out of the Court's book and employ the kind, or order, of argument the Court employs, one might say that since access without a remedy is of no avail, a right of access implies a right to a remedy - which is patently absurd. This would however precisely parallel the Court's conclusion that because right to a fair trial is of no avail without a trial, therefore a right to bring proceedings resulting in a trial must be implied. It would be difficult to make the non-sequitur clearer.
(d) The provisions of Article 6, paragraph 1 (art. 6-1) - The vital first sentence of this paragraph has already been quoted in paragraph 25 of the present Opinion, and the remaining sentence will be found set out in paragraph 24 of the Court's Judgment. It need not be quoted here because all it does, with obvious reference to the requirement of a "public hearing" stated in the first sentence, is to specify that judgment also must be "pronounced publicly", but that the press and the public may be excluded from all or part of the trial in certain circumstances which are then particularized in some detail. This sentence is therefore irrelevant for present purposes except that it is entirely of the same order as the first, and is linked to it, ejusdem generis, as an essentially procedural provision concerned solely with the incidents and modalities of trial in court. On the first sentence, and generally, the following comments are supplementary to those already made in paragraphs 25 and 33-34 supra (and see also paragraph 40 in fine):
(i) The "ejusdem generis" rule - The previous paragraphs of this Opinion just referred to, were directed to showing that Article 6.1 (art. 6-1) is a self-contained provision, complete in itself and needing no importations, supplements or elucidations in order to make its effect clear; and belonging to a particular order or category of clause, procedural in character and concerned exclusively with the modalities of trial in court. Its whole tenour is to that effect, and that effect only, as was eloquently pointed out in argument (CDH (73) 33 at p. 51).... The ejusdem generis rule therefore requires that, if any implictions are to be drawn from the text for the purpose of importing into it, or supplementing it by, something that is not actually expressed there (and it is common ground that the right of access does not find expression in this text), these implications should be, or should relate to, something of the same order, or be in the same category of concept, as figures in the text itself. This would not be the case here. Any right of access as such, while it has a procedural aspect, is basically a substantive right of a fundamental character. Even in its procedural aspects it is quite distinct from matters relating to the modalities of trial. As has already been pointed out, the concept of the incidents of a trial has only one necessary implication, viz. that a trial is taking place - that proceedings are in progress. It implies nothing in itself about the right to initiate them, which belongs to a different order of concept. Consequently it is not a legitimate process, and it contravenes accepted canons of interpretation, to imply the one from the other.
(ii) The rule "expressio unius est exclusio alterius" - This rule also is infringed by the conclusion arrived at in the Court's Judgment. This occurs more than once, but is best illustrated by the manner in which Article 6. 1 (art. 6-1) is dealt with at the beginning of paragraph 28 of the Judgment, where it is said that although the Article "does not state a right of access ... 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" - (actually, not defined at all[30]). What is conveniently overlooked here is that the only rights in fact "enunciated" in Article 6.1 (art. 6-1) (and ex hypothesi "enunciation" means expressed in terms) are not "distinct" rights, but rights all of the same order or category, viz. rights relating to the timing, conduct and course of a trial. There is nothing in this with which to constitute the pretended "single right" that is said to include a right of access in addition to the actually specified procedural rights. The latter, on the other hand, are explicitly stated in such a way as to call for the application of the expressio unius rule, - and since, for the reasons already given (paragraphs 25 and 34 supra), there is nothing in the Article that necessitates a right of access apart from the fact of access already had, this rule should be applied. At the risk of repetition, let the true position be stated once more, namely that the provisions of Article 6.1 (art. 6-1) will operate perfectly well as they are, whenever proceedings are in fact brought, without postulating any inherent right to bring them. The Article will operate automatically when, and if, there are proceedings. If for whatever reason – absence of right or other - they are not brought, then cadit quaestio: the occasion that would have brought the Article into play has simply not arisen. In consequence, there is no justification in this case for the failure to apply the expressio unius rule.
(iii) Equal treatment of civil and criminal proceedings - there is a further compelling, and perhaps more concrete, reason why no right of access, as opposed to a right to a fair trial, etc., can be implied in Article 6.1 (art. 6-1). This Article (art. 6-1) manifestly places civil and criminal proceedings on the same footing, - it deals with the matter of a fair trial in both contexts. Yet the question of a right of access as such must arise chiefly in connexion with civil proceedings where it is the plaintiff or claimant who initiates the action. Apart from the very limited and special class of case in which the private citizen can originate proceedings of a penal character, it is the authorities who start criminal proceedings; and in that context it would be manifestly absurd to speak of a right of access. It is no real answer to this to say that the right inheres only when it is needed and it is needed in the one case but not the other (or in any event the authorities can look after themselves). This is not the point. The point is that the Article (art. 6-1) is as much concerned with the criminal as with the civil field - indeed its importance probably lies chiefly in the former field, - yet this, the criminal field, is one in relation to which it is totally inapt in the vast majority of cases to speak of a right of access for the authorities who will be initiating the proceedings. This is a strong pointer to, or confirmation of, the conclusion that the Article (art. 6-1) is concerned solely with the proceedings themselves, not the right to bring them.
