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FOURTH
SECTION
CASE OF
YOUNG v. THE UNITED KINGDOM
(Application
no. 60682/00)
JUDGMENT
STRASBOURG
16
January 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Young v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr M.
Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L.
Garlicki, judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 60682/00) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Ms Anna Young (“the applicant”), on 4 July
2000.
- The
applicant, who was granted legal aid, was represented by Mr Christian
Fisher Khan, a firm of solicitors practising in London. The United
Kingdom Government (“the Government”) were represented by
their Agents, Mr C.A. Whomersley and, subsequently, Mr J. Grainger,
both of the Foreign and Commonwealth Office.
- The
applicant’s admissible complaints concerned the compliance with
Article 6 of prison adjudication proceedings against her.
- By
a decision of 11 October 2005, a Chamber of the Fourth Section of the
Court declared the application partly admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Chamber decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lives in London. In or around late
1999 the applicant breached an earlier probation order (concerning a
charge of deception) and was sentenced to six months’
imprisonment. It was her first time in prison.
- Her
term of imprisonment began in November 1999. She was accorded an
unconditional release date of 23 January 2000.
A. The applicant’s disability
- The
applicant suffered from cerebral palsy, a disorder of the central
nervous system which can inhibit voluntary muscle control. She used a
wheelchair and could only walk a few steps with assistance. She did
not have voluntary control of her bladder meaning that on occasion
she either could not urinate for several hours or she urinated
uncontrollably and required medication to restrain this. The
condition did not affect her intelligence but rather her ability to
process information so that she required explanations in plain
language and sufficient time for full comprehension.
- A
short medical report from a general practitioner dated 15 August 2000
noted that the applicant was a patient of the relevant practice and
that her condition could have affected her ability to produce a urine
sample on demand as voluntary control of the nervous system is always
affected by cerebral palsy. While he suggested obtaining a
neurologist’s report on these matters, the applicant stated
that she could not afford to obtain one.
- The
prison psychotherapist’s report of 31 January 2000 noted that
the applicant had been referred in December 1999 given her distress
and difficulties in coping with her imprisonment. It noted as
follows:
“Largely confined to a wheelchair, [the applicant]
manifests obvious physical symptoms of cerebral palsy as well as
somewhat less obvious mental ones. [The applicant] possesses an
excellent vocabulary and a reasonably well-developed capacity to
think logically that places her well in the highest range of mental
functioning for those who have the condition from which she suffers.
Thus it seems that she often strikes those who meet her as an
individual with a normal range of mental functioning but a difficult
personality.
In fact, [the applicant] experiences problems dealing
with any sort of symbolism in language: she is openly vocal about her
distaste for what she calls slang. Any explanation given to her needs
to be couched in concrete terms devoid of metaphor or simile. Often
it may be advisable or necessary to write down an explanation so that
she may study it at her leisure in order to take it in fully and
remember it. When this procedure is followed, she proves well able to
make use of information or advice.
From [the applicant’s] standpoint, these features
of her mental functioning often make it difficult for her to think
things through completely and thus to envision what the consequences
of her actions may be. From the view point of those who deal with
her, it often may seem that she is being difficult or uncooperative
when it is in reality the case that she simply has not fully grasped
the nuances of the subject at hand.
[The applicant’s] life circumstances seem to have
been troubled and unhappy. She has felt it necessary to fight
ferociously to consolidate and maintain her independence. Thus the
stay in <prison> appears to have been a sobering experience for
her. It seems rather graphically to have brought home to her the
consequences of some of her own actions – actions for which she
previously had been unable to envisage consequences.
It is difficult for [the applicant] to trust anyone
completely, as she feels herself to have been badly let down by key
figures in her life (including her mother, foster carers et al). Yet,
in a relationship which [the applicant] experiences as one of
confidence and caring, she is able to show herself as a warm, even
endearing individual.”
- The
applicant was detained in the medical wing of the prison since the
normal prison cells were not wheelchair accessible.
