European Court of Human Rights

  • Anonymous
  • unspecified
  • Offline
Posted: Sat, 01/11/2008 - 01:45

I was just scrolling though the "Convention for the Protection of Human Rights and wondering if this could help.

Underneath all the complexities of this case is a basic incredulous question that we ourselves and people we may tell of this situation express: "Surely they cannot do this?!" In this respect it's a matter of morals and livelihood. On the Convention of Human Rights, Article 8: Right to respect for Private and family Life ('protection of health and morals') relates to Article 17 Prohibition of Abuse of Rights ('destruction of any of the rights and freedoms').

Reading through our various stories, a lot of us are going to find it very difficult or impossible to recover from this mess by means other than 100% return of savings. Besides losing our savings, we're losing the security and protection that they offer - I refer to them as my 'life-line' - but this merely brings words to the effect 'very sorry for what you must be going through, etc'., as though the 'felt' consequences can only be met by sympathy. Possibly, and this would be a question which would need to be debated by more clever minds on this forum, we could, or could also, approach the European Court of Human Rights on the basis of the effect of the bank's closure on 'health and morals'. The physical and material impingement we are suffering and can expect to continue to suffer would be allied with the threat to emotional and psychological health, and we know of course, who the action would be brought against!

(Just another thought!)

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Human rights

  • paul.mariotti
  • 22/10/08 31/05/09
  • unspecified
  • Offline
  • Sat, 01/11/2008 - 14:06

I have just sent an email to Jeremy McBride, professor of Law at the University of Birmingham, who is the UK member of the "Network of fundamental rights experts - European Commission".

The content of the email is largely from the position paper on the site, customized to reflect the particular position of my wife and myself.

It would probably be useful if other members of this forum sent emails to j [dot] mcbride(?)bham [dot] ac [dot] uk
in order to publicize our plight at European level.
Here is the email:
Dear Sir,
We would like to inform you of what we believe is a serious infringement of our human rights by the government of the United Kingdom.

The summary of our problem is as follows:
1. Kaupthing Singer and Friedlander (KSF) Isle of Man (IOM) is an Isle of Man based subsidiary of Kaupthing HF, based in Iceland.
2. KSF IOM has many customers, including many UK residents currently overseas. These customers are not tax evaders. Many people have banked with KSF IOM only because they are refused the possibility of opening onshore UK accounts. In particular, both my wife and I have been unable to hold accounts, deposits and credit cards with UK banks and building societies after my retirement, when we moved to our house in France. We decided then to place much of our money in an account with the IOM branch of a building society, whose operations were subsequently purchased by KSF IOM. Naturally, we have paid tax on all earned interest in our annual returns to the French government.
3. On October 6th, worried by rumors of problems with the Icelandic bank Landesbanki, we decided to close our KSF IOM account and transfer our money to another bank; we spoke by telephone with a customer service representative, who took our request but warned us that the transfer would not be made until the following day.
4. That same day, the UK government instructed UK banks not to process any transfers originating with Icelandic banks.
5. On 7th October 2008, the UK government forced KSF UK into administration as it thought the bank could not comply with FSA requirements, and transferred most deposits from KSF’s UK internet arm “Kaupthing Edge” to Dutch bank ING’s Direct banking operation. At the time KSF IOM had 60% of its depositor’s funds with Kaupthing Edge; this created a real and immediate liquidity problem at KSF IOM. Kaupthing hf, itself suffering liquidity issues, reneged on the Parental Guarantee given to the Manx government and refused a transfer of funds to help KSF IOM.
6. On 8th October 2008, Isle of Man Financial Supervision Commission authorities held a meeting with the board of KSF IOM. Together, they agreed to suspend KSF IOM’s banking license with immediate effect, and appoint a “liquidator provisionally”, Mike Simpson of PriceWaterhouseCoopers.
Subsequent updates from the “liquidator provisional” have revealed that KSF IOM held £840m GBP worth of deposits. Of this, approximately £105m was held on the Isle of Man itself with various other institutions. However, the bulk of this money, some £550-600m (or £557m to use a figure recently quoted in the Financial Times) was held in KSF UK’s London office. This amount, representing the hard-earned savings of some 8000 depositors, was seized by the UK government when they placed KSF UK under administration..
This directly led to KSF IOM being put into administration, as the bank clearly did not have sufficient liquidity left to meet depositors withdrawals. My wife and I considers the UK government’s actions heavy handed, as without this intervention KSF IOM would have been able to continue normally. Until recently, both Kaupthing and Landesbanki (the two biggest banks in Iceland) enjoyed high credit ratings well above the likes of Bradford&Bingley and Alliance&Leceister. Furthermore, KSF IOM had little if any direct exposure to sub-prime mortgages, hence the bank was in a strong position.
Since the start of this crisis, further details have emerged. It is now clear that the UK Financial Services Authority was concerned about the state of the Icelandic economy and indeed the UK Government had concerns since March 2008. Recognizing that KSF IOM was directly owned by Kaupthing HF in Iceland, and the possible risk of the bank’s assets being used to guarantee domestic Icelandic deposits, the Financial Services Authority advised the Isle of Man’s Financial Supervision Commission to secure deposits by “up-streaming” them to KSF UK in London, where they were eventually seized by the UK Government.
An administrator from Ernst & Young is now managing KSF UK’s assets. The administrator’s terms of reference are “sealed”—that is, they are confidential. Mike Simpson, the KSF IOM “liquidator provisionally” has described this as “without precedent”. The secrecy around the UK government’s actions has only increased our frustration and concern..
We are now in a position where we have lost a large portion of our life savings, and the income they were providing.While the IOM has a scheme (recently upgraded by its government) to compensate depositors in the case of a bank’s closure, the scheme will only cover a part of our savings and, being funded largely by voluntary contributions from the island’s banks, will only pay out over a period of time that might even be several years.
My wife and I feel that our human rights have been and are being severely infringed, that our property has been seized without justification or thought as to the likely consequences for us and for the other 8000 depositors of KSF IOM (most of which are non-resident UK citizens) that share our problem.
We also feel that the UK government will use this money (part of the £557m belonging to KSF IOM deposited with KSF UK) to reduce its commitment to reimburse UK residents that had money in the UK arm of Kaupthing HF, and as a consequence discriminate gravely in favor of its UK voters.
We would welcome your opinion as to the likelihood of the EU supporting us in our fight to try and recover our money, and of which steps would be necessary in order to do so.