(iv) A public hearing "within a reasonable time" - There are other pointers in the same direction, which also involve the principle of maintaining a due congruity between the civil and criminal aspects of Article 6.1 (art. 6-1). One such pointer is afforded by the United Kingdom argument (only referred to in the Judgment (paragraph 32) in a manner that fails to bring out its relevance - indeed seems wholly to misunderstand it[31][32]) concerning the implications of the requirement in the Article (art. 6-1) that trial shall take place within a reasonable time. "Within a reasonable time" of what? The Article does not say. In the case of criminal proceedings there can be no room for doubt that the starting point must be the time of arrest or of formal charge. It is only common sense to suppose that it could not lie in an indeterminate preceding period when the authorities were perhaps considering whether they would make a charge, and were taking legal advice about that - or were trying to find the accused in order to arrest him. In my view exactly the same principle must apply mutatis mutandis to civil proceedings, not only because otherwise a serious degree of incommensurate treatment would be introduced between the two types of proceedings, but for practical reasons also. In civil proceedings, the period of reasonable time must begin to run from the moment the complaint is formalized by the issue of a writ, summons or other official instrument under, or in accordance with, which the defendant is notified of the action. This again is only common sense. Any period previous to that, while the plaintiff is considering whether to act, is taking legal advice, or is gathering evidence, is irrelevant or too indeterminate to serve, since no fixed moment could be found within it to act as a starting point for the lapse of a "reasonable time". If this were not so, the starting point could be "related back" for months or even, in some cases, years, thus making nonsense of the whole requirement of trial "within a reasonable time", the sole real object of which is to prevent undue delay in bringing causes to trial. But the effect of the Court's view is that since Article 6.1 (art. 6-1) itself does not specify any starting point; the Court would have to determine this ad hoc for, and in, each particular case. In consequence, governments could never know in advance within what precise period causes must be brought to trial in order to satisfy the requirements of the Article (art. 6-1), - a wholly unacceptable situation.
(v) The significance of all this is of course that anything relating to a right of access must concern the period prior to the formal initiation of proceedings, for once these have been started, access to the courts has been had, and therefore cadit quaestio. In consequence, any occurences relating to the right of access as such - in particular any alleged interference with or denial of it - must relate exclusively to the period before access is actually had by the initiation of proceedings, - i.e. before the period of a fair and public hearing within a reasonable time to which alone Article 6.1 (art. 6-1) refers; - and this again points directly to the conclusion that the Article does not purport to deal with access at all, since that matter relates to an antecedent period or stage.
(vi) The term "public hearing" also gives rise to difficulties if Article 6.1 (art. 6-1) is to be understood as providing for a right of access. Confining myself here to the case of civil proceedings, the term "public" suggests a hearing on the merits in open court such as will ordinarily occur if the proceedings run their normal course. But as has been seen (supra, paragraph 15), they may not do so, they may be stopped on various grounds at an earlier stage. The point is that if they are, this will very often not be at any public hearing, but before a minor judicial officer or a judge sitting in private (anglice "in chambers"), at which, usually, only the parties and their legal advisers will be present. If therefore a right of access were held to be implied by Article 6.1 (art. 6-1), this might, on the language of the Article have to be held to involve a sort of indefeasible right to a public hearing in all circumstances, anything less not being "access". This view is strongly confirmed by the tenour of the second sentence of Article 6.1 (art. 6-1) – see sub-paragraph (d) above. Here therefore is one of the connexions in which the correct meaning and scope of a right of access has not been thought out (see paragraphs 28 and 29 supra), - failing which the concept lacks both clarity and certainty. It is also the connexion in which Article 17 (art. 17) of the Convention is relevant – see footnote 17 supra, and sub-paragraph (b) of the present paragraph (47).
