The European Court of Human Rights recently considered whether a state-owned company could be a “victim” of a human rights violation under the European Convention on Human Rights. In Transpetrol v. Slovakia the applicant was an oil-trading company, with the Slovakian state owning 51% of its shares at the relevant time (with private shareholders holding the remaining 49%). At the time of the ECtHR hearing, the State owned all the company's shares.
This case is centred on issues of standing (locus standi). PILA has identified that standing is one of the main barriers to public interest litigation.
The application before the Strasbourg court concerned the fairness of proceedings before the Constitutional Court about the ownership of the company's shares. The applicant company claimed that those proceedings were contrary to its rights to a fair trial (Article 6(1) of the ECHR) and its rights to peaceful enjoyment of possessions (Article 1 of Protocol No.1). Article 34 of the Convention states that "the Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”.
Due to the ownership of shares by both the government and private parties, the applicant company had features of both a governmental and a non-governmental organisation. The difficulty is that a governmental organisation can’t have standing as it would be claiming that the government violated its own rights and therefore the government would be both applicant and respondent. Both sides put forward varying arguments, the applicant arguing for example that the company was neither a public-law entity nor did it exercise any public administration powers. However the Court held that the decisive considerations for the determination of the the applicant company's standing under Article 34 of the Convention lay in the assessment of the overall procedural and substantive context of the application and its underlying facts. The court said that the unity of the applicant and respondent's interests were demonstrated by facts such as that the Government sought to contest the same judgment of the Constitutional Court. The court therefore held that it found no indication that the application attempted to further interests other than those that are concurrently interest of the State. The application was therefore found to be inadmissible.
Click here to read the judgment.
Click here to read a post on the case at the UK Human Rights Blog.
Click here to read more on standing as a barrier to public interest litigation.
Meanwhile in Nigeria, standing issues mean that an opportunity for public interest litigation has been missed. A recent article in The Nation criticised the recent High Court decision to strike out a Nigerian Bar Association (NBA) claim challenging the right of the National Assembly to fix their members' salaries, emoluments and allowances. The NBA claimed that the National Assembly's actions breached the country's consitution. The Chief Justice of the Federal High Court held that the NBA had no standing to bring proceedings. The article's writer, Gabriel Amalu, argued that the Chief Justice had allowed a golden opportunity to advance the cause of public interest litigation in Nigeria to slip by. He said that the Chief Justice’s preference for the restrictive interpretation of locus standi in Abraham Adesanya vs President of the F.R.N., instead of the more progressive determination by the same court in Fawheimi vs Akilu was unhelpful to the progression of social justice in Nigeria.
Click here to read the article in The National.