FOURTH SECTION
DECISION
Application no. 10781/10
Michael MISICK
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on
16 October 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 9 February 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Michael Misick, is a British Overseas Territories
Citizen and Turks and Caicos Islands Belonger, who was born in 1966 and
lives on Providenciales, an island in the Turks and Caicos Islands. He was
represented before the Court by Mr E. Fitzgerald QC, a barrister practising
in London.
2. The facts of the case, as submitted by the applicant, may be
summarised as follows.
3. The Turks and Caicos Islands (“the Territory”) are a British Overseas
Territory in the West Indies. At the relevant time, the 2006 Constitution set
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MISICK v. THE UNITED KINGDOM DECISION
out the rules regarding government of the Territory. The Constitution was
made pursuant to powers conferred by the West Indies Act 1962 which
allowed Her Majesty to make Orders in Council for, inter alia, the peace,
order and good government of the Territory. The Constitution provided for
a Governor, a Cabinet and an elected House of Assembly.
4. The applicant is the former Premier of the Turks and Caicos Islands
and was, at the relevant time, the elected representative of the North Caicos
East constituency and so an elected member of the House of Assembly. He
is a citizen of the Territory and has been active in politics there for many
years. He became the head of the Progressive National Party in 2002. He
became Premier following elections in 2003 and was re-elected in February
2007.
5. In June 2008 a committee of the United Kingdom Parliament
published a report on Overseas Territories. It expressed grave concerns
about allegations of corruption in the Territory.
6. On 10 July 2008, the Governor appointed Sir Robin Auld as
Commissioner to conduct an Inquiry into the allegations.
7. On 28 February 2009 the Commissioner delivered his Interim Report.
He was satisfied that there was a high probability of systemic corruption
and/or other serious dishonesty involving past and present elected members
of the House of Assembly and others in recent years.
8. On 16 March 2009 the Governor issued a statement responding to the
Interim Report. He indicated that the United Kingdom Government had
formed the view that parts of the 2006 Constitution would need to be
suspended and had decided to take steps to enable it to do so. On the same
day he made public a draft Order in Council which would suspend parts of
the 2006 Constitution initially for two years.
9. The applicant resigned as Premier on 23 March 2009. He remained an
elected member of the House of Assembly.
10. The Order in Council was subsequently made by Her Majesty in
Council in the form of the Turks and Caicos Islands Constitution (Interim
Amendment) Order 2009 (“the Order”) and laid before Parliament. The
Order provided that parts of the 2006 Constitution were suspended and
direct rule was assumed over the people of the Territory. In particular, the
Order dissolved the House of Assembly and removed all elected officials
for a period of two years.
11. The applicant sought leave to apply for judicial review to challenge
the legality of the Order. Regarding the removal of direct rule, the applicant
argued that the Order was inconsistent with the international law principle
of self-determination; that it was inconsistent with the right to stand for
election and, once elected, to sit as a member of parliament, guaranteed by
Article 3 of Protocol No. 1 to the Convention; that it was contrary to the
principle of legality and a disproportionate and irrational response to the
alleged crimes of certain elected representatives; and that it was based on
MISICK v. THE UNITED KINGDOM DECISION
3
the recommendations of a flawed Inquiry and on recommendations which
were themselves ultra vires the Inquiry’s terms of reference.
12. A hearing took place in the Divisional Court on 29 April 2009.
Following the hearing, and at the request of the court, the Government
confirmed by letter that before bringing the Order into effect they would
withdraw the application of Article 3 of Protocol No. 1 from the Turks and
Caicos Islands.
13. On 1 May 2009 the Divisional Court refused permission to seek
judicial review. Regarding specifically the applicant’s argument under
Article 3 of Protocol No. 1, Lord Justice Carnwath indicated:
“30. ... [T]his aspect of the argument has in my view been overtaken by events.
Following the hearing we have been informed by the Treasury Solicitor that, if a
decision is taken to bring the Order into force, the UK will in effect withdraw Article
3. This can be done without Parliamentary sanction. It requires a declaration to the
Council of Europe under Article 4 of the First Protocol modifying the application of
the Protocol to the territory by withdrawing the application of Article 3. It will be
made clear that this is a temporary measure, pending steps to restore the principles of
good governance in the Territory.”