Thank you in advance.


further to 'human rights'

  • Anonymous
  • Offline
  • Sat, 01/11/2008 - 15:30

Thanks paul. mariotti, I've just sent something similar myself.


Very true

  • bellyup
  • 10/10/08 09/01/10
  • a depositor
  • Offline
  • Sat, 01/11/2008 - 08:45

I am sure there must be a case for this somewhere.
If you are a murderer you still have the right to family life so prudent savers must be in with a chance.
However there is always the 'Mandy' factor to consider- those who revel in the misfortunes of others and say its all our own fault. It'scommon practice in today's culture to lay the blame on the victim.


Good idea

  • dclf1947
  • 10/10/08 31/08/09
  • a depositor
  • Offline
  • Sat, 01/11/2008 - 03:03

I have been thinking along these lines too as a last resort. There is no doubt that morally we have been abused in a very big way. If the law allows this it should be challenged. I would be Interested to see the comments from legal people who understand these things


European Court of Human Rights

  • barrie stevens
  • 11/10/08 31/05/09
  • unspecified
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  • Sat, 01/11/2008 - 08:35

I have done a case for the European Court of Human Rights on an Isle of Man issue and had to make myself a self-taught "expert" by buying the law books and reading up in Tynwald Library.

I have posted two complex postings somewhere on this lot but they may not be paragraphed. (I tried on one but it all collapsed!)

It is long-winded because it is a complex topic and I suggest you download and then cut it about but it is all "horse's mouth"..

I suggest you save all my detailed work here on the website and then re-work it for reference as it is the product of 20 year's close observation and co-operation with a well known local media character and other personages.

I swotted up in Tynwald Library and the IOM newspapers took many, many letters on this subject from me. I also did two or three radio current affairs programmes on Manx Radio on the matter at crucial moments. ie Sunday Opinion like the one Allan Bell was on recently.

It is the First Protocol and Article 14 you want to look at.

The UK is the High contracting Party responsible for the Isle of Man before the Council of Europe.

In other words you take on the UK whether in the UK or from the Isle of Man!.

Essex University does free cases as the lecturers are also barristers and they do it for academic reasons for the fees paid by the European Court of Human Rights to applicants on legal aid.

You can get Legal Aid from Strasbourg if you likely qualify for legal aid at home.

The First Protocol deals with non-governmental/state interference with peaceful right to property and possessions..

The drawback is that you first have to exhaust local remedies ie do all that is possible through local Manx or UK courts. This will be the UK first line of defence.

You also have possibly mixed or varied jurisdictions?

It is the European Court of Human Rights (ECHR) that decides whether or not you have exhausted local remedies (Ogur v Turkey 1999).

