Litigation in the European Court of Human Rights

• Author: Helen Mountfield
• Pages: 349-365

349

HINTRODUCTION

In 986, the United K ingdom customs authorities seized a n Air Canada Trist ar

aircra ft that had landed at a London airport. The plane was found to be carryi ng

large quantit ies of cannabis resi n. The authorities ref used to return t he plane

(worth mill ions of dollars) until A ir Canada had pa id a penalty of $50,000. Air

Canada complained to the European Court of Human Rights in Strasbourg,

France, that the sei zure and the demand that Air Ca nada pay a penalty without

any proof that it was at fault constituted an unlawful and d isproportionate inter-

ference with its right to peaceful enjoyment of its possessions, and was contrary

to Article  of t he First Protocol to the European Convention for t he Protection of

Fundamental Rights and Freedom s (European Convention of Huma n Rights, or

the Convention).

At the oral hear ing before the Cour t, counsel for Ai r Canada opened his

speech by sayin g: “We are not European, I am sor ry to say. We are not human.

The third question, whether we have any right s, remains for your Lord ships’

decision.”

Air Canad a lost its case, but not because it was North A merican, and not

because it was a legal rat her than a natura l person. Nor was it an issue t hat the

proceedings concer ned commercial interests rather t han more orthodox “human

rights” consid erations. The case thus left no doubt th at the European Convention

. Story rel ated by Sir Nicolas Bratza, judge of the Eu ropean Court of Huma n Rights, at

a conference on the i mplications of the Briti sh Human Rights Ac t for business, June ,

999, reported in 20 00 Eur. Hum. Rs. L. Rev. 1.

CHAPTER 21

Litigation in the European Court

of Human Rights

Helen Mountfield

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350 CHAPTER 2

of Human Rights is of great significance to commercial, as well as other, lawyers

operating i n any of the European signator y states.

The duty of signator ies to the Convention is “to secure to ever yone within

their juri sdiction the rig hts and freedoms def ined in Section I of thi s Convention,”2

and the subject matter of t he rights protected by the Convention is very wide:

from rights to be free from torture, to rights to respect for private life and corre-

spondence, to propert y and due process rights.

The European Cour t of Human Right s has frequently entered t he province

of commercial law, for example, as to the rights of minority shareholders to be

heard in legal pr oceedings,3 of airlines to fly into Heathrow airport at night,4 of

shipping companies to sue i n tort,5 of propert y developers to develop la nd,6 and

of lawyers not to have professional doc uments seized from their of fices.7

Of course, not only commer cial litigators should cons ider the potential of the

Strasbourg cour t. The bulk of its work concern s more traditional human rights

issues, such as l ife, liberty, freedom from tor ture, fair tria ls, privacy, and freedom

of expre ssion.8

A full l ist of the substantive r ights contained i n the Convention, which al l

signatories have rat ified, is as follows:

Article 2 —Right to life

Article 3 —Prohibition of torture

Article 4 —Prohibition of slavery and forced labor

Article 5 —Right to liberty a nd security of the person

Article 6 —Right to a fair t rial

Artic le 7—No pu nishment without law

Article 8 —Right to respect for private a nd family life

Article 9 —Freedom of thought, conscience, and rel igion

Article 0 —Freedom of expression

Article — Freedom of assembly and association

Article  2—Right to marr y

Article  3—Right to an effect ive remedy

Article 4—Prohibition of discrimination

Protocol  Artic le —Protection of property

2. Europ ean Court of Human R ights, art. .

3. E.g., Agrotex im v. Greece, European Human R ights Reports [herei nafter E.H.R.R.]

250 (995).

4. Hatton v. UK, 37 E.H.R.R . 28 (2003).

5. E.g., Pressos Compa nia Naviera SA v. Belgium, 2 E.H.R .R. 30 (995).

6. Pine Valle y Developments Ltd v. Ireland, 4 E.H.R.R. 39 (99).

7. Niemietz v. Germany, 6 E.H.R.R. 97 (992).

8. The Cour t has also held that Convention st ates may not extradite per sons accused of

murder to part s of the United States in whic h they may face extended tours on “ death

row.” Soering v. UK,  E.H.R.R. 439 (989).

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