B. Mandatory drug testing (“MDT”)
- At
about 11.20am on 6 January 2000 a female prison officer asked the
applicant to leave her education classes. They were then met by two
other female prison officers. One of them asked the applicant if she
had heard about MDT. The applicant replied that she had not and she
was informed that it was mandatory drug testing. One of the officers
requested the applicant to provide a urine sample immediately. The
applicant alleged that she said that she would not be able to produce
a sample: the Government did not accept this.
- She
was taken to the MDT unit, given a container and asked to provide a
specimen. While the applicant claimed that she said again that she
could not provide a urine sample, the Government maintained that she
simply refused to provide a sample. She claimed that she began to
explain why she could not provide a sample but that her explanation
was brushed aside. She was offered a cup of water, which she
declined. She maintained that this was because she knew that the
water would not assist because the problem was not whether her
bladder was full or not but whether she had the motor control to
provide a specimen on demand and because she was concerned as to
whether the water was fresh.
- The
applicant was taken to her cell by the officers and she was told that
she could provide her sample there. A female officer remained in the
cell with her and the applicant felt distressed by this. She claimed
that, at about midday, she reiterated that she could not urinate. She
submitted that the prison officer appeared irritated and informed her
that she was going to put that down as a refusal which could result
in additional days’ detention. The Government claimed that she
refused once again to provide a sample.
- She
claimed that the officers who dealt with her were brusque and
business-like. None of the officers asked her about her condition or
whether she would need assistance in providing the urine sample and
she was not offered the possibility of speaking confidentially with a
medical officer or a structured manner of providing the sample over
several hours. She admitted, however, that she did not explain to
them that she could not urinate as a result of her disability. She
alleged that she did inform the officers that she was menstruating
(the Government disputed this) but, in any event, she accepted that
she did not use her menstruation as an excuse for not providing a
urine sample.
C. The adjudication proceedings
- On
7 January 2000, at approximately 7.00-7.30 a.m., a male officer came
into the applicant’s cell and read an “official-sounding”
paper about “a refusal”. The applicant was asked to sign
it but refused to do so. She maintained that this was because she had
just woken up and did not understand what was happening. The
paperwork was left in her cell. This paperwork appears to have been a
notice of report, which informed the applicant that she had been
placed on report for the alleged offence of disobeying a lawful order
to provide a urine sample.
- Later
that day, she was sent to see the Governor when it was explained to
her that she was being “put on report”. There were two
officers in the room at the same time. Her account was that, feeling
intimidated and not understanding the jargon they were using, she
asked if she could have someone with her. The Governor refused,
stating that this would only be allowed for someone with severe
learning difficulties. The Governor did not ask her if there were any
medical reasons why she should be assisted. The Government disputed
the applicant’s account of this meeting.
- The
matter was adjourned to the following week, to allow the relevant
prison officer to attend to give evidence. In the meantime, the
applicant was seen by a medical officer who certified her as fit to
take part in the hearing. She did not inform the medical officer
either that her disability had prevented her from providing a urine
sample, explaining that this was because the medical officer never
asked.
- On
11 January 2000 the applicant appeared again before the Governor. The
Government submitted the record of the adjudication hearing which was
filled out by the Governor at the hearing. Question 7 on Part 2 of
the form enquires: “Do you want any additional help at this
hearing? (If yes, explain the possibilities of assistance by a legal
friend or legal representative)”. The Governor had ticked the
box saying “No”. The applicant claimed that her request
for legal representation was refused.
- The
applicant submitted that she was not asked any questions about her
disability or whether she had problems urinating. The allegation of a
refusal to give a sample was put to her. She claimed that she tried
to explain as best she could and that the Governor indicated that
most people could provide a sample when asked and he noted that she
had refused water. She accepted that she did not inform the Governor
during the adjudication hearing that her disability had prevented her
from providing a urine sample. The Governor found the charge of
disobeying a lawful order to have been proven and sentenced the
applicant to 14 additional days’ detention. She was informed
that she could appeal.
