1975

ECHR

Golder Case

The applicant, a UK citizen was convicted in 1965 of robbery with violence in the UK. On 1969 disturbances occurred in prison, and a prison officer said that he had assailed him during the disturbances. Golder intended to send letters to the parliament, but prison governor stopped them. On 1970 Golder petitioned the Home Secretary permission to consult a solicitor, he believed that this facts had influenced the refusal of his parole, and wanted to take civil action. The permission was denied. He left prison 1972. The applicant made 2 complaints. Stopping of letters, declared by the Commission inadmissible for failure of exhaust local remedies and Refusal to consult a solicitor. The commission considered this a violation to 6.1 of the Convention, right to access to courts. The commission considered that consulting a solicitor was a normal preliminary step to taking civil action, probably an essential one.

(34) As stated in 31.2 VCLT the preamble to a treaty forms an integral part of the context, it is very useful for the determination of the object and purpose of the instrument to be constructed. In the case the relevant part: governments of Europe with ‘common heritage of political traditions, ideals, freedoms and the rule of law, [resolved] to take steps for the collective enforcement of certain of the rights stated in the universal declaration of’ 1948. The selective nature of the convention cannot be put in question, and the preamble does not include the rule of law in the object and purpose, but points to it as one of the common spiritual heritage of Europe, this is not just a rhetorical phrase, one reason for the ‘collective enforcement of certain rights’ was the profound belief in the rule of law. This is confirmed by art 3, where every state is bound to accept the rule of law. In civil matters there is no rule of law without access to courts. (35) Article 31.3.c VCLT indicates that account is to be taken, together with the context, of ‘any relevant rules of international law applicable in the relations between the parties’. Among those rules are general principles of law, art 38.1 ICJ. The committee considered ‘unnecessary’ to insert a specific clause in the convention to the Commission to apply such principles. The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of universally recognised fundamental principles of law; the same is true of the principle of IL which forbids the denial of justice. Fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.