In the case of Taranenko v. Russia the European Court of Human Rights held that the extended detention and severe sentencing of participant in non-violent anti-Government protest in Russia was unjustified (violation of Article 5 § 3 (right to liberty and security - entitlement to trial within a reasonable time or to release pending trial and a violation of Article 10 (freedom of expression) in the light of Article 11 (freedom of assembly and association). The case concerned the detention and conviction of a participant in a protest against the politics of President Putin in 2004, organised by the National Bolsheviks Party. The Court underlined that the protest, although involving some disturbance of public order, had been largely non-violent and had not caused any bodily injuries. The Court found in particular that while a sanction for Ms Taranenko’s actions might have been warranted by the demands of public order, her detention pending trial of almost one year and the suspended prison sentence of three years imposed on her had not been proportionate and had to have had a deterring effect on protesters.
In the case of Paulet v. the United Kingdom the Court held that UK courts should have balanced individual property rights against interests of general public in case concerning confiscation of wages (violation of Article 1 of Protocol No. 1 (protection of property). The case concerned the confiscation of Mr Paulet’s wages following his conviction for obtaining employment using a false passport. Mr Paulet complained that the confiscation order against him had been disproportionate as it amounted to the confiscation of his entire savings over nearly four years of genuine work, without any distinction being made between his case and those involving more serious criminal offences such as drug trafficking or organised crime.
The Court found that the UK courts’ scope of review of Mr Paulet’s case had been too narrow. Notably, they had simply found that the confiscation order against Mr Paulet had been in the public interest, without balancing that conclusion against his right to peaceful enjoyment of his possessions as required under the European Convention. The Court found that as domestic law had only permitted the national courts to consider whether or not a confiscation order was “oppressive” or an “abuse of process” at the time Mr Paulet’s case was decided, the scope of review carried out by them had been too narrow. As a result, the Court concluded that, in the circumstances of this case, there had been a violation of Article 1 of Protocol No. 1:
“63. Article 1 of Protocol No. 1 in substance guarantees the right of property (see Marckx v. Belgium, 13 June 1979, § 63, Series A no. 31). It comprises “three distinct rules”: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (see, inter alia, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 61, Series A no. 52). However, the three rules are not “distinct” in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 106, Series A no. 102).
64. It is not in dispute that the confiscation order in the present case amounted to an interference with the applicant’s right to peaceful enjoyment of his possessions as protected by the first sentence of Article 1 of Protocol No. 1. Moreover, it is clear from Phillips v. the United Kingdom, no. 41087/98, § 51, ECHR 2001 VII, that confiscation orders fall within the scope of the second paragraph of Article 1 of Protocol No. 1, which, inter alia, allows the Contracting States to control the use of property to secure the payment of penalties. However, this provision must be construed in the light of the general principle set out in the first sentence of the first paragraph and there must, therefore, exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, among many examples, Allan Jacobsson v. Sweden (no. 1), judgment of 25 October 1989, Series A no. 163, p. 17, § 55).
65. An interference with Article 1 of Protocol No. 1 will be disproportionate where the property-owner concerned has had to bear “an individual and excessive burden”, such that “the fair balance which should be struck between the protection of the right of property and the requirements of the general interest” is upset (see Sporrong and Lönnroth v. Sweden, cited above, §73). The striking of a fair balance depends on many factors (AGOSI v. the United Kingdom, 24 October 1986, § 54, Series A no. 108). Although the second paragraph of Article 1 of Protocol No. 1 contains no explicit procedural requirements, the Court must consider whether the proceedings as a whole afforded the applicant a reasonable opportunity for putting his case to the competent authorities with a view to enabling them to establish a fair balance between the conflicting interests at stake (AGOSI, cited above, § 55, and Jokela v. Finland, no. 28856/95, § 55, ECHR 2002 IV).
66. The Court has already observed that at the time the applicant brought his complaint before the domestic courts, it was appropriate for him to argue his case in terms of “oppression” and “abuse of process”. Although the applicant sought to argue that “oppression” should be interpreted in line with the proportionality test required by Article 1 of Protocol No. 1, such an analysis was not adopted by the Court of Appeal (see paragraphs 17 – 19 above). It was only in 2012, while giving judgment in R v. Waya (see paragraphs 37 – 39, above), that the Supreme Court indicated that it would be preferable to analyse confiscation cases in terms of proportionality under Article 1 of Protocol No. 1.
67. It is clear that in assessing whether or not the confiscation order in the present case was “oppressive” and thus an “abuse of process”, the Court of Appeal did ask whether or not the order was in the public interest. However, having decided that it was, they did not go further by exercising their power of review so as to determine “whether the requisite balance was maintained in a manner consonant with the applicant’s right to ‘the peaceful enjoyment of his possessions’, within the meaning of the first sentence of Article 1” (see Sporrong and Lönnroth v. Sweden, cited above, § 69). On the contrary, the Court of Appeal made it clear that the abuse of process jurisdiction had to be exercised “sparingly”. In particular, it noted that
“the responsibility for deciding whether properly to seek a confiscation order is effectively vested in the Crown. When it does so, the court lacks any corresponding discretion to interfere with that decision if it has been made in accordance with the statute”.
68. Consequently, the Court cannot but conclude that at the time the applicant brought the domestic proceedings, the scope of the review carried out by the domestic courts was too narrow to satisfy the requirement of seeking the “fair balance” inherent in the second paragraph of Article 1 of Protocol No. 1.”
Judges Bianku, Kalaydjieva, Mahoney and Wojtyczek expressed separate opinions which are annexed to the judgment."
Texts build on the press releases of the European Court of Human Rights.
This selection covers categories 1 and 2 judgments.
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