- With
the assistance of the prison chaplain, she obtained and completed on
12 January 2000 a complaint form. She noted in the form that she had
not represented herself as well as she wished and would have
benefited from a prepared statement. She indicated that she had
bladder problems, exacerbated by the stress of her imprisonment and
she disclosed that she had been menstruating. She indicated her
willingness to provide a urine sample and requested to be allowed the
time for which Rule 46A(7) of the Prison Rules 1964 had provided. In
an attached statement, she made it clear that she had not refused to
provide the sample but simply could not due to her disability. She
indicated that she had recently gone more than 24 hours without
urinating. She further requested some assistance in order to comply
with the prison rules as they had been drafted with able-bodied
persons in mind and did not make allowances for those with
disabilities. She expressed extreme distress at having to discuss her
bodily functions and requested that the 14 additional days’ be
withdrawn.
- On
14 January 2000 the Governor replied that he had spoken to the prison
chaplain, read the applicant’s submissions and discussed the
case with the prison service area manager, the latter of whom had
read the papers. The area manager agreed that the charge had been
proven and that the award of additional days could be reduced to 3
additional days (with no association with other prisoners for 3
nights and 7 days’ stoppages in pay). She was also to provide a
urine sample under the MDT arrangements.
- The
applicant sought legal advice. Her legal representatives could not
contact her by telephone and were offered a visit after her initial
release date. Accordingly, they made written representations by
letter dated 19 January 2000 to the Governor and to the prison
service area manager outlining the applicant’s condition, how
that had prevented her providing the sample and her distress and
embarrassment. They sought the withdrawal of the 14 additional days’
award, in default of which proceedings under the Disability
Discrimination Act 1995 would be pursued.
- The
applicant was released on 26 January 2000. In his letter of
27 January 2000 to the applicant’s representatives
(confirming a telephone conversation of 20 January 2000) the area
manager stated that, while information was received by the Governor
after the adjudication causing him to vary the sentence, that
information did not cause the Governor or the writer to consider that
the finding of guilt was flawed or should be quashed. He was further
satisfied that the adjudication was conducted in a fair and proper
manner. He noted that the applicant had not explained her
difficulties to the officers involved in the test process, nor
availed herself of the opportunity subsequently to talk through the
issues with the Governor. That letter indicated that a medical
officer had informed the Governor that she had been fit to appear and
had made no comment to the Governor that she was unable to comply
with an order to provide a sample.
- On
11 July 2000 the applicant’s representatives complained to the
Home Secretary about the prison adjudication matter. They received an
acknowledgement dated 8 August 2000.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Forfeiture of remission and awards of additional days
- The
Court refers to its outline of the relevant domestic law and practice
in the case of Ezeh and Connors v. the United Kingdom ([GC],
nos. 39665/98 and 40086/98, §§ 31-62).
B. Mandatory Drugs’ Testing (“MDT”)
- MDT
is permitted by section 16A(1) of the Prison Act 1952 (as amended in
1994). Section 16A(2) allows the request for a sample of any other
description specified in the authorisation, not being an intimate
sample, instead of or in addition to a urine sample.
- Rule
50 of the Prison Rules 1999 provides as follows:
“(1) This rule applies where an officer, acting
under the powers conferred by section 16A of the Prison Act 1952
(power to test prisoners for drugs), requires a prisoner to provide a
sample for the purpose of ascertaining whether he has any controlled
drug in his body.
(2) In this rule “sample” means a sample of
urine or any other description of sample specified in the
authorisation by the governor for the purposes of section 16A of the
Prison Act 1952.
(3) When requiring a prisoner to provide a sample, an
officer shall, so far as is reasonably practicable, inform the
prisoner:
(a) that he is being required to provide a sample in
accordance with section 16A of the Prison Act 1952; and
(b) that a refusal to provide a sample may lead to
disciplinary proceedings being brought against him.
(4) An officer shall require a prisoner to provide a
fresh sample, free from any adulteration.
(5) An officer requiring a sample shall make such
arrangements and give the prisoner such instructions for its
provision as may be reasonably necessary in order to prevent or
detect its adulteration or falsification.
(6) A prisoner who is required to provide a sample may
be kept apart from other prisoners for a period not exceeding one
hour to enable arrangements to be made for the provision of the
sample.
(7) A prisoner who is unable to provide a sample of
urine when required to do so may be kept apart from other prisoners
until he has provided the required sample, save that a prisoner may
not be kept apart under this paragraph for a period of more than 5
hours.
