CASE OF GOLDER v. THE UNITED KINGDOM 21 February 1975 Daniela Čičkánová

SUBJECTS OF THIS CASE Mr. Golder - a United Kingdom citizen, who was convicted in the United Kingdom of robbery with violence and was sentenced to fifteen years’ imprisonment. Government of the United Kingdom of Great Brtiain and Northern Ireland (herinafter called the Government) The Europan Commission of Human Rights (herinafter called the Commission) The European Court of Human Rights (herinafter called the Court)

Problematic article Article 6 – Right to a fair trial In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights:  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;  to have adequate time and facilities for the preparation of his defence;  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

AS TO THE FACTS... In 1965 was Mr. Golder convicted in the United Kingdom of robbery with violence and was sentenced to fifteen years’ imprisonment. In 1969, Golder was serving his sentence in Parkhurst Prison on the Isle of Wight. On the evening of 24 October 1969, a serious disturbance occurred in a recreation area of the prison where Golder happened to be.

On 25 October, a prison officer, Mr. Laird, who had taken part and been injured in quelling the disturbance, made a statement identifying his assailants, in the course of which he declared: "Frazer was screaming... and Frape, Noonan and another prisoner whom I know by sight, I think his name is Golder... were swinging vicious blows at me.„ On 26 October Golder, together with other prisoners suspected of having participated in the disturbance, was segregated from the main body of prisoners. On 28 and 30 October, Golder was interviewed by police officers.

Different statements of two prison officers The first one, Mr. Laird, said three different views: ‘I think it was Golder’,... "If it was Golder and I certainly remember seeing him in the immediate group... I am not certain that he made an attack on me. " "Later when Noonan and Frape grabbed me, Frazer was also present but I cannot remember who the other inmate was..."

But there was another prison officer, who reported that: "... during the riot of that night I spent the majority of the time in the T.V. room with the prisoners who were not participating in the disturbance. His (Mr. Golder) presence with me can be borne out by officer... who observed us both from the outside.„ Golder was returned to his ordinary cell the same day.

Golder wrote to his Member of Parliament on 25 October and 1 November, and to a Chief Constable on 4 November 1969, about the disturbance of 24 October and the ensuing hardships it had entailed for him; the prison governor stopped these letters since Golder had failed to raise the subject-matter thereof through the authorised channels beforehand. Meanwhile, the prison authorities had been considering the various statements, and on 10 November prepared a list of charges which might be preferred against prisoners, including Golder, for offences against prison discipline. Entries relating thereto were made in Golder’s prison record. Those entries were expunged from the prison record in 1971 during the examination of the applicant’s case by the Commission.

On 20 March 1970, Golder addressed a petition to the Secretary of State for the Home Department, that is, the Home Secretary. He requested a transfer to some other prison and added: "I understand that a statement wrongly accusing me of participation in the events of 24th October last, made by Officer Laird, is lodged in my prison record. I suspect that it is this wrong statement that has recently prevented my being recommended by the local parole board for parole. I would respectfully request permission to consult a solicitor with a view to taking civil action for libel in respect of this statement.... Alternatively, I would request that an independent examination of my record be allowed by Mrs. G.M. Bishop who is magistrate..."

PRISON ACT In England " the Secretary of State may make rules for the regulation and management of prisoners... and for the... treatment... discipline and control of persons required to be detained..„ Rule 33 – Letters and visits generally (2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State. (8) A prisoner shall not be entitled under this Rule to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State.

OPINION OF THE COMMISSION  that Article 6 para. 1 guarantees a right of access to the courts;  that in Article 6 para. 1, whether read alone or together with other Articles of the Convention, there are no inherent limitations on the right of a convicted prisoner to institute proceedings and for this purpose to have unrestricted access to a lawyer;  that the same facts which constitute a violation of Article 6 para. 1 constitute also a violation of Article 8.  The Commission furthermore expressed the opinion that the right of access to the courts guaranteed by Article 6 para. 1 is not qualified by the requirement "within a reasonable time".

Submissions made to the Court Government Article 6 para. 1 (art. 6-1) of the Convention does not confer on the applicant a right of access to the courts, but confers only a right in any proceedings he may institute to a hearing that is fair and in accordance with the other requirements of the paragraph.

The questions to which the Court is requested to reply are the following: (1) Does Article 6 para. 1 (art. 6-1) of the Convention on secure to persons desiring to institute civil proceedings a right of access to the courts? (2) If Article 6 para. 1 (art. 6-1) secures such a right of access, are there inherent limitations relating to this right, or its exercise, which apply to the facts of the present case?... (4) According to the answers given to the foregoing questions, do the facts of the present case disclose the existence of a violation of Article 6 and of Article 8 (art. 6, art. 8) of the Convention?

ON THE RIGHT OF ACCESS The Court thus reaches the conclusion, that Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para. 1 (art. 6-1) as regards both the organisation and composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing. The Court has no need to ascertain in the present case whether and to what extent Article 6 para. 1 (art. 6-1) further requires a decision on the very substance of the dispute.

ON THE IMPLIED LIMITIATIONS Golder could justifiably wish to consult a solicitor with a view to instituting legal proceedings. It was not for the Home Secretary himself to appraise the prospects of the action contemplated; it was for an independent and impartial court to rule on any claim that might be brought. In declining to accord the leave which had been requested, the Home Secretary failed to respect, in the person of Golder, the right to go before a court as guaranteed by Article 6 para. 1 (art. 6-1).

FOR THESE REASONS, THE COURT 1. Holds by nine votes to three that there has been a breach of Article 6 para. 1 (art. 6- 1); 2. Holds unanimously that there has been a breach of Article 8 (art. 8); 3. Holds unanimously that the preceding findings amount in themselves to adequate just satisfaction under Article 50 (art. 50).

THANK YOU FOR YOUR ATTENTION!