FOURTH SECTION
DECISION
Application no. 10781/10
Michael MISICK
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 16 October 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 9 February 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Michael Misick, is a British Overseas Territories Citizen and Turks and Caicos Islands Belonger, who was born in 1966 and lives on Providenciales, an island in the Turks and Caicos Islands. He was represented before the Court by Mr E. Fitzgerald QC, a barrister practising in London.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The Turks and Caicos Islands (“the Territory”) are a British Overseas Territory in the West Indies. At the relevant time, the 2006 Constitution set out the rules regarding government of the Territory. The Constitution was made pursuant to powers conferred by the West Indies Act 1962 which allowed Her Majesty to make Orders in Council for, inter alia, the peace, order and good government of the Territory. The Constitution provided for a Governor, a Cabinet and an elected House of Assembly.
4. The applicant is the former Premier of the Turks and Caicos Islands and was, at the relevant time, the elected representative of the North Caicos East constituency and so an elected member of the House of Assembly. He is a citizen of the Territory and has been active in politics there for many years. He became the head of the Progressive National Party in 2002. He became Premier following elections in 2003 and was re-elected in February 2007.
5. In June 2008 a committee of the United Kingdom Parliament published a report on Overseas Territories. It expressed grave concerns about allegations of corruption in the Territory.
6. On 10 July 2008, the Governor appointed Sir Robin Auld as Commissioner to conduct an Inquiry into the allegations.
7. On 28 February 2009 the Commissioner delivered his Interim Report. He was satisfied that there was a high probability of systemic corruption and/or other serious dishonesty involving past and present elected members of the House of Assembly and others in recent years.
8. On 16 March 2009 the Governor issued a statement responding to the Interim Report. He indicated that the United Kingdom Government had formed the view that parts of the 2006 Constitution would need to be suspended and had decided to take steps to enable it to do so. On the same day he made public a draft Order in Council which would suspend parts of the 2006 Constitution initially for two years.
9. The applicant resigned as Premier on 23 March 2009. He remained an elected member of the House of Assembly.
10. The Order in Council was subsequently made by Her Majesty in Council in the form of the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (“the Order”) and laid before Parliament. The Order provided that parts of the 2006 Constitution were suspended and direct rule was assumed over the people of the Territory. In particular, the Order dissolved the House of Assembly and removed all elected officials for a period of two years.
11. The applicant sought leave to apply for judicial review to challenge the legality of the Order. Regarding the removal of direct rule, the applicant argued that the Order was inconsistent with the international law principle of self-determination; that it was inconsistent with the right to stand for election and, once elected, to sit as a member of parliament, guaranteed by Article 3 of Protocol No. 1 to the Convention; that it was contrary to the principle of legality and a disproportionate and irrational response to the alleged crimes of certain elected representatives; and that it was based on the recommendations of a flawed Inquiry and on recommendations which were themselves ultra vires the Inquiry’s terms of reference.
12. A hearing took place in the Divisional Court on 29 April 2009. Following the hearing, and at the request of the court, the Government confirmed by letter that before bringing the Order into effect they would withdraw the application of Article 3 of Protocol No. 1 from the Turks and Caicos Islands.
13. On 1 May 2009 the Divisional Court refused permission to seek judicial review. Regarding specifically the applicant’s argument under Article 3 of Protocol No. 1, Lord Justice Carnwath indicated:
“30. ... [T]his aspect of the argument has in my view been overtaken by events. Following the hearing we have been informed by the Treasury Solicitor that, if a decision is taken to bring the Order into force, the UK will in effect withdraw Article 3. This can be done without Parliamentary sanction. It requires a declaration to the Council of Europe under Article 4 of the First Protocol modifying the application of the Protocol to the territory by withdrawing the application of Article 3. It will be made clear that this is a temporary measure, pending steps to restore the principles of good governance in the Territory.”
14. As to potential limitations on the Crown’s power to make laws for the peace, order and good government of the Territory, Carnwath LJ examined, inter alia, the special status of human rights in judicial review. He referred to the House of Lords judgment in R (Bancoult) v Home Secretary (No 2) [2008] UKHL 61, where that court had examined the statutory language conferring the power, and continued:
“33. Even allowing for the differences between the various speeches [in Bancoult], those of the majority in my view provide a clear message that the Crown’s power to legislate for the good government of a territory ..., although in principle subject to judicial review, is in practice not open to question in the courts other than in the most exceptional circumstances, which did not include the abrogation of the basic right relied on in that case. I see no reason to think the rights claimed in this case, important as they are, should be accorded greater weight.”