Note 1 Significantly the Oxford English Dictionary does admit an older meaning, in the sense of "intercourse, communication" or (the verb) "to hold communication or intercourse [with]", but pronounces these usages to be obsolete now except in the context of letters or other written communications. [Back] Note 2 In his masterly work The Application of the European Convention on Human Rights, Mr. J.E.S. Fawcett draws attention to the practice of the German Courts of treating "conversation, whether direct or by telephone, as being part of private life" (op. cit., p. 194), respect for private life being another of the categories protected by Article 8 (art. 8) of the Convention. [Back] Note 3 See paragraphs 13 and 19 of the Court's Judgment. Golder's claim under this head was found inadmissible by the European Commission of Human Rights because he had a right of appeal in the United Kingdom which he had failed to exercise. Thus he had not exhausted his local legal remedies. [Back] Note 4 It would seem to be a matter of common sense to suppose that any attempt by Golder to telephone a solicitor from prison (of which there is no evidence) would have proved abortive, though no interference with his correspondence, contrary to Article 8 (art. 8), would have been involved, - but see the private life theory, note 2 above. [Back] Note 5 This is perhaps not quite fair to the prison authorities, who acted entirely correctly within the scope of the Prison Rules. There was no general interdiction of correspondence. But when Golder asked for permission to consult a solicitor it was refused. It must therefore be assumed that had he attempted to effect a consultation in the only way practicable for him - at least initially - viz. by letter, the letter would have been stopped - and see note 4 supra. [Back] Note 6 I am glad to be fortified in this view by no less an authority than that of the President of the European Commission of Human Rights, who says (op. cit. in note 2 supra, p. 196) that "'respect' for correspondence in Article 8 (1) (art. 8-1) does not, quite apart from Article 8 (2) (art. 8-2), involve an unlimited freedom in the matter". [Back] Note 7 The point arises because it is not clear whether the categories beginning with the words "for the prevention of", etc., are governed by and relate directly back to the words "is necessary", or whether they relate only to the words "in the interests of". [Back] Note 8 Golder had made two requests: to be transferred to another prison, and to be allowed either to consult a solicitor about the possibility of taking legal action or alternatively to obtain the advice of a certain named magistrate, in whose views he would have confidence. In reply, he was told that the Secretry of State had fully considered his petition "but is not prepared to grant your request for a transfer, nor can he find grounds for taking any action in regard to the other matters raised in your petition". [Back] Note 9 These are amongst the grounds, specified in Article 27 (art. 27) of the European Convention, on which the Commission of Human Rights must refuse to deal with a petition. [Back] Note 10 This was either in the first (jurisdictional) phase of the Barcelona Traction Company case (1964), or in the North Sea Continental Shelf case; but I have lost track of the reference. [Back] Note 11 Dated 1 June 1973: Convention, Article 31, paragraphs 1 and 2 (art. 31-1, art. 31-2). [Back] Note 12 Document CDH (74) 6 of 26 March 1974.* [Back] Note 13 Documents CDH/Misc (74) 63 and 64 of 12 October 1974.*
* Note by the Registry: These documents are reproduced in volume No 16 of Series B. [Back] Note 14 Although I agree with the Judgment (paragraph 33) that provisions such as those in Article 5.4 and Article 13 (art. 5-4, art. 13) only confer procedural rights to a remedy in case a substantive right under the Convention is infringed, and not any substantive rights themselves, this finding, though correct in se, does not exhaust the point of the United Kingdom argument based on those Articles (art. 5-4, art. 13). I shall return to this matter later. [Back] Note 15 Clearly anything defined must ipso facto be mentioned, indicated, specified or at least named, etc. The reverse does not follow. A definition involves more than any of these, and a fortiori much more than something not specified at all, but merely inferred. [Back] Note 16 J.E.S. Fawcett, op. cit., in note 2 supra, p.33. [Back] Note 17 It was common ground in the proceedings that a right of access cannot mean that the courts must have unlimited jurisdiction (e.g. the case of diplomatic or parliamentary immunity); or that the right must be wholly uncontrolled (e.g. the case of lunatics, minors, etc.). Or again that lawful imprisonment does not have some effect on rights of access. But there was more than enough argument about the precise nature or extent of such curbs to make it abundantly clear that an implied right of access without specification or definition could not be viable, in the sense that its character and incidence would be the subject of continual controversy. Here, my colleague Judge Zekia makes an excellent point when he draws attention to the effect of Article 17 (art. 17) of the Convention, which prohibits the contracting States from engaging in anything aimed at limiting any rights or freedoms "to a greater extent than is provided for in the Convention", - the significance being that if any right of access were to be implied by Article 6.1 (art. 6-1), it would have to be an absolute one, since that Article provides for no restrictions. [Back] Note 18 For instance, what is meant by the allusions to a definition "in the narrower sense of the term"? Narrower than what? - and what would be the "broader" sense? Such vagueness can only give rise to "confusion worse