Don’t open the floodgates: fines and Article 1 Protocol 1

In the recent case of Konstantin Stefanov, the Strasbourg Court examined the acceptability of a fine (the equivalent of EUR 260) imposed on a lawyer, appointed ex officio by a domestic court, for declining to represent a defendant from the viewpoint of Article 1 Protocol 1. The Court did not find a violation of this provision, taking into account the wide margin of appreciation allowed to the State in order to guarantee the smooth functioning of the justice system, the fact that a remedy to challenge the fine had been available to the applicant and because the Court considered the amount of the fine “neither prohibitive, nor oppressive or otherwise disproportionate”. This blog post is not concerned with the outcome of the case, but rather with the remarkable fact of the Court considering it self-evident that the imposition of a fine interferes with the right to peaceful enjoyment of one’s possessions.

A questionable chain of precedents

Such self-evidence is surprising, given the fact that there are no genuine authoritative cases in which the Court has clearly recognized that fines necessarily fall within the scope of Article 1 Protocol 1. In Konstantin Stefanov, the Court justified such approach by holding that a “fair balance” between the right to property and the general interests “will not be struck where the person concerned bears an individual and excessive burden.” The Court continued, holding that:

“Consequently, a financial liability arising out of a fine may undermine the guarantee afforded by that provision if it places an excessive burden on the person or fundamentally interferes with his or her financial position (see Valico S.r.l., cited above).”

First of all, the Court put the cart before the horse by invoking the notion of a “fair balance” in order to justify why a fine would enter the scope of Article 1 Protocol 1. Clearly, the notion of a “fair balance” can only be relevant where the Court has preliminarily and independently established that a “possession” in the sense of Article 1 Protocol 1 has been affected. Secondly, it is remarkable that the Court had to resort to an obscure inadmissibility decision as an authority to elevate the above consideration to the status of a general principle of the Court’s Article 1 Protocol 1 case law. The case of Valico concerned a EUR 1,3 million fine imposed on a company for constructing a building in breach of planning permission. In that case, the Court considered that:

“the imposition of a fine will in principle constitute interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1 as it deprives the person concerned of an item of property, namely the sum that has to be paid (see Phillips v. the United Kingdom, no. 41087/98, § 50, ECHR 2001-VII).”

Moving further down the chain of authorities invoked by the Court, in the cited paragraph of the Phillips judgment, the Court held that:

“the “possession” which forms the object of this complaint is the sum of money, namely GBP 91,400, which the applicant has been ordered by the Crown Court to pay, in default of which payment he is liable to be imprisoned for two years. It considers that this measure amounts to an interference with the applicant’s right to peaceful enjoyment of his possessions and that Article 1 of Protocol No. 1 is therefore applicable.”

However, the case of Phillips did not at all concern a fine, but instead concerned a confiscation measure in the context of criminal proceedings on account of a drugs-related offence, based on the legal assumption that “any property appearing to have been held by the defendant at any time since his conviction or during the period of six years before the date on which the criminal proceedings were commenced was received as a payment or reward in connection with drug trafficking.”

In short, there’s something wrong with the chain of precedents here, the Court in Konstantin Stefanov building its argument on an obscure inadmissibility decision that dubiously misinterpreted an earlier Chamber judgment that concerned a type of measure that was far from readily comparable with the mere imposition of a fine. In Phillips, the case concerned the equivalent financial value of determinate assets held by the applicants, as opposed to a mere fine, which does not correspond to a determinate asset held by an individual. It is somewhat artificial to equate the mere financial loss suffered by an individual when he or she pays a sum in compliance with a fine, with the “expropriation” of a determinate “possession”.

Who’s next? Traffic offenders?

Such placement on the same footing may not be entirely surprising given the fact that the notion of “possession” under Article 1 Protocol 1 has been constructed by the Court as corresponding to “the acquired economic value of [an] individual interest” (Harris, O’Boyle & Warbrick’s Law of the European Convention on Human Rights, 2nd edn, 657). The Court’s over-reliance on monetary considerations is indicative of its failure to legally construct the human right to property under Article 1 Protocol 1 as something conceptually different from an ordinary civil right to property (in the same vein, see my earlier blog post here).

The question of whether fines enter the scope of Article 1 Protocol 1 may provide the Court with a good occasion to set some boundaries as to what is considered as a “possession” under this provision. Given the fact that the line of reasoning from Konstantin Stefanov has not yet been confirmed more authoritatively, it may not be too late for the Court to close the floodgates, in order to avoid, say, all of Europe’s traffic offenders from filing applications in Strasbourg. The question whether a fine affects one’s Convention rights is of course different where such fine is imposed to punish a person for exercising his or her rights, such as for example holds true in the area of freedom of expression and freedom of association. There is however no reason why protection under the Convention against fines in other areas should go any further than the due process requirements of Article 6. It seems like a distortion of human rights discourse to consider that a fine imposed on a lawyer for failing to represent a client (a requirement deliberately kept outside the scope of Article 4 by the Court in Van Der Mussele) or a fine imposed to punish a traffic offender would require justification under the Convention.

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