15. The applicant appealed against the refusal of permission to the Court of Appeal arguing, inter alia, that the Divisional Court had erred in finding that the Crown’s power to legislate was not limited by any requirement to comply with fundamental rights. The appeal was refused on 13 August 2009.
16. On 14 August 2009, by letter to the Secretariat of the Council of Europe, the Government removed the application of Article 3 of Protocol No. 1 to the Turks and Caicos Islands.
17. The Order entered into force on 14 August 2009. Following its entry into force, the Governor was responsible for administering the Territory.
B. Relevant domestic law
18. Section 5 of the West Indies Act 1962 empowers Her Majesty to provide by Order in Council for the government of the Territory. The relevant part of section 5(1) provides:
“Her Majesty may by Order in Council make such provision as appears to Her expedient for the government of any of the colonies to which this section applies, and for that purpose may provide for the establishment for the colony of such authorities as She thinks expedient and may empower such of them as may be specified in the Order to make laws either generally for the peace, order and good government of the colony or for such limited purposes as may be so specified subject, however, to the reservation to Herself of power to make laws for the colony for such (if any) purposes as may be so specified.”
19. Section 7 makes clear that the power to make an Order includes power to vary or revoke the Order.
20. The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 entered into force on 14 August 2009. It dissolved the House of Assembly and removed all elected officials for a period of two years.
COMPLAINT
The applicant complained under Article 8 of the Convention that his removal from his position as the elected representative of the North Caicos East constituency violated his right to respect for private life.
THE LAW
21. The applicant argued that he had been in involved in public life for many years and had been an elected member of the House of Assembly for over five years. His desire and commitment to represent the people of the Turks and Caicos Islands and take part in public life was, he submitted, clearly part and parcel of his life and therefore fell within the aspects of a person’s private life protected by Article 8, which provides:
“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.”
22. The Court notes at the outset that the applicant’s complaint concerns his participation in public life as a politician and, more specifically, a member of the legislature, namely the House of Assembly. He relied on Article 3 of Protocol No. 1 to the Convention in the context of the domestic judicial review proceedings, but was prevented from doing so in the proceedings before this Court by the Government’s withdrawal of the application of that Article to the Turks and Caicos Islands. The applicant does not seek to challenge the respondent State’s decision to withdraw the application of Article 3 of Protocol No. 1 to the Territory.
23. The Court reiterates that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005‑X; and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 54, ECHR 2012). However, it is not for Article 8 to fill a gap in fundamental rights protection which results from the decision of the respondent State to exercise the possibility provided for in Protocol No. 1 to withdraw the application of its Article 3 to the Territory. The Court therefore emphasises that Article 8 should not, in principle, be interpreted in such a way as to incorporate the requirements of Article 3 of Protocol No. 1 in respect of territories to which the latter Article does not apply (see, mutatis mutandis, Austin and Others, cite above, § 55).
24. The notion of “private life” in Article 8 is a broad term not susceptible to exhaustive definition (see, among many other authorities, Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251‑B; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). Among others aspects, it protects a right to identity and personal development and a right to establish and develop relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX; Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003‑IX (extracts); and Gillan and Quinton v. the United Kingdom, no. 4158/05, § 61, ECHR 2010 (extracts)).
25. However, the application of Article 8 to professional or public activities is not open-ended. Article 8 does not, for example, guarantee a right of recruitment to the civil service (see Vogt v. Germany, 26 September 1995, § 43, Series A no. 323; and Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 57, ECHR 2007‑II) or a right to freedom of profession (see Thlimmenos v. Greece [GC], no. 34369/97, § 41, ECHR 2000‑IV). In Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, §§ 46-47, ECHR 2004‑VIII, the Court concluded that notwithstanding its approach in Vogt and Thlimmenos, the far-reaching ban on former KGB agents taking up private sector employment, at issue in the case, did affect “private life” such as to engage Article 8. It noted in this context that the ban had created serious difficulties for them in terms of earning their living, with obvious repercussions on the enjoyment of their private lives, and that the publicity caused by the ban and its application to them had caused them to suffer constant embarrassment and had impeded their establishment of contacts with the outside world (§§ 48-49. See also the Court’s recent judgment in D.M.T. and D.K.I. v. Bulgaria, no. 29476/06, § 103, 24 July 2012 (not yet final)). Similarly, in Albanese v. Italy, no. 77924/01, § 54, 23 March 2006, the Court concluded that a number of limitations imposed on the activities of the applicant as a result of his bankruptcy influenced his ability to develop relationships with the outside world and that Article 8 was accordingly engaged. However, in the subsequent case of Calmanovici v. Romania, no. 42250/02, §§ 137-139, 1 July 2008, the Court declared the applicant’s complaint under Article 8 concerning his temporary suspension from his functions as a police officer to be incompatible ratione materiae with the provisions of the Convention. It observed, inter alia, that the applicant did not allege that he was prevented from finding employment in the private sector and thus distinguished its judgment in Sidabras and Džiautas, cited above.
