Issue 48 February 2010 - Human Rights Stop Press: Stop & search
The Grand Chamber of the European Court of Human Rights has been particularly busy of late. This is, in part, due to the need of the Grand Chamber to re-assess existing approaches to common problems - as the Italian case of compensation for expropriated property below shows - but, also, because of the general growth in business of the Court.
In that regard, the recent case against Bosnia and Herzegovina reminds us that even today some Councils of European States have placed a bar on individuals of certain ethnic or racial identities taking public office. Surely this is a reminder that in the Europe of today there is no room for complacency with regards human rights protection. The case is also an illuminating example of the application of art 1 of Protocol No. 12, which secures a general right disallowing discrimination in relation to any right secured by law The scope of this provision is, as we shall see, considerably wider than art 14, which only prevents discrimination on prohibited grounds of the rights secured by the Convention. The United Kingdom has declined to ratify art.l of Protocol No.12 on the basis that the wording of the protocol is too wide and would result in a flood of new cases testing the extent of the new provision. There is a concern that the phrase,' 'rights set forth by law" might include international conventions to which the United Kingdom is not a party and would result in incorporation of these instruments by stealth.
United Kingdom anti-terrorism laws have come under scrutiny as well and were found to be wanting. The Strasbourg Court declared that police "stop and search" powers were incompatible with art. 8 in the recent and important Chamber decision of Gillan and Quinton v the United Kingdom (4158/05). Given the implications of this decision on the government's current anti-terrorism strategy it is understood that they are seeking to refer the case to the Grand Chamber. Due to the recent and detailed analysis of the extent of att.8 in relation to police powers in this case, an extended summary of the decision is provided.
The case concerned the police power, under ss.44 - 47 of the Terrorism Act 2000 ("the Act"), to stop and search individuals without reasonable suspicion of wrongdoing. Under the Act a senior police officer may issue an authorisation, if he or she considers it "expedient for the prevention of acts of terrorism", permitting any uniformed police officer within a defined geographical area to stop any person and search the person as well as anything carried by him or her. The authorisation must be confirmed by the Secretary of State within 48 hours. A search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion but may only be, "for articles of a kind which could be used in connection with terrorism". The police officer may request that the individual remove headgear, footwear, outer clothing and gloves and place his or her hands inside pockets, feel around and inside collars, socks and shoes, and search hair. The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both.
The applicants were both stopped and searched by the police, acting under ss.44-47 of the Act, while on their way to a demonstration dose to an arms fair held in the Docklands area of East London. Mr Gillan was riding a bicycle and carrying a rucksack when stopped and searched by two police officers. Ms Quinton, a journalist, was stopped and searched by a police officer and ordered to stop filming, despite her showing her press cards. Mr Gillan was allowed to go on his way after having been detained for about 20 minutes; the record of Ms Quinton's search showed she was stopped for five minutes but she thought it was more like 30 minutes.
In domestic proceedings, the House of Lords unanimously dismissed the applicants' appeals. In particular, the Law Lords were doubtful whether an ordinary superficial search of the person could be said to show a distinct lack of respect for private life, so as to bring art8 into operation. Even if art.8 did apply, the procedure was in accordance with the law and it would be impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism.
In the European Court the applicants complained that the use of the s.44 power to stop and search each of them breached their rights under arts 5 (right to liberty and security); 8 (right to respect for private and family life); 10 (freedom of expression); and 11 (freedom of assembly and association).
The European Court considered that the coercive powers conferred by the anti-terrorism legislation that require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the individual's right to respect for private life. The public nature of the search, with the discomfort of having personal information exposed to public view, might even compound the seriousness of the interference because of an element of humiliation and embarrassment. The interference could not be compared to searches of travellers at airports. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice since he can leave personal items behind and walk away without being subjected to a search. The search powers under s.44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.
In the Court's view, the wide discretion conferred on the police under the Act, both in terms of the authorisation of the power to stop and search and its application in practice, had not been curbed by adequate legal safeguards so as to offer the individual adequate protection against arbitrary interference.