(8) A prisoner required to provide a sample of urine
shall be afforded such degree of privacy for the purposes of
providing the sample as may be compatible with the need to prevent or
detect any adulteration or falsification of the sample; in particular
a prisoner shall not be required to provide such a sample in the
sight of a person of the opposite sex.”
- Rule
51(22) of the Prison Rules 1999 provides that it is an offence
against prison discipline to disobey a lawful order.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant contended that the adjudication proceedings had violated
Article 6 §§ 1 and 3 in numerous respects.
A. Applicability of Article 6 of the Convention
- The
applicant argued that, in the light of the above-cited judgment in
Ezeh and Connors v. the United Kingdom, Article 6 applied to
her adjudication proceedings. Prior to the admissibility of the case,
the Government accepted that Article 6 applied to the adjudication
proceedings and after admissibility made no further comment.
- The
Court notes that the starting-point, for the assessment of the
applicability of the criminal aspect of Article 6 of the Convention
to the present proceedings, is the criteria outlined at paragraph 82
of the judgment in Engel and Others v. the Netherlands
(judgment of 8 June 1976, Series A no. 22):
“...[I]t is first necessary to know whether the
provision(s) defining the offence charged belong, according to the
legal system of the respondent State, to criminal law, disciplinary
law or both concurrently. This however provides no more than a
starting point. The indications so afforded have only a formal and
relative value and must be examined in the light of the common
denominator of the respective legislation of the various Contracting
States.
The very nature of the offence is a factor of greater
import. ...
However, supervision by the Court does not stop there.
Such supervision would generally prove to be illusory if it did not
also take into consideration the degree of severity of the penalty
that the person concerned risks incurring.”
- In its more recent judgment in the case of Ezeh and
Connors, the Court clarified as follows:
86. In addition, it is the Court’s established
jurisprudence that the second and third criteria laid down in Engel
are alternative and not necessarily cumulative: for Article 6 to be
held applicable, it suffices that the offence in question is by its
nature to be regarded as “criminal” from the point of
view of the Convention, or that the offence made the person liable to
a sanction which, by its nature and degree of severity, belongs in
general to the “criminal” sphere .... This does not
exclude that a cumulative approach may be adopted where separate
analysis of each criterion does not make it possible to reach a clear
conclusion as to the existence of a criminal charge ....
...
120. The nature and severity of the penalty which was
“liable to be imposed” on the applicants ... are
determined by reference to the maximum potential penalty for which
the relevant law provides ....
The actual penalty imposed is relevant to the
determination ... but it cannot diminish the importance of what was
initially at stake (see Engel and Others, cited above, p. 36,
§ 85, together with Demicoli, Garyfallou AEBE and
Weber, loc. cit.).”
- In
its Ezeh and Connors judgment, the Court referred specifically
to the following extract from paragraph 82 of the Engel
judgment:
“In a society subscribing to the rule of law,
there belong to the ‘criminal’ sphere deprivations of
liberty liable to be imposed as a punishment, except those which by
their nature, duration or manner of execution cannot be appreciably
detrimental. The seriousness of what is at stake, the traditions of
the Contracting States and the importance attached by the Convention
to respect for the physical liberty of the person all require that
this should be so.”
and
went on to conclude (at paragraph 126) that:
“Accordingly, given the deprivations of liberty
liable to be and actually imposed on the present applicants, there is
a presumption that the charges against them were criminal within the
meaning of Article 6, a presumption which could be rebutted entirely
exceptionally, and only if those deprivations of liberty could not be
considered “appreciably detrimental” given their nature,
duration or manner of execution.”
- The
offence at issue in the present case (failure to obey a lawful order)
was, in the Court’s view, disciplinary in law and in nature. It
was one of the listed prison disciplinary offences (see paragraph 29
above) which could only be prosecuted by the prison services. Its aim
was to maintain discipline within the prison and there was no
apparent civilian criminal equivalent (Campbell and Fell v. the
United Kingdom, judgment of 28 June 1984, Series A no. 80, §
71).
