Search
document

Document text Analytics

M.A. FAYED, A. FAYED AND S. FAYED v. the UNITED KINGDOMDISSENTING OPINION OF MR. B. MARXER

Doc ref: • ECHR ID:

Document date: April 7, 1993

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

M.A. FAYED, A. FAYED AND S. FAYED v. the UNITED KINGDOMDISSENTING OPINION OF MR. B. MARXER

Doc ref: • ECHR ID:

Document date: April 7, 1993

Cited paragraphs only

DISSENTING OPINION OF MR. B. MARXER

I agree with the Commission, that the right which is at stake -

the right to enjoy a good reputation and the right to have determined

before a tribunal the justification of attacks upon reputation - is a

civil one.

However, I conclude that there has been a violation of

Article 6 para. 1 of the Convention as regards

a) the actual making and publication of the Inspectors' report

on the takeover of the House of Fraser Holdings Plc;

b) the applicants' access to a court for proceeding against the

Inspectors and the Secretary of State;

c) the applicants' access to a court for proceeding against

others.

A. The making and publication of the report

As regards the applicability of Article 6 para. 1, the European

Court of Human Rights indicated that "in a democratic society within

the meaning of the Convention, the right to a fair administration of

justice holds such a prominent place that a restrictive interpretation

of Article 6 para. 1 would not correspond to the aim and the purpose

of that provision" (Eur. Court H.R., Delcourt judgment of

17 January 1970, Series A no. 11, p. 15, para. 29).

Whether there is a "contestation" as to a civil right, the Court

held in its Le Compte, Van Leuven and De Meyere judgment (judgment of

23 June 1981, Series A no. 43, p. 20, para 45) that "conformity with

the spirit of the Convention requires that this word should not be

construed too technically and that it should be given a substantive

rather than a formal meaning".

For Article 6 para. 1 to be applicable, a "determination" of a

right or obligation is required. This provision "covers all

proceedings, the result of which is decisive for private rights and

obligations ... The character of the legislation which governs how the

matter is to be determined (civil, commercial, administrative, etc.)

and that of the authority which is invested with jurisdiction in the

matter (ordinary court, administrative body, etc.) are therefore of

little consequence" (Eur. Court H.R., Ringeisen judgment of

16 July 1971, Series A no. 13, p. 39, para. 94).

The existence and the serious nature of a difference of opinion

between the parties concerned demonstrates that an issue under

Article 6 para. 1 arises (Eur. Court H.R., Sporrong and Lönnroth

judgment of 23 September 1982, Series A no. 52, p. 30, para. 81).

The "contestation" may concern both "questions of fact" and

"questions of law" (Le Compte, Van Leuven and De Meyere judgment, ibid,

p. 23, para 51).

Thus, proceedings are determinative, within the meaning of

Article 6 para. 1, if the outcome is of direct interest for the civil

right concerned. The actual civil right to be determined may not

necessarily form the main subject matter of the proceedings in

question. For example, the Benthem case at first sight concerned an

administrative refusal to grant a licence. However, the Court held

that such a licence had a proprietary character and closely involved

Mr. Benthem's civil rights linked to his commercial activities, with

direct repercussions on the value of his business and its goodwill, as

well as on his contractual relations (Eur. Court H.R., Benthem judgment

of 23 October 1985, Series A no. 97, p.15, paras. 34-36 ; see also

Ringeisen judgment, ibid, p. 39, para. 94 ; Eur. Court H.R., Sramek

judgment of 22 October 1984, Series A no. 84, p. 17, para. 35).

In the light of these considerations and taking into account the

background to the present case (see paras. 16-19 of the Commission's

Report above), the purpose of the Inspectors' inquiries, as well as the

questions the Inspectors addressed in their report (see para. 22

above), I cannot but conclude that the actual making of the report and

its publication not only had adverse effects on the applicants'

reputation, but also directly affected the civil right in question.

Hence, a determination of their right to a good reputation occurred.

B. The applicants' access to court in relation to the Inspectors and

the Secretary of State

Having had the benefit of reading Mr. Rozakis' partly dissenting

opinion I would like to join and support his view.

C. The applicants' access to court in relation to others

Having regard to the applicants' damaged reputation after the

publication of the Inspectors' report, I am, unlike the majority of the

Commission, convinced that a fair hearing in the libel proceedings

which the applicants brought against The Observer newspaper would

simply have been impossible. Given the realities of life, there was

an irreparable interference with the applicants' right of effective

access to court.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

30.08.90 Introduction and registration of

application

Examination of Admissibility

07.12.90 Commission's decision to give

notice of application to the

respondent Government and to

invite parties to submit

written observations on

admissibility and merits

10.06.91 Government's observations

15.11.91 Applicants' observations

20.02.92 Commission's decision to hold a

hearing

15.05.92 Hearing on admissibility and merits,

the parties being represented as

follows:

Government:

Mrs. A. Glover, Agent

Mr. M. Baker, QC, Counsel

Mr. J. Eadie, Counsel

Mrs. T. Dunstan ) Department

Mr. M. Osborne ) of Trade

Mr. J. Moore ) and Industry

Applicants:

Mr. A. Lester, QC, Counsel

Mr. P. Goulding, Counsel

Ms. L. Hutchinson, Solicitor

Mr. D. Marvin, Attorney

15.05.92 Commission's deliberations and

decision to declare application

partially admissible

Examination of the Merits

26.05.92 Parties invited to submit further

observations on the merits

30.07.92 Government's observations

04.09.92 Applicants' observations

07.12.92 Government's further observations

04.02.93 Applicants' further observations

30.03.93 Commission's deliberations on merits

and on text of its Article 31 Report.

Final votes taken.

07.04.93 Adoption of Report

LEXI

Lexploria AI Legal Assistant