First, at the authorisation stage of this case there was no requirement that the stop and search power be considered "necessary", only "expedient". The authorisation was subject to confirmation by the Secretary of State within 48 hours and was renewable after 28 days. The Secretary of State could not alter the geographical coverage of an authorisation and although he or she could refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done. Indeed, the temporal and geographical restrictions provided by Parliament had failed to act as any real check on the issuing of authorisations by the executive, demonstrated by the fact that an authorisation for the Metropolitan Police District had been continuously renewed in a "rolling programme" since the powers had first been granted.
An additional safeguard was provided by the Independent Reviewer appointed under the Act However, his powers were confined to reporting on the general operation of the statutory provisions and he had no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he had expressed the clear view that, "section 44 could be used less and I expect it to be used less".
Of still further concern was the breadth of the discretion conferred upon the individual police officer. The officer's decision to stop and search an individual was one based exclusively on the "hunch" or "professional intuition". It was not only unnecessary for him to demonstrate the existence of any reasonable suspicion; he was not required to even subjectively suspect anything about the person stopped and searched. The sole proviso was that the search had to be for the purpose of looking for articles which could be used in connection with terrorism - a very wide category that covers many articles commonly carried by people in the streets. Provided that the person concerned was stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles.
The Court was struck by the statistics, and other evidence, showing the extent to which police officers resorted to the powers of stop and search under s.44 of the Act. They found that there was a dear risk of arbitrariness in granting such broad discretion to a police officer. While the present cases did not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons was a very real consideration, indeed the statistics showed that black and Asian persons were disproportionately affected by the powers. There was, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of arts 10 and/or 11 of the Convention.
Although the powers of authorisation and confirmation exercised by the senior police officer and the Secretary of State respectively were subject to judicial review, the breadth of the discretion involved meant that applicants faced formidable obstacles in showing that any authorisation and confirmation were ultra vires or an abuse of power. Similarly, judicial review or an action in damages to challenge the exercise of the stop and search powers by a police officer in an individual case is unlikely to succeed. The absence of any obligation on the part of the officer to show a reasonable suspicion made it almost impossible to prove that that power had been improperly exercised.
In conclusion, the Court considered that the powers of authorisation and confirmation as well as those of stop and search under ss.44 and 45 of the Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not "in accordance with the law" and, therefore, were in violation of art8. Given the finding above, the Court held that it was not necessary to examine the applicants' complaints under the other articles.
In Perdigao v Portugal (24768/06) the applicants claimed over €20 million in compensation after a 130,000m2 piece of land they owned was expropriated in 1995 to build a motorway Their claim was rejected and they were awarded with compensation just over €197,000. The legal costs they were required to pay for the proceedings exceeded the amount of the award. Relying on art.l of Protocol No.l (protection of property), they complained that the compensation awarded to them had been fully absorbed by the amount they had to pay to the State in legal costs.
In its judgment of August 4,2009, the Chamber examining the case held that the applicants could not be criticised for having attempted to persuade the court— using the procedural means available to them—to include elements that they deemed to be essential in the award (in this case the profits they could have made by exploiting the quarry situated on the land). The implementation of the Portuguese system for determining and fixing legal costs in this case had resulted in their receiving no compensation whatsoever for the deprivation of their property. Accordingly, a "fair balance" had not been struck between the general interest of the community and the rights of the applicants. The Chamber held by five votes to two that there had been a violation of art 1 of Protocol No.l and awarded the applicants €190,000 as pecuniary damage. On December 10, 2009 the case was referred to the Grand Chamber at the Government's request
In Sejdic and Finci v Bosnia and Herzegovina (27996/06 and 34836/06), the applicants were citizens of Bosnia and Herzegovina. The former is of Roma origin and the latter is a Jew. They are both prominent public figures. The Constitution of Bosnia and Herzegovina, in its preamble, makes a distinction between two categories of citizens: the so-called "constituent peoples" (Bosniacs, Croats and Serbs) and "others" (Jews, Roma and other national minorities, together with those who do not declare affiliation with any ethnic group). The House of Peoples of the Parliamentary Assembly (the second chamber) and the Presidency are composed only of persons belonging to the three constituent peoples. Mr Finci enquired with the Central Election Commission regarding his intentions to stand for election to the Presidency and the House of Peoples of the Parliamentary Assembly. On January 3, 2007 he received a written confirmation from the Central Election Commission that he was ineligible to stand to such elections because of his Jewish origin.