- However,
the Engel criteria being alternative and not necessarily
cumulative, the “criminal” nature of the relevant
“offence” could, in principle, be determined solely on
the basis of the nature and severity of the sanction.
- It
was not disputed, and the Court has already found, that the
additional days’ detention awarded amounted to a deprivation of
liberty (the above-cited Ezeh and Connors case, §§
124-125). Since a deprivation of liberty was liable to be and was
actually imposed on the applicant, there was a presumption that the
charge against her was “criminal”, a presumption which
could be rebutted entirely exceptionally and only if her deprivation
of liberty could not be considered “appreciably detrimental”
given its nature, duration or manner of execution (the above-cited
Ezeh and Connors judgment, at § 126). Having initially
maintained that she had spent 3 additional days in prison, she
indicated, without more and for the first time, in her just
satisfaction submissions that she had spent 5 additional days in
prison: however, she has not explained or substantiated this change
in her submissions or reacted to the Government’s challenge to
this later factual submission. The Court finds that the applicant was
awarded and served 3 additional days’ detention.
- The
Court considers that the deprivation of liberty which was liable to
be (42 days), and which actually was (3 days), imposed on the
applicant cannot be regarded as sufficiently unimportant or
inconsequential as to displace the presumption as to the criminal
nature of the charge against her.
- It
finds that the applicant was charged with a “criminal offence”
within the meaning of Article 6 which provision applies therefore to
her complaints.
B. Waiver
- The
parties disputed whether the applicant had refused legal
representation at the adjudication hearing and, therefore, whether
she had waived any rights in that respect under Article 6 of the
Convention. However, the Court does not consider it is necessary to
resolve this factual dispute because, even assuming the Government’s
account to be factually correct, it is not considered that any such
waiver could be considered valid. In this respect, it is recalled
that a waiver of a right guaranteed by the Convention - in so far as
it is permissible - must not run counter to any important public
interest, must be established in an unequivocal manner and requires
minimum guarantees commensurate to the waiver’s importance
(Håkansson and Sturesson v. Sweden judgment of
21 February 1990, Series A No. 171, § 66 and Pfeifer,
Plankl v. Austria, judgment of 25 February 1992, Series
A No. 227, § 37 and Thompson v. the United Kingdom, no.
36256/97, § 43, 15 June 2004).
- According
to the Government’s own account, the applicant was asked if she
wished to have “help” at the hearing and the record of
the adjudication indicated that, if she answered in the affirmative,
she would be informed of the assistance and legal representation
“possibilities”. There is therefore no indication she was
in fact clearly offered legal representation for the hearing as
opposed to the assistance of a friend/layperson. In addition, given
the applicable domestic law and practice (outlined in the Ezeh and
Connors judgment, §§ 59-62), any outline of the legal
presentation “possibilities”, in the event of such an
affirmative response from her, would not have indicated with any
certainty that such representation would be available. Moreover, any
choice would have been put to her at the adjudication hearing itself
at which she was unassisted. Furthermore, she would have been
required to respond to the Governor who conducted the hearing and who
was charged with maintaining prison discipline and was responsible
for the pursuit of the charges against her, for determining guilt or
innocence and for fixing her sentence. The Court does not consider
that, even accepting the Government’s submissions, the
circumstances demonstrate that any choice by the applicant as regards
legal representation could be considered unambiguous and free.
Accordingly, and in so far as such a waiver would be permissible and
not run counter to any important public interest, it is not
established to have been unequivocal and accompanied by guarantees
commensurate to its importance (the Thompson judgment, at §
44).
C. Compliance with Article 6 §§ 1 and 3
- The
applicant complained under Article 6 § 1 that the Governor was
not independent and that she was not allowed legal representation.
She also complained that she had not been informed in a language she
understood and in detail of the nature of the charge against her
(Article 6 § 3(a)); that she had not had adequate time or
facilities for the preparation of her defence (Article 6 §
3(b)); and that she had not been given legal assistance (Article 6 §
3(c)). Prior to admissibility the Government accepted that the
Governor could not be considered independent and impartial but
submitted that the applicant had waived her rights as regards legal
representation and, following admissibility, reiterated that the
applicant had been asked but declined assistance at the hearing.
