Judgments - Government of the United States of America (Respondents) v. Barnette and another (Appellants)

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    23.  The applicant in Soering also submitted that the procedure in Virginia, which did not afford legal aid for collateral challenges in the Federal courts, was such that extradition would involve a breach of article 6 of the Convention. On this issue the court stated, at p 479, para 113:

    "The right to a fair trial in criminal proceedings, as embodied in article 6, holds a prominent place in a democratic society. The court does not exclude that an issue might exceptionally be raised under article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk."

    24.  The European Court has affirmed on a number of occasions the existence in principle of the possibility in a suitable case of invoking article 6. The context has generally been that of extradition or expulsion of aliens seeking admission to the country concerned, but in my opinion it is capable of being applied to the enforcement in a Convention state of a judgment obtained in another state, whether or not the latter is an adherent to the Convention. No decision was cited to your Lordships in which the court went so far as to hold that an act of extradition or expulsion amounted to a breach of article 6, and in all of the reported cases the European Court has strongly emphasised the exceptional nature of such a jurisdiction and the flagrant nature of the deprivation of an applicant's rights which would be required to trigger it.

    25.  These authorities were discussed in detail in the recent decisions of the House in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 3 WLR 23 and R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 3 WLR 58 and it is unnecessary to set them out in detail again in this judgment. It is sufficient to refer only to two of these cases. In Einhorn v France (Application No 71555/01, 16 October 2001), an extradition case, the court stated at para 32 of its judgment that:

    "it cannot be ruled out that an issue might exceptionally be raised under article 6 of the Convention by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of justice in the requesting country …"

In Tomic v United Kingdom (Application No 17837/03, 14 October 2003), an expulsion case, the court reaffirmed the principle in very similar language at para 3 of its judgment:

    "The court does not exclude that an issue might exceptionally be raised under article 6 by an expulsion decision in circumstances where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country …"

    26.  In the Ullah case [2004] 3 WLR 23 and the Razgar case [2004] 3 WLR 58 the House accepted the validity of these propositions, but also underlined the extreme degree of unfairness which would have to be established for an applicant to make out a case of indirect effect. It was of opinion that it would have to amount to a virtually complete denial or nullification of his article 6 rights, which might be expressed in terms familiar to lawyers in this jurisdiction as a fundamental breach of the obligations contained in the article.

    27.  Counsel for the appellant referred to a passage in the concurring opinion of Judge Matscher in Drozd and Janousek v France and Spain (1992) 14 EHRR 745, 795, in which he said:

    "According to the court's case-law, certain provisions of the Convention do have what one might call an indirect effect, even where they are not directly applicable. Thus, for example, a state may violate articles 3 and/or 6 of the Convention by ordering a person to be extradited or deported to a country, whether or not a member state of the Convention, where he runs a real risk of suffering treatment contrary to those provisions of the Convention (Soering v United Kingdom [11 EHRR 439]); other hypothetical cases of an indirect effect of certain provisions of the Convention are also quite conceivable.

    The same argument applies in reverse, so to speak; a contracting state may incur responsibility by reason of assisting in the enforcement of a foreign judgment, originating from a contracting or a non-contracting state, which has been obtained in conditions which constitute a breach of article 6, whether it is a civil or criminal judgment, and in the latter case whether it imposes a fine or a sentence of imprisonment."

In so far as this dictum suggests that enforcement of a foreign judgment might in principle give rise to responsibility on the part of a Convention state, I have no difficulty in accepting its correctness. It is to be observed, however, that in the following sentence Judge Matscher went on to say "This must clearly be a flagrant breach of article 6", so recognising the exceptional nature of the circumstances which could give rise to such responsibility. I therefore do not understand him to have meant to lay down any wider proposition than that which the House has accepted in the Ullah case [2004] 3 WLR 23 and the Razgar case [2004] 3 WLR 58.

    28.  I should mention also that the distinguished scholar Judge J-P Costa of the European Court has taken a different view of the effect of Pellegrini 35 EHRR 44. He expressed the opinion extra-judicially ((2002) Rivista internazionale dei diritti dell'uomo 435, 437-9) that Pellegrini goes beyond Soering and Drozd, so that it may be said to have overtaken those decisions. With all respect due to an authority of Judge Costa's eminence and to the opinions of the eminent academic commentators adduced on behalf of the appellant, I adhere to the view that the decision in Pellegrini turned upon the particular requirements in Italian law of the Concordat and that the flagrant denial test is still applicable, as is recognised by recent decisions of the European Court such as Einhorn and Tomic. The observation at the end of the penultimate sentence of the passage which I have quoted from Pellegrini (para 20 above) is too frail a peg on which to hang the contrary theory.

    29.  When one comes to apply these principles to the present case, the conclusion is in my opinion quite clear. The fugitive entitlement doctrine is not an arbitrary deprivation of a party's right to a hearing, but is intended to be a means of securing proper obedience to the orders of the court. As Lord Woolf CJ said at p 1928, para 35 of his judgment:

    "Where a party is guilty of contempt there may be no other sanction available if he is outside the jurisdiction of the court. The reason for the doctrine being applied by the United States Court of Appeals in Mrs Montgomery's case was not to vindicate the dignity of the court, but because the court thought that it was the only available sanction which could achieve obedience to the order of the court."

Although the application of the fugitive entitlement doctrine may be regarded as failing to secure all of the protection required by article 6 of the Convention, it is a rational approach which has commended itself to the Federal jurisdiction in the United States. As such it could not in my opinion be described by any stretch as a flagrant denial of the appellant's article 6 rights or a fundamental breach of the requirements of that article. It follows that the appellant's argument based on the indirect engagement of the responsibility of the United Kingdom must fail.

    30.  The same reasons are relevant in considering the issue whether it was contrary to the interests of justice to enforce the confiscation order by registering the judgment of the US district court. As Stanley Burnton J and the Court of Appeal have pointed out in their judgments, the appellant was by no means shut out from taking part in the proceedings. The merits of her contentions had been fully considered at first instance and on appeal she filed a brief and was represented by counsel. When the issue of fugitive disentitlement was raised by the court she was able to file a brief relating to this issue. Moreover, it seems to me a material consideration that the US Court of Appeals found that she had been taking active steps to hide assets and transfer funds in an effort to evade the forfeiture judgment. I accordingly agree with the conclusion of Stanley Burnton J and the Court of Appeal that it would not be contrary to the interests of justice to register the judgment.


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