14. As to potential limitations on the Crown’s power to make laws for
the peace, order and good government of the Territory, Carnwath LJ
examined, inter alia, the special status of human rights in judicial review.
He referred to the House of Lords judgment in R (Bancoult) v Home
Secretary (No 2) [2008] UKHL 61, where that court had examined the
statutory language conferring the power, and continued:
“33. Even allowing for the differences between the various speeches [in Bancoult],
those of the majority in my view provide a clear message that the Crown’s power to
legislate for the good government of a territory ..., although in principle subject to
judicial review, is in practice not open to question in the courts other than in the most
exceptional circumstances, which did not include the abrogation of the basic right
relied on in that case. I see no reason to think the rights claimed in this case, important
as they are, should be accorded greater weight.”
15. The applicant appealed against the refusal of permission to the Court
of Appeal arguing, inter alia, that the Divisional Court had erred in finding
that the Crown’s power to legislate was not limited by any requirement to
comply with fundamental rights. The appeal was refused on 13 August
2009.
16. On 14 August 2009, by letter to the Secretariat of the Council of
Europe, the Government removed the application of Article 3 of Protocol
No. 1 to the Turks and Caicos Islands.
17. The Order entered into force on 14 August 2009. Following its entry
into force, the Governor was responsible for administering the Territory.
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MISICK v. THE UNITED KINGDOM DECISION
B. Relevant domestic law
18. Section 5 of the West Indies Act 1962 empowers Her Majesty to
provide by Order in Council for the government of the Territory. The
relevant part of section 5(1) provides:
“Her Majesty may by Order in Council make such provision as appears to Her
expedient for the government of any of the colonies to which this section applies, and
for that purpose may provide for the establishment for the colony of such authorities
as She thinks expedient and may empower such of them as may be specified in the
Order to make laws either generally for the peace, order and good government of the
colony or for such limited purposes as may be so specified subject, however, to the
reservation to Herself of power to make laws for the colony for such (if any) purposes
as may be so specified.”
19. Section 7 makes clear that the power to make an Order includes
power to vary or revoke the Order.
20. The Turks and Caicos Islands Constitution (Interim Amendment)
Order 2009 entered into force on 14 August 2009. It dissolved the House of
Assembly and removed all elected officials for a period of two years.
COMPLAINT
The applicant complained under Article 8 of the Convention that his
removal from his position as the elected representative of the North Caicos
East constituency violated his right to respect for private life.
THE LAW
21. The applicant argued that he had been in involved in public life for
many years and had been an elected member of the House of Assembly for
over five years. His desire and commitment to represent the people of the
Turks and Caicos Islands and take part in public life was, he submitted,
clearly part and parcel of his life and therefore fell within the aspects of a
person’s private life protected by Article 8, which provides:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
MISICK v. THE UNITED KINGDOM DECISION
5
22. The Court notes at the outset that the applicant’s complaint concerns
his participation in public life as a politician and, more specifically, a
member of the legislature, namely the House of Assembly. He relied on
Article 3 of Protocol No. 1 to the Convention in the context of the domestic
judicial review proceedings, but was prevented from doing so in the
proceedings before this Court by the Government’s withdrawal of the
application of that Article to the Turks and Caicos Islands. The applicant
does not seek to challenge the respondent State’s decision to withdraw the
application of Article 3 of Protocol No. 1 to the Territory.
23. The Court reiterates that the Convention must be read as a whole,
and interpreted in such a way as to promote internal consistency and
harmony between its various provisions (see Stec and Others v. the United
Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X;
and Austin and Others v. the United Kingdom [GC], nos. 39692/09,
40713/09 and 41008/09, § 54, ECHR 2012). However, it is not for Article 8
to fill a gap in fundamental rights protection which results from the decision
of the respondent State to exercise the possibility provided for in Protocol
No. 1 to withdraw the application of its Article 3 to the Territory. The Court
therefore emphasises that Article 8 should not, in principle, be interpreted in
such a way as to incorporate the requirements of Article 3 of Protocol No. 1
in respect of territories to which the latter Article does not apply (see,
mutatis mutandis, Austin and Others, cite above, § 55).