26. The Convention organs have also had an opportunity to consider the applicability of Article 8 to participation in political activities. In Baškauskaitė v. Lithuania, no. 41090/98, Commission decision of 21 October 1998, unreported, the Commission examined an application brought by an individual who had been refused registration as a candidate in presidential elections. It rejected her complaint under Article 3 of Protocol No. 1, finding the Article to be inapplicable to the election of a Head of State. As to her complaint that the decisions of the authorities depriving her of the possibility to stand as a candidate had an impact on her relations with other people and on her professional activities, therefore constituting an unjustified interference with her private life, the Commission found that there had been no interference with her private life under Article 8 of the Convention. In particular, it indicated that it was unable to detect what concrete restrictions were imposed on, or impediments were suffered by, the applicant in this respect, or what other obligations the Lithuanian authorities had failed to meet, in depriving her of the possibility to run in the presidential election, which could have encroached upon her private life.
27. In Mółka v. Poland (dec.), no. 56550/00, ECHR 2006‑IV, the Court raised of its own motion a complaint under Article 8 in the context of facilities at a polling station not adapted to suit those in wheelchairs which had prevented the applicant from exercising his right to vote in municipal elections (to which Article 3 of Protocol No. 1 did not apply). It noted that the case related to the applicant’s involvement in the life of his local community and the exercise of his civic duties. Although it ultimately considered it unnecessary to decide on the applicability of Article 8 given that the case was inadmissible for other reasons, it nonetheless indicated that it might be arguable that the situation at issue in the case touched on the applicant’s possibility of developing social relations with other members of his community and the outside world, and was pertinent to his own personal development. It is, however, noteworthy that there was extensive reference in the decision to the applicant’s disability, and the Court also referred to other international texts stressing the importance of full participation of people with disabilities in society, and in particular in political and public life.
28. Turning to the facts of the present case, the Court must determine whether the applicant’s removal from elected office can be said to touch on aspects of his private life, such as to engage the guarantees of Article 8. In this respect, the Court considers it instructive to examine how Article 8 is applied to politicians and public figures in the context of the Court’s case-law concerning the balance between the right to privacy and protection from defamation (matters which in principle tend to engage Article 8 of the Convention) and the right to freedom of expression (see, for a recent discussion of this area, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 110, ECHR 2012). The Court has frequently explained that the protection of privacy enjoyed by public figures under Article 8 is reduced. Thus in Von Hannover v. Germany, no. 59320/00, § 64, ECHR 2004‑VI, the Court reiterated that in certain special circumstances the public’s right to be informed could even extend to aspects of the private life of public figures, particularly where politicians were concerned (see also Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 48, 4 June 2009; Von Hannover (no. 2), cited above, § 110; and Axel Springer AG v. Germany [GC], no. 39954/08, § 91, 7 February 2012). In Karakó v. Hungary, no. 39311/05, § 28, 28 April 2009, the Court concluded that the applicant’s allegation that his reputation as a politician had been harmed by the impugned publication was not a sustainable claim regarding the protection of his right to respect for personal integrity under Article 8 of the Convention, as he had failed to demonstrate that the allegations in the publication were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant’s private life. In Lahtonen v. Finland, no. 29576/09, § 66, 17 January 2012, it reiterated that the limits of permissible criticism in the context of defamation complaints were wider as regards a politician than as regards a private individual (see also Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; and Saaristo and Others v. Finland, no. 184/06, § 59, 12 October 2010).
29. The Court is of the view that its approach to the application of Article 8 to politicians in freedom of expression cases lends weight to the idea that participation in politics, in particular the exercise of parliamentary mandate, is very much a matter of public life, to which Article 8 can have only limited application (compare and contrast Mółka, cited above). Where aspects strictly related to private or family life are at stake – such as a right to privacy when engaging in activities of a purely private nature – the Court has acknowledged that Article 8 considerations may arise notwithstanding the public nature of politics. However, in a case like the present one, where the applicant has not provided any concrete details of how the dissolution of the House of Assembly encroached upon his privacy or private life guarantees, including his ability to develop relationships with the outside world, but merely seeks to assert a right to take part in public life as an elected politician, the Court considers that Article 8 has no role to play.
30. The Court therefore concludes that Article 8 of the Convention is not applicable in the present case. The application is therefore incompatible ratione materiae with the provisions of the Convention and must accordingly be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıLech Garlicki
Deputy RegistrarPresident
Full & Egal Universal Law Academy