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You are here: BAILII >> Databases >> The Law Commission >> Damages Under the Human Rights Act (Report) [2000] EWLC 266(6) (October 2000) URL: http://www.bailii.org/ew/other/EWLC/2000/266(6).html Cite as: [2000] EWLC 266(6) |
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SECTION B: JUST SATISFACTION UNDER INDIVIDUAL ARTICLES OF THE CONVENTION
PART VI
ARTICLE BY ARTICLE ANALYSIS
1. INTRODUCTION
6.2 Generally the reasoning of the Strasbourg Court on the issue of damages is very short or non-existent, and we have simply summarised the relevant facts. Where, unusually, there is detailed discussion of this issue, particularly in cases involving the UK, we have included longer quotations. For reasons explained in Part III,[1] we have concentrated on awards for pecuniary and non-pecuniary loss, and have not included detailed discussion of costs and expenses.
2. ARTICLE 2
6.3 Article 2 protects an individual's right to life. It states that:
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
6.4 Cases involving a violation of Article 2 are rare. The few cases which do exist have come rather late in the Court's jurisprudence. The first was decided in 1995 and arose out of the killing of suspected IRA terrorists by SAS soldiers in Gibraltar.[2] Most other cases to date have arisen from recent conflicts in Turkey.[3]
6.5 In McCann v United Kingdom[4] the Court found a violation of Article 2 in relation to the killing by SAS soldiers of three members of the IRA suspected of planning a terrorist attack on Gibraltar. Although the Court held that the actions of the soldiers themselves did not constitute a violation of Article 2, the decision not to stop the suspects from entering Gibraltar, the failure to make allowances for erroneous intelligence, and the automatic use of lethal force convinced the Court that Article 2 had been breached. A claim for compensation followed in which the applicants (representative of the deceaseds' estates) sought damages at the same level as awarded under English law for unlawful killings by the state. In addition, exemplary damages were claimed, again drawing on similar English awards. The Court rejected in entirety the claim for pecuniary and nonpecuniary damage[5] because of the nature of the conduct in which the victims had been involved:
...having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar, the Court does not consider it appropriate to make an award under this head.[6]
6.7 In the cases arising out of the recent conflict in Turkey, the facts surrounding the deaths in question have often been in dispute, and the Court has found a violation of Article 2 because of the state's failure to carry out a proper investigation into the deaths, rather than finding the state actually responsible for the death. In several of the cases, a violation of Article 13[7] has been established in addition to the violation of Article 2. The following are examples.
6.8 In Kaya v Turkey,[8] the applicant was the deceased's brother, and made a claim on behalf of himself and the deceased's widow and children. He claimed that his brother was shot by security forces whilst unarmed and that afterwards a rifle was planted on his body. The Turkish Government claimed that soldiers had been fired upon and returned fire, after which the body was found with a rifle nearby. The Court did not resolve this dispute but found violations of Articles 2 and 13 due to the authorities' failure to conduct an adequate investigation into the death. It made an award of £10,000[9] to the widow and children, but no award was made to the applicant himself as the Court was not convinced of his loss.
6.9 In Yasa v Turkey,[10] the applicant alleged that he and his uncle, who subsequently died, were attacked by security forces for selling a Kurdish newspaper. As in Kaya, the Court found violations of Article 2 and Article 13 in the failure by the state to carry out an adequate investigation. It noted, however, that neither the alleged attack on the applicant and the killing of his uncle by security forces, nor "a practice of violations of the Convention", had been established. It accordingly rejected the claims based on those allegations. The nephew received £6,000 in non-pecuniary damage on an "equitable basis", but the claims for the uncle's family were rejected because they were not parties to the application.[11]
6.10 Failure to conduct a proper investigation and disproportionate use of force were the basis of the violation of Article 2 found in Güleç v Turkey.[12] In this case, the claim for compensation was brought by a father, whose son was killed during unauthorised demonstrations. He claimed 400,000 French francs (£42,790) for pecuniary loss and 100,000 French francs (£10,700) for non-pecuniary loss, as the loss of a son deprived him "of financial support and had caused him great distress". Noting that the son had died "during a violent demonstration",[13] the Strasbourg Court made an award of 50,000 French francs (£5,350) for nonpecuniary loss.
6.11 In Salman v Turkey[14] the applicant's husband was detained by security forces and subjected to torture which induced a fatal heart attack. The Strasbourg Court found that there had been a violation of Article 2 in respect of the death. The applicant submitted a claim for pecuniary loss in respect of the loss of earnings of her husband, a taxi driver, supported by detailed submissions concerning the actuarial basis of the calculation. The Strasbourg Court awarded the claim in full. She was also awarded damages of £10,000 for non-pecuniary loss.[15] The Court had regard to the awards it had made in comparable cases.
6.12 This result can be contrasted with Valikova v Bulgaria[16] another case where the applicant's partner died in police custody, and the evidence suggested that the death was the result of injuries which had been inflicted while he was in police custody. The applicant claimed damages of 39,047.55 French francs (£3,580) as pecuniary loss for the loss of her partner's earnings. However, she was unable to submit documentary evidence of his earnings (predominantly from the shadow economy) or of the likelihood of his living to the average life expectancy. The Strasbourg Court noted
that the method used by [the applicant] in calculating the loss of income for the family is far from precise. The applicant has not presented an actuarial report. The Court is therefore obliged to deal with the claim on an equitable basis.
She was awarded 8,000 new Bulgarian levs (approximately £2,536) on this basis. The Court also awarded the applicant 100,000 French francs (£9,170) for nonpecuniary loss, having regard to awards made in comparable cases.[17]
6.