24. The notion of “private life” in Article 8 is a broad term not
susceptible to exhaustive definition (see, among many other authorities,
Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B; and S.
and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04,
§ 66, ECHR 2008). Among others aspects, it protects a right to identity and
personal development and a right to establish and develop relationships with
other human beings and the outside world. It may include activities of a
professional or business nature. There is, therefore, a zone of interaction of
a person with others, even in a public context, which may fall within the
scope of “private life” (see P.G. and J.H. v. the United Kingdom,
no. 44787/98, § 56, ECHR 2001-IX; Perry v. the United Kingdom,
no. 63737/00, § 36, ECHR 2003-IX (extracts); and Gillan and Quinton
v. the United Kingdom, no. 4158/05, § 61, ECHR 2010 (extracts)).
25. However, the application of Article 8 to professional or public
activities is not open-ended. Article 8 does not, for example, guarantee a
right of recruitment to the civil service (see Vogt v. Germany, 26 September
1995, § 43, Series A no. 323; and Vilho Eskelinen and Others v. Finland
[GC], no. 63235/00, § 57, ECHR 2007-II) or a right to freedom of
profession (see Thlimmenos v. Greece [GC], no. 34369/97, § 41, ECHR
2000-IV). In Sidabras and Džiautas v. Lithuania, nos. 55480/00 and
59330/00, §§ 46-47, ECHR 2004-VIII, the Court concluded that
notwithstanding its approach in Vogt and Thlimmenos, the far-reaching ban
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MISICK v. THE UNITED KINGDOM DECISION
on former KGB agents taking up private sector employment, at issue in the
case, did affect “private life” such as to engage Article 8. It noted in this
context that the ban had created serious difficulties for them in terms of
earning their living, with obvious repercussions on the enjoyment of their
private lives, and that the publicity caused by the ban and its application to
them had caused them to suffer constant embarrassment and had impeded
their establishment of contacts with the outside world (§§ 48-49. See also
the Court’s recent judgment in D.M.T. and D.K.I. v. Bulgaria, no. 29476/06,
§ 103, 24 July 2012 (not yet final)). Similarly, in Albanese v. Italy, no.
77924/01, § 54, 23 March 2006, the Court concluded that a number of
limitations imposed on the activities of the applicant as a result of his
bankruptcy influenced his ability to develop relationships with the outside
world and that Article 8 was accordingly engaged. However, in the
subsequent case of Calmanovici v. Romania, no. 42250/02, §§ 137-139, 1
July 2008, the Court declared the applicant’s complaint under Article 8
concerning his temporary suspension from his functions as a police officer
to be incompatible ratione materiae with the provisions of the Convention.
It observed, inter alia, that the applicant did not allege that he was
prevented from finding employment in the private sector and thus
distinguished its judgment in Sidabras and Džiautas, cited above.
26. The Convention organs have also had an opportunity to consider the
applicability of Article 8 to participation in political activities. In
Baškauskaitė v. Lithuania, no. 41090/98, Commission decision of 21
October 1998, unreported, the Commission examined an application
brought by an individual who had been refused registration as a candidate in
presidential elections. It rejected her complaint under Article 3 of Protocol
No. 1, finding the Article to be inapplicable to the election of a Head of
State. As to her complaint that the decisions of the authorities depriving her
of the possibility to stand as a candidate had an impact on her relations with
other people and on her professional activities, therefore constituting an
unjustified interference with her private life, the Commission found that
there had been no interference with her private life under Article 8 of the
Convention. In particular, it indicated that it was unable to detect what
concrete restrictions were imposed on, or impediments were suffered by, the
applicant in this respect, or what other obligations the Lithuanian authorities
had failed to meet, in depriving her of the possibility to run in the
presidential election, which could have encroached upon her private life.