confounded": Milton, Paradise Lost, Book I, 1, 995, - (lost indeed!). [Back] Note 19 See a footnote entitled "The philosophy of the inference" in the British Year Book of International Law for 1963, p. 154. [Back] Note 20 The importance attributed to the factor of the "rule of law" in paragraph 34 of the Court's Judgment is much exaggerated. That element, weighty though it is, is mentioned only incidentally in the Preamble to the Convention. What chiefly actuated the contracting States was not concern for the rule of law but humanitarian considerations. [Back] Note 21 It is one thing for a national constitution to allow part of its legislative processes to be effected by means of judge-made "case law": quite another for this method to be imposed ab extra on States parties to an international convention supposed to be based on agreement. It so happens however, that even in England, a country in which "case law", and hence - though to a diminishing extent – a certain element of judicial legislation has always been part of the legal system, a recent case led to severe criticism of this element, and another decision given by the highest appellate tribunal went far to endorse this criticism in the course of which it had been pointed out that the role of the judge is jus dicere not jus dare, and that the correct course for the judge faced with defective law was to draw the attention of the legislature to that fact, and not deal with it by judicial action. It was also pointed out that no good answer lay in saying that a big step in the right direction had been taken, - for when judges took big steps that meant that they were making new law. Such remarks as these are peculiarly applicable to the present case in my opinion. [Back] Note 22 That is to say unless it can be shown that the treaty or convention itself concedes some legislative role to the tribunal called upon to apply it, or that the parties to it intended to delegate in some degree the function (otherwise exclusively to them pertaining) of changing or enhancing its effects, - or again that they must be held to have agreed a priori to an extensive interpretation of its terms, possibly exceeding the original intention. In the present context none of these elements, but the reverse rather, are present, as I shall show later. [Back] Note 23 The European Convention, signed in 1950 and in force since 1953, is unique as being the only one that both is operative and provides for the judicial determination of disputes arising under it. In any event it is the oldest, having been preceded (by two years) only by the U.N. Universal Declaration of Human Rights which was not, and is not, a binding instrument. There are only three others of the same general order as the European Convention, and only one that is comparable in respect of "enforcement machinery" - the American Convention of San José - which was signed only in 1969 and is not in force. [Back] Note 24 "As regards the question of access to the courts, this is not a case of a Government trying to repudiate obligations freely undertaken. That much is quite clear. If one thing has emerged from all the discussion in the case of Mr. Knechtl and the pleadings so far in the case of Mr. Golder, it is that the Government of the United Kingdom had no idea when it was accepting Article 6 (art. 6) of the Convention that it was accepting an obligation to accord a right of access to the courts without qualification. Whether we are right on the interpretation or whether we are wrong, I submit that that much is absolutely clear. I am not going to review in detail all the evidence or the views of the United Kingdom in this respect which have been placed before the Commission. But I submit that it is perfectly clear from all the constitutional material that has been submitted, from its part in the drafting of the European Establishment Convention, that the United Kingdom had no intention of assuming, and did not know that it was expected to assume, any such obligation." - (CDH (73) 33, at p. 36: Document no. 5 communicated by the Commission to the Court)*
* Note by the Registry: Verbatim record of the oral hearing on the merits held in Strasbourg before the Commission on 16-17 December 1971. [Back] Note 25 A right of access under domestic law such as, at least in a general way, the legal systems of most countries doubtless do in fact provide, is one thing. It is quite another matter to assume an international treaty obligation to do so - especially without the smallest attempt to define or condition it (see supra, paragraphs 27-30). [Back] Note 26 The intervening provision (Article 9) is irrelevant here, forbiding arbitrary arrest, detention or exile. [Back] Note 27 Loc. cit. in note 24 supra, at p. 47. [Back] Note 28 Ibid. at p. 50.
* See note by the Registry on Page 53. [Back] Note 29 The United Kingdom argument based on the purely national treatment in the matter of access to the courts afforded by ordinary commercial treaties and by such multilateral conventions as the modern European Convention on Establishment, points to the probability that, squarely faced with having to do something about the question of access, governments would not have been willing to go beyond providing for national treatment in the matter; and of course Golder, a United Kingdom national, did receive treatment which was correct under the local national law and regulations. [Back] Note 30 See note by the Registry on page 53. [Back] Note 31 This is one of the places where the Court recognizes the undefined character of the right - see supra paragraphs 26-31, especially 29 and 30 and appurtenant footnotes. [Back] Note 32 It is of course the trial that has to take place within a reasonable time after access has been had, not the access that has to be afforded within a reasonable time. [Back]