The applicants complained that, despite possessing experience comparable to that of the highest elected officials, they were prevented by the Constitution of Bosnia and Herzegovina and the corresponding provisions of the Election Act 2001, from being candidates for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the ground of their ethnic origins. They relied on arts 3,13,14, art.3 of Protocol No. 1 (right to free elections) and art 1 of Protocol No. 12 (general prohibition of discrimination) to the Convention.
First, the Court considered that, given the applicants' active participation in public life, it was entirely logical that they would have considered running for the House of Peoples or the Presidency. The applicants could, therefore, claim to be victims of the alleged discrimination. The fact that the present case raised the question of the compatibility of the national constitution with the Convention was irrelevant in this regard. The Court also noted that the Constitution of Bosnia and Herzegovina was an annex to the Dayton Peace Agreement, itself an international treaty. The power to amend it, however, was vested in the Parliamentary Assembly of Bosnia and Herzegovina, which was clearly a domestic body. In addition, the powers of the international administrator for Bosnia and Herzegovina ("the High Representative") did not extend to the State constitution. Accordingly, the contested provisions came under the responsibility of the respondent State.
The Court noted that although the House of Peoples of the Parliamentary Assembly was composed of indirectly elected members, it enjoyed very wide legislative powers. Article 14 taken in conjunction with art3 of Protocol No. 1 was therefore applicable.
The Court reiterated that discrimination occurred every time persons in similar situations were treated differently without objective and reasonable justification. Where disparate treatment was based on race or ethnicity, the notion of objective and reasonable justification had to be interpreted as strictly as possible. The Court had already held in its case law that no difference in treatment which was based exclusively or decisively on a person's ethnic origin was capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures.
In the present case, in order to be eligible to stand for election to the House of Peoples of Bosnia and Herzegovina, one had to declare affiliation with one of the' 'constituent peoples" of Bosnia and Herzegovina, which the applicants did not wish to do on account of their Roma and Jewish origins respectively.
Under the constitution, Bosnia and Herzegovina is composed of two entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The rule limiting the applicants' eligibility rights was based on power-sharing mechanisms that made it impossible to adopt decisions against the will of the representatives of one of the ' 'constituent peoples'' of Bosnia and Herzegovina. Thus, relevant provisions included a' Vital interest veto'', a' Veto of the Entities", a two-chamber system (with a House of Peoples made up of five Bosniacs, five Croats from the Federation of Bosnia and Herzegovina and five Serbs from Republika Srpska) and a collective Presidency of three members, composed of a Bosniac and a Croat from the Federation of Bosnia and Herzegovina and a Serb from Republika Srpska.
The Court acknowledged that this system - initially put in place at a time when a fragile ceasefire had been accepted by all the parties of the inter-ethnic conflict that had deeply affected the country - pursued the legitimate aim of restoring peace. It noted, however, that the situation in Bosnia and Herzegovina had improved considerably since the Dayton Peace Agreement and the adoption of the constitution, as borne out by the fact that closure of the country's international administration is now being envisaged.
The Court recognised the recent progress following the Dayton Peace Agreements and noted that Bosnia and Herzegovina had amended its constitution for the first time in 2009 and that it had recently been elected a member of the United Nations Security Council for a two-year term. Nonetheless, the Court agreed with the Government that the time was perhaps still not ripe for a political system that abandoned the power-sharing mechanism in place and was a simple reflection of majority rule. When it joined the Council of Europe in 2002, Bosnia and Herzegovina vowed to review the electoral legislation within one year and it had ratified the Convention and the Protocols thereto without reservations. By ratifying a Stabilisation and Association Agreement with the European Union in 2008, it had committed itself to amending electoral legislation regarding members of the Bosnia and Herzegovina Presidency and House of Peoples delegates to ensure full compliance with the European Convention on Human Rights and the Council of Europe post-accession commitments within one to two years.
In consequence, the Court concluded by 14 votes to three that the applicants' continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina lacked an objective and reasonable justification and had, therefore, breached art 14 taken in conjunction with art.3 of Protocol No. 1.