27. In Mółka v. Poland (dec.), no. 56550/00, ECHR 2006-IV, the Court
raised of its own motion a complaint under Article 8 in the context of
facilities at a polling station not adapted to suit those in wheelchairs which
had prevented the applicant from exercising his right to vote in municipal
elections (to which Article 3 of Protocol No. 1 did not apply). It noted that
the case related to the applicant’s involvement in the life of his local
community and the exercise of his civic duties. Although it ultimately
MISICK v. THE UNITED KINGDOM DECISION
7
considered it unnecessary to decide on the applicability of Article 8 given
that the case was inadmissible for other reasons, it nonetheless indicated that
it might be arguable that the situation at issue in the case touched on the
applicant’s possibility of developing social relations with other members of
his community and the outside world, and was pertinent to his own personal
development. It is, however, noteworthy that there was extensive reference
in the decision to the applicant’s disability, and the Court also referred to
other international texts stressing the importance of full participation of
people with disabilities in society, and in particular in political and public
life.
28. Turning to the facts of the present case, the Court must determine
whether the applicant’s removal from elected office can be said to touch on
aspects of his private life, such as to engage the guarantees of Article 8. In
this respect, the Court considers it instructive to examine how Article 8 is
applied to politicians and public figures in the context of the Court’s caselaw concerning the balance between the right to privacy and protection from
defamation (matters which in principle tend to engage Article 8 of the
Convention) and the right to freedom of expression (see, for a recent
discussion of this area, Von Hannover v. Germany (no. 2) [GC], nos.
40660/08 and 60641/08, § 110, ECHR 2012). The Court has frequently
explained that the protection of privacy enjoyed by public figures under
Article 8 is reduced. Thus in Von Hannover v. Germany, no. 59320/00,
§ 64, ECHR 2004-VI, the Court reiterated that in certain special
circumstances the public’s right to be informed could even extend to aspects
of the private life of public figures, particularly where politicians were
concerned (see also Standard Verlags GmbH v. Austria (no. 2), no.
21277/05 § 48, 4 June 2009; Von Hannover (no. 2), cited above, § 110; and
Axel Springer AG v. Germany [GC], no. 39954/08, § 91, 7 February 2012).
In Karakó v. Hungary, no. 39311/05, § 28, 28 April 2009, the Court
concluded that the applicant’s allegation that his reputation as a politician
had been harmed by the impugned publication was not a sustainable claim
regarding the protection of his right to respect for personal integrity under
Article 8 of the Convention, as he had failed to demonstrate that the
allegations in the publication were of such a seriously offensive nature that
their publication had an inevitable direct effect on the applicant’s private
life. In Lahtonen v. Finland, no. 29576/09, § 66, 17 January 2012, it
reiterated that the limits of permissible criticism in the context of
defamation complaints were wider as regards a politician than as regards a
private individual (see also Lingens v. Austria, 8 July 1986, § 42, Series A
no. 103; and Saaristo and Others v. Finland, no. 184/06, § 59, 12 October
2010).
29. The Court is of the view that its approach to the application of
Article 8 to politicians in freedom of expression cases lends weight to the
idea that participation in politics, in particular the exercise of parliamentary
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MISICK v. THE UNITED KINGDOM DECISION
mandate, is very much a matter of public life, to which Article 8 can have
only limited application (compare and contrast Mółka, cited above). Where
aspects strictly related to private or family life are at stake – such as a right
to privacy when engaging in activities of a purely private nature – the Court
has acknowledged that Article 8 considerations may arise notwithstanding
the public nature of politics. However, in a case like the present one, where
the applicant has not provided any concrete details of how the dissolution of
the House of Assembly encroached upon his privacy or private life
guarantees, including his ability to develop relationships with the outside
world, but merely seeks to assert a right to take part in public life as an
elected politician, the Court considers that Article 8 has no role to play.
30. The Court therefore concludes that Article 8 of the Convention is not
applicable in the present case. The application is therefore incompatible
ratione materiae with the provisions of the Convention and must
accordingly be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı
Deputy Registrar
Lech Garlicki
President