Since the European Convention on Human Rights was imported into domestic law via the UK and IOM Human Rights Acts Strasbourg pays greater respect to the supremacy, relevance and competancy of domestic law and courts and is likely to be more insistent on exhausting local remedies.

Another fallacy is that the European Court of Human Rights (ECHR) is some sort of supreme court for the EU. This is not so. It is the court for the Council of Europe not the European Council. (the EU).

The Council of Europe has non-EU members and was established after WW 2 for moral reasons. The UK drew up most of the paperwork.

The ECHR is not actually and EU organisation though members and aspiring members are expected to follow the Human Rights Convention (HRC).

The ECHR will not get your money back from the UK or pay compensation. The ECHR can only decide if your convention rights have been infringed. ie First Protocol and Article 14 in this instance.

It will then possibly pay token damages and costs if you win based on the value of that right as a moral issue.

Awards from the ECHR are about £5,000t-£40,000 plus costs. You do not pay costs to the UK if you lose but taking on the UK is some challenge but it has been done.

Convention rights are fundamental but most are not absolute.

The UK has a margin of appreciation to vary from the HRC but such variance must be proportionate ie means justifying the ends and vice versa. Such variance must also be done so as fulfil proven local (UK) needs and requirements.

In the case of the First Protocol the UK is allowed to interfere with your right to the peaceful enjoyment of property and possessions for the public good, for the enforcement and collection of taxes and to uphold the rights and freedoms of others.....A big get out of jail free card in most instances and especially the ant-terrorism laws.

This would be their first stop if you tried to exhaust local remedies by launching a human rights case in the domestic courts and likewise at Strasbourg.

You can go direct to the ECHR without exhausting local remedies and even as priority case if you can show that it is futile or impossible to exhaust local remedies in the circumstances. (Ogur v Turkey 1999).

Any application made now will if accepted obtain a Provisional List number. You can get the forms and information pack from the Council of Europe so see their website.

It is free at this stage and so thousands of you can swamp the ECHR with Provisional List applications against the UK.

The trouble is that all you win at Strasbourg (ECHR) is a moral victory.

Strasbourg judges the HRC in the light of evolving social and moral attitudes. ie human rights!

Victory at Strasbourg can change laws ie Gays/Sex change/birching etc and be influential in a major case for recompense in the higher UK courts but it has now power as such over the UK Government because the Convention is just that. It is a Convention! It is not an EU Court and does not do "Directives".

Before an HRC case starts the UK undertakes to accept the action and to be bound by the ECHR decision that is all. It can technically refuse to play ball.

Your point above about Article 8 is valid as an adjunct but from all the thousands of cases I have been forced to read up on it is only worth a go!

Article 8 has had a very wide interpretation of late and some surprising results viz a viz the impact on extended families and so Protocol One, Article 14, and Article 8 might spread the load.

Article 14 does not say that you will not suffer discrimination, it says you must not not be discriminated in terms of Convention rights ie discrimination on the grounds of ethnic origin, race, sex, religion, national origin, politics etc.

The UK under Article Two pledges to uphold the HRC rights of all those within its jurisdiction.

How many of you are in the UK jurisdiction? Article 14 refers as above.

Overall, a human rights action can now and usually must first be taken to the domestic courts and this counts as exhausting local remedies save for the principles of Ogur v Turkey 1999 as above. (See ECHR database)

Personally, as an outsider here, I think that in both human rights and in statute law the UK will make out a good case for claiming that it has a good case for seizing and even keeping the funds placed into its hands by the Isle of Man FSC. But that does not mean that it will not arrange some sort of refund in the future.

The way I see it the money in transit is yours and the UK has no title so that may yet come bacj as your title was attached to the instrument of transfer.

But once it was placed in the UK KSF bank, and the IOM operation not being part of the UK group as a whole, then the title in those funds passed to the London bank/company by default and it then held the title which title was thus seized or frozen by the UK.

This may justify a UK case under a Protocol One "get out" ie justifiable interference of the State with your human rights to property for "the enforcement and collection of taxes and secuding the rights and freedoms of others" ie using the money to pay back UK victims and losers only.

Many of you have raised this fear that your money may be so seized and used!

It is a moot point but needs a lawyer as some observers state that KSF IOM LTD Funds sent to UK were not frozen but seized or as I would say effectively liened.

I will never accept, knowing the Isle of Man as I think I do, that there has not been a degree of co-operation with London on the matter as that is how the Island is run behind the arras.

I think that any compensatory action is local on the Isle of Man because, if the UK can kick it into the long grass by way of statute law and counter human rights arguments as above, then you are left with the fact that the Isle of Man prima facie gave up direct protection of the money and ordered it out of jurisdiction to the UK...after consultation with London it seems?