With regard to the eligibility to stand for the Presidency of Bosnia and Herzegovina, the applicants relied only on art.1 of Protocol No.12. The Court noted that whereas artl4 of the Convention prohibited discrimination in the enjoyment of, "the rights and freedoms set forth in... the Convention", art.l of Protocol No.12 extended the scope of protection to, "any right set forth by law". Thus, it introduced a general prohibition of discrimination. Consequently, whether or not elections to the Presidency fell within the scope of art.3 of Protocol No. 1, their complaint concerned a, "right set forth by law", which made art.l of Protocol No.12 applicable.
The Court reiterated that the concept of discrimination was to be interpreted in the same manner, with regard to art.14 and in the context of art.l of Protocol No. 12, although the latter provision had a different scope. For the reasons put forward with regard to the elections to the House of Peoples, it followed that the constitutional provisions under which the applicants were ineligible for election to the Presidency had also to be considered discriminatory Accordingly, the Court concluded by 16 votes to one that there had been a violation of art.l of Protocol No.12. The Court also considered, unanimously, that it was not necessary to examine the case under art.3 of Protocol No.l taken alone or in conjunction with art.l of Protocol No.12.
Finally, it considered that the finding of a violation was sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicants and ordered the respondent State to pay €1,000 to the first applicant and €20,000 to the second applicant for costs and expenses.
In Guiso-Gallisay v ltaJy (58858/00), the applicants are three Italian nationals. In 1977 the Italian administration occupied the land that the applicants owned in Nuoro (Sardinia) with a view to its expropriation and began to develop it In the absence of any formal expropriation accompanied by compensation, the applicants brought proceedings seeking damages for the unlawful occupation of their land. The applicants alleged that the occupation of their land had infringed their right to the peaceful enjoyment of their possessions, guaranteed by art.l of Protocol No.l.
In a judgment of December 8,2005, the Court held that the interference with the applicants' right to the peaceful enjoyment of their possessions through the constructive expropriation of their land was incompatible with the principle of legality and that there had, accordingly, been a violation of art.l of Protocol No.l. It also held that the question of the application of art.41 (just satisfaction) of the Convention was not ready for decision.
The judgment on just satisfaction was delivered on October 21,2008 when the Court decided to vary its case law on application of art41 with regards indirect expropriation. The method used hitherto was to compensate for losses that would not be covered by payment of a sum obtained by adding the market value of the property to the cost of loss of earnings from the property, by automatically assessing those losses as the gross value of the works carried out by the State then adding the value of the land in today's prices. However, the Court considered that this method of compensation was not justified and could lead to unequal treatment between applicants depending on the nature of the public works carried out by the public authorities, which was not necessarily linked to the potential of the land in its original state. In order to assess the loss sustained by the applicants, it therefore decided that the date on which they had established with legal certainty that they had lost the right of ownership over the property concerned should be taken into consideration.
The total market value of the property fixed on that date by the national courts was then to be adjusted for inflation and increased by the amount of interest due on the date of the judgment's adoption by the Court The sum paid to applicants by the authorities of the country concerned was to be deducted from the resulting amount In the present case, the sum awarded for pecuniary damage amounted to €1,803,374 for the three applicants jointly. The Court also awarded them €45,000 for non-pecuniary)' damage and €30,000 for costs and expenses. On January 26 the case was referred to the Grand Chamber at the applicants' request
The Grand Chamber confirmed the change in the case-law described above with regard to the application of art41 in cases of constructive expropriation. It emphasised that the new principles laid down in its judgment could be applied by the national courts in the disputes which were currently pending before them and in future cases.
With regard to the application of those principles to the applicants' case, the Grand Chamber reached a different conclusion from the Chamber. The latter had held that the date from which the applicants had been certain, from a legal standpoint, of having lost their right of ownership to the disputed property (the date used as the basis for assessing the damage sustained) was July 14, 1997, when the Nuoro District Court declared that the expropriation of the applicants' land was unlawful. The Grand Chamber found, on the contrary, that the Nuoro District Court had held in its 1997 judgment that the applicants had lost part of their property' in 1982 and another part in 1983. As a consequence, it used those latter dates as the basis for assessing the just satisfaction to be awarded to the applicants.
Finally in application of art41, the Grand Chamber awarded the three applicants €2,145,000 jointly in respect of pecuniary damage, €45,000 in respect of non-pecuniary damage and €35,000 for costs and expenses. Judge Spielmann expressed a dissenting opinion.