- The
Court has already found in the case of Whitfield and Others v. the
United Kingdom (nos. 46387/99, 48906/99, 57410/00 and 57419/00,
§ 45, 12 April 2005, a direct application of the
above-cited Ezeh and Connors judgment) that, since Governors
were answerable to the Home Office, drafted and laid the charges
against the applicants, investigated and prosecuted those charges and
determined the applicants’ guilt or innocence together with
their sentences, it could not be said that there was any structural
independence between those charged with the roles of prosecution and
adjudication. The Court found therefore in the Whitfield and
Others case that those applicants’ doubts about the
independence and impartiality of their adjudications were objectively
justified, that their adjudications were consequently unfair and that
there had been therefore a violation of Article 6 § 1 (Cooper
v. the United Kingdom [GC], no. 48843/99, §§ 104 106,
ECHR 2003 XII, the latter citing Findlay v. the United Kingdom,
judgment of 25 February 1997, Reports of Judgments and Decisions
1997 I)). The Court in the Whitfield and Others case
also found a separate violation of Article 6 § 3(c) of the
Convention given the lack of legal representation for the applicants’
prison adjudication hearings (mainly relying on the Ezeh and
Connors judgment, cited above, at § 134, which in turn
relied on Benham v. the United Kingdom, judgment of 10
June 1996, Reports 1996-III, § 64).
- The
Court sees no reason to reach a different conclusion in the present
case from that in the Whitfield and Others case and, for the
reasons given in the above-cited Ezeh and Connors judgment,
finds that there has been a violation Article 6 § 1 as regards
the lack of independence and impartiality of the tribunal and,
consequently, fairness of the proceedings and that there has been an
additional violation of Article 6 § 3(c) of the Convention as
regards the lack of legal representation at the adjudication hearing.
- The
Court does not consider it necessary separately to examine the
applicant’s additional complaints, whether under Article 6 §§
1 or 3, concerning the fairness of those proceedings (the above-cited
Whitfield and Others judgment, at § 46).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 7,000 pounds sterling (GBP) in compensation for
pecuniary and non-pecuniary loss as well as interest at a rate of 6%.
She argued that she had established a causal link between the
violations established and a loss of real opportunity (Goddi v.
Italy, judgment of 9 April 1984, Series A no. 76, § 35;
Perks and Others v. the United Kingdom, nos. 25277/94,
25279/94, 25280/94, 25282/94, 25285/94, 28048/95, 28192/95 and
28456/95, §§ 80-81, 12 October 1979, and the above-cited
Ezeh and Connors judgment, § 112). She referred to the
award of additional days’ detention, to the loss of prison pay
and to “legal costs and expenses”. The Government
contested these claims arguing that the finding of a violation
constituted sufficient just satisfaction.
- The
Court has had regard to the letter of the area manager of 27 January
2000 in response to the applicant’s legal representatives and
does not consider that the present case demonstrates a loss of real
opportunity of the nature established in the above-cited cases of
Perks and Others or Whitfield and Others.
- Accordingly,
and as in the above-cited cases of Findlay (at §§ 85
and 88), Ezeh and Connors judgment (at §§ 141-143)
and Thompson (at §§ 51-52), the Court considers
that it is impossible to speculate as to the outcome of the
proceedings against the applicant had the violations of Article 6 §§
1 and 3(c) of the Convention not occurred.
- Accordingly,
it finds that the present judgment in itself constitutes sufficient
just satisfaction for any pecuniary and/or non-pecuniary damage
arising from the violations of Article 6 of the Convention
established.
B. Costs and expenses
- The
applicant claimed legal costs and expenses “under a Conditional
Fee Agreement” (“CFA”) in the sum of GBP 8,812.50
(inclusive of VAT) in solicitors’ fees but excluding any
success (or supplemental) fee: no invoices or further breakdown were
submitted. A total of GBP 12,619.52 in Counsel’s fees was
claimed on the basis of fee notes for approximately 55 hours of work
between June 2000 and January 2006, the charge out rates beginning at
GBP 150 per hour and rising to GBP 250 per hour in late 2005.