This and the question as to whose authority and influence, together with loss and consequential loss, is the big issue....and now I am out of my depth. UK or Isle of Man to blame?

Now all line up to insult me, berate me, tell me it is all attention seeking and conspiracy and all the other tired old comments.

After all, it is I who has been observing writing and broadcasting and getting into print on Isle of Man issues for 20 years.

I apologise for the long item but is takes a lot of words to explain and I have done your work for you...I have tried to paragraph let us see if it works?


Article 14

  • pwakeham
  • 20/10/08 31/05/09
  • unspecified
  • Offline
  • Wed, 05/11/2008 - 17:35

What's your view on an action under Article 14 on grounds that both Governments - Icelandic and UK - have positively discriminated in favour of their own citizens against the rights of others.

I am having this point checked out by a Swiss Human Rights expert but your opinion would be interesting.


Human Rights Typographical error above

  • barrie stevens
  • 11/10/08 31/05/09
  • unspecified
  • Offline
  • Sat, 01/11/2008 - 08:40

Above should say "no power" not "now power" ie European Court of Human Rights has no direct power over UK but by convention judgements are observed once the European Convention on Human Rights has been imported into domestic law and tends then to hold sway.


Human Rights as Above

  • barrie stevens
  • 11/10/08 31/05/09
  • unspecified
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  • Sat, 01/11/2008 - 08:56

Typos again! Trying to write direct on to website too fast...I mean above that the money in transit had your title to it and the UK cannot seize that....

But money sent en bloc from KSF IOM LTD to KSF London, and which was not part of the UK group as such as the UK maintains, did not have your title individually attached and this and title to the lump-sum funds arguably passed by default to the London KSF and was thus seized....

Of course it needs a lawyer and not a lay observer like me!

Surprisingly, I came across someone here with me in the UK (ie Chelmsford and a daily City commuter) who worked with KSF in both IOM and London who knew the situation and pointed out cynically that "possession is nine points of the law!"


formidible reply

  • Anonymous
  • Offline
  • Sat, 01/11/2008 - 09:48

in both it's conveyed knowledge and message.

I'm just wondering, however, if we end up in the throws of a long drawn-out legal battle, a ECHR application in tandem may keep or make the matter more newsworthy. As you say: 'The trouble is that all you win at Strasbourg (ECHR) is a moral victory', but even while pending outcome only, it may cause HMG some embarrassment. Of course, it would depend for how long we continue to keep the matter in the media's eye. You say that usually one has to exhaust all domestic channels first, but can both approaches coincide?


But which section of the Human Rights Act (1998)?

  • VikingRaider
  • 10/10/08 31/05/09
  • unspecified
  • Offline
  • Sat, 01/11/2008 - 17:19

I posted this over at the General discussions forum to prompt debate on using the HRA provisions but this may be the best place for the following exchange between HM Treasury and yours truly.

HM Treasury Standard pdf letter; A Human Rights Act Angle?
Having just received the following from HM Treasury (correspondence included below) which, no doubt, is familiar to many, it struck me that there may be a remedy in Protocol 1 Article 1 (the right to peaceful enjoyment of one's possessions) in the European Convention on Human Rights as enacted in British law by the Human Rights Act (1998) which states;

'Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties'.
Dear Sir/Madam

I learned today that Kaupthing Singer and Friedlander (Isle of Man) Limted, (KSFIoM) with which I have savings, has requested the Douglas authorities to wind up its affairs on the island. Her Majesty's Government (HMG) in the United Kingdom possesses international juridical personality with respect to the Isle of Man and is therefore responsible for cases of international law. Consequently, I am requesting HMG to include KSFIoM depositors in any legal actions with respect to Kaupthing hf and/or the Government of Iceland.
When KSFIoM purchased the banking business of Derbyshire Offshore Limited, it was required to accept an irrevocable and binding undertaking to guarantee depositors' funds that Derbyshire Offshore Limited had maintained, and a memorandum of understanding to this effect, including the irrevocable guarantee to depositors, was lodged with the Isle of Man Government. I include a copy below sent to me by Derbyshire Offshore Limited.

"(ii) The reference to the Derbyshire Building society having given an irrevocable and binding undertaking to ensure that, while Derbyshire Offshore remains its subsidiary, it will at all time be able to discharge its financial obligations as they fall due will no longer apply but will be replaced by reference to Kaupthing hf having given an irrevocable and binding undertaking to ensure that, while Kaupthing, Singer and Friedlander (Isle of Man) Limited remains its subsidiary, it will at all times be able to discharge its financial obligations as they fall due".

