5 March 2008 – Lord Chief Justice rules that Article 8 ECHR rights to private life and correspondence must be respected in mutual assistance proceedings concerning business transactions

On 4 & 5 March 2008, the Divisional Court (Lord Phillips of Worth Matravers LCJ presiding) heard the judicial review in Hafner and anor v. City of Westminster Magistrates’ Court. The case concerned a Swiss lawyer’s challenge to the magistrates’ court’s decision to obtain evidence under compulsion in London for forwarding to the Australian Securities and Investment Commission. The claimants asserted that the evidence concerning business matters referred to them, but the magistrates’ court refused to allow them to review the material to ensure that privileged or commercially sensitive material would not be unnecessarily disclosed, and concluded that the claimants’ privacy rights under Article 8 European Convention on Human Rights (ECHR) were not engaged.

Giving judgment the Lord Chief Justice held that the courts, when considering requests to obtain evidence in mutual assistance proceedings, must consider the privacy rights of third parties under Article 8 ECHR. In particular, where a request for mutual assistance sought the production of evidence of business matters potentially covered by privilege, obtained in confidence or otherwise subject to privacy concerns, the courts should consider whether to give notice of the proceedings to third parties affected by the evidence. The courts should also consider allowing such parties to have prior access to the evidence, if necessary upon giving an undertaking of non-disclosure and under the supervision of the court, for the purpose of making written and/or oral submissions in respect of their confidentiality interests.

The Lord Chief Justice quashed the magistrates’ court’s decision and issued detailed guidance on the procedure to be used to ensure respect for Article 8 rights in mutual assistance proceedings.

Piers Gardner and Ian Rodgers appeared on behalf of the claimants, instructed by Kingsley Napley.

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Ian Rogers
Piers Gardner

Two Kurdish groups, the PKK and Kongra-Gel will today attempt to persuade the CFI in Luxembourg to annul decisions by the EU Council (made in 2002 and 2004 respectively) to place them on a list of terrorist organisations.

The case (T-229/02) follows the PKK’s successful 2007 appeal to the ECJ to allow its case (brought by Osman Ocalan on its behalf) to proceed. The two groups will argue that the Council failed to give reasons and also that they were on ceasefire at the time the decisions were taken. The Applicants claim that they were and remain entitled to have these decisions expunged from the Community legal order. They are also seeking their costs.

Philip Moser represents the Applicant Mr Ocalan in the ECJ and the CFI.

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Philip Moser QC

On 26 March 2007 the Georgian Government lodged an inter-State case with the European Court of Human Rights (ECHR) against the Russian Federation.  The Monckton Chambers team was chosen to represent Georgia because of their ability to offer the expertise needed in this international case.

The case is the first inter-State case brought using the special procedure of Article 33 of the Convention (ie one brought by one Member State of the Council of Europe against another) since the ECHR became a full time institution in 1998 and only the fourth such case ever to be brought before the Court.

Georgia is represented before the ECHR by its Agent.  Piers Gardner and Jeremy McBride of Monckton Chambers have been instructed by the Georgian Ministry of Justice to act in relation to the case.

The case concerns the arrest, detention and collective expulsion of thousands of Georgians from Russia since September 2006 and the Russian imposition of an economic embargo on Georgia, by closing the border, forbidding maritime and air movements and cancelling all postal communications.  It asserts that Russia has established an administrative practice causing systemic breaches of the European Convention on Human Rights, including the:

• Right to liberty and security of person (Article 5)
• Prohibition of inhuman and degrading treatment, involving the conditions in detention and deaths in detention of deportees (Article 3)
• Collective expulsion of aliens (article 4 of Protocol 4 and Article 1 of Protocol 7)
• Rights to respect for home, family life and correspondence (Article 8), the peaceful enjoyment of possessions (Article 1 of Protocol No 1), the right to education (Article 2 of Protocol No 1)
• Prohibition on discrimination(Article 14), as well as
• Ineffectiveness of national remedies for those affected (Article 13) and the implementation of measures for an impermissible purpose (Article 18)

Our team combines enormous experience in advising and bringing proceedings in commercial and property-related human rights cases.  Their expertise includes both advising on the UK’s Human Rights Act and ECHR and appearing in the European Court of Human Rights. Unusually they have handled European human rights cases concerning not only the UK, but many other European countries, including Spain.  They are also regularly involved in advising and bringing proceedings under other human rights instruments such as the United Nations’ International Covenant on Civil and Political Rights as well as EU law.