- The
Government considered these amounts excessive. They noted that a
number of complaints (under Articles 3, 8, 5, 13 and 14 of the
Convention) had been declared inadmissible and that much of the legal
work had been done after the delivery of the key Ezeh and Connors
judgment. They also noted that no invoices had been submitted as
regards the solicitors’ fees. They further pointed to the CFA
stating that an issue arose as to whether the expenses claimed had
actually been incurred by the applicant and they invited the Court to
consider whether, given the CFA, a discount was appropriate.
- The
Court recalls that only legal costs and expenses demonstrated to have
been actually and necessarily incurred and to be reasonable as to
quantum are recoverable under Article 41 of the Convention (Smith
and Grady v. the United Kingdom (just satisfaction), nos.
33985/96 and 33986/96, § 28, ECHR 2000-IX). It is also
recalled that CFAs may show, if they are legally enforceable, that
the sums claimed are actually payable by the applicant and the Court
must, as always, assess whether they were reasonably incurred. It
will take as a basis for its assessment, inter alia, the
information provided by the applicant in support of the claims
namely, the number of hours of work and the number of lawyers
necessitated by the case together with the hourly rates sought
(Iatridis v. Greece (just satisfaction) [GC], no. 31107/96,
§ 55, ECHR 2000 XI).
- As
to the solicitors’ fees and even noting the CFA and therefore
the absence of any drawn invoices, the applicant could clearly have
submitted an itemised costing indicating the hours worked, by which
solicitor, on what item of work and those solicitors’ hourly
rates. The applicant has provided no such details even though the
terms of Rule 60 of the Rules of Court were brought to her attention
in the Registry’s letter requesting her just satisfaction
submissions, and noting that the costs had to be itemised and some
proof furnished as to their being actually and necessarily incurred
and despite the Government’s comment on the absence of any
invoices as regards the solicitors’ fees. In such
circumstances, the Court makes no award as regards the solicitors’
costs claimed.
- As
to Counsel’s fees, the Court observes that all Counsel’s
legal work was completed after the delivery of the judgments in the
above-cited Findlay and Benham cases and over half was
completed after the delivery of the Ezeh and Connors and
Cooper judgments, the central relevance of which judgments is
evident from the Court’s reasoning at paragraphs 43 and 44
above. A number of the applicant’s complaints were also
declared inadmissible (Articles 3, 8, 13 and 14), although after they
had been communicated to the respondent Government.
- Having
regard to all the circumstances of the case, the Court awards the sum
of 3,500 euros (“EUR”) in respect of Counsel’s
fees, inclusive of any VAT which may be chargeable but less EUR 701
paid by the Council of Europe in legal aid, the final sum of EUR
2,799 to be converted into pounds sterling at the rate applicable on
the date of settlement.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 6 § 1 of the Convention in that the applicant did
not have a fair trial by an independent and impartial tribunal;
- Holds that there has been a violation of
Article 6 § 3(c) of the Convention;
- Holds that it is not necessary to examine
separately the remaining complaints under Article 6 of the
Convention;
- Holds that the findings of a violation of
Article 6 constitute in themselves sufficient just satisfaction for
any non-pecuniary damage sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,799 (two
thousand seven hundred and ninety nine euros) which is inclusive of
any VAT chargeable and which is to be converted into pounds sterling
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early J. Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Mr Maruste
is annexed to this judgment
J.C.M.
T.L.E
CONCURRING OPINION OF JUDGE MARUSTE
While
I would maintain my general position in respect of prison
disciplinary proceedings expressed in a joint dissenting opinion in
the case of Ezeh and Connors v. the United Kingdom ([GC],
nos. 39665/98 and 40086/98, ECHR 2003 X), in this particular
case I am with the majority in favour of a violation but for
different reasons. My understanding is that in this exceptional case
the authorities failed to handle what was a very specific situation
adequately and with the necessary flexibility. The physical and
mental particularity of the applicant was evident, established by
doctors and known (or at least should have been known) to the prison
staff. Under these circumstances, the rigidity in the application of
the rules was simply unnecessary.