I believe this is a legally binding guarantee and as HMG is responsible for the international affairs of the Isle of Man, I would be grateful if you would include depositors with KSFIoM in your legal actions to recover moneys owed in the United Kingdom.

Yours faithfully,
Dr. X

HM Treasury Response;

Dear Sir/Madam
Re: Kaupthing Singer and Friedlander Isle of Man.
Thank you for your recent enquiry regarding Kaupthing Singer and Friedlander Isle of Man. We have received a large number of enquiries in recent days and so are not able to provide a tailored response to you at this time. I hope that the information below is helpful and answers the questions you have raised.
The problem with Icelandic banks did not originate in the UK, but within the Icelandic banking system. While the Government understand many people have been affected by the failure of Icelandic banks, oversight of Kaupthing Singer and Friedlander’s Isle of Man affiliate is the responsibility of the Isle of Man’s regulator. This company is not a subsidiary of Kaupthing Singer & Friedlander in the UK, but of an Icelandic company in the Kaupthing group. As such it was the responsibility of the Isle of Man’s regulator to assess how the failure of the parent company in Iceland would impact on the Isle of Man company and take the appropriate action. However, ultimately this was a failure that started in Iceland and ultimate responsibility for banks in Iceland rests with the Icelandic authorities.
In 2007, Kaupthing Singer and Friedlander Isle of Man entered into an agreement to acquire Derbyshire Offshore from Derbyshire Building Society. This sale followed a strategic review by Derbyshire Building Society which concluded that Derbyshire Offshore was no longer central to its strategic direction or funding requirements. However, accounts with Derbyshire Building Society in the UK itself were not affected by the sale and therefore remain unaffected by Kaupthing Singer and Friedlander Isle of Man going into insolvency.
You should note that the arrangements for depositors in banks in the Isle of Man are a matter for the Government of the Isle of Man. Deposits with Kaupthing Singer and Friedlander Isle of Man will be subject to the Isle of Man Deposit Compensation Scheme (DCS). It is the Government’s understanding that depositors, including depositors of Kaupthing Singer and Friedlander Isle of Man, who have money in bank accounts in the Isle of Man will be compensated up to
£50,000 under the Isle of Man DCS. Further information about the DCS, and eligibility for the scheme, is available on the Isle of Man Government’s website at: www.gov.im/fsc/investor/dep_comp.xml

Reponse to HM Treasury at CEU [dot] Enquiries(?)hm-treasury [dot] x [dot] gsi [dot] gov [dot] uk

Thankyou for your standardised pdf letter. However, as I am a United Kingdom citizen and seeking international representation for recovery of my funds in the nationalised Kaupthing hf before the Government of Iceland, I would be grateful if you or the relevant ministry will explain to me how you plan to asssist me in recovering my savings as guaranteed by the Government of Iceland. Failing this, please indicate the relevant British or EU body to which I can appeal to seek redress.

Yours faithfully,
Dr. X

If I am not mistaken, HMG are damned if they do anything and deamned if they don't. If they represent KSFIoM savers, they have accepted a priori responsibility in international law and thus open the door to a protocol 1 article 1 claim, actionable because the funds are in the United Kingdom. If they fail to respond, their culpability in depriving us of the peaceful enjoyment of possessions (again because the funds are in the United Kingdom) still opens them to a protocol 1 article 1 claim. Hanged by their own pertard, perhaps?


reply to 'But which scetion of Human Rights'

  • Anonymous
  • Offline
  • Sat, 01/11/2008 - 17:56

I emailed this quote from your message across to the London team, suggesting that they might formalize an approach to the Press on the theme of posible contravention of human rights:

European Convention on Human Rights as enacted in British law by the Human Rights Act (1998):

'Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties'.

Perhaps HMG having to justify this one: 'The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest...' would draw out an answer as to why the assets were removed in the first place.


the reason given for seizing the assets of Kaupthing UK

  • conned
  • 13/10/08 n/a (free)
  • a depositor
  • Offline
  • Sat, 01/11/2008 - 20:03

HMG seized the assets of depositors with Kaupthing UK to protect those assets FOR the depositors.

As we now know the assets with Kaupthing UK included money deposited in Kaupthing IOM. The principle of 'protecting the assets of depositors' must therefore include those assets belonging to KSF IOM.

All the Treasury need do is return them to the provisional liquidator since those assets were neither seized because they were unlawfully acquired nor because they were held in any default of lawfully required payment of withheld taxes.

Thus I am of the view that the EU Court of Human Rights would find in favour of the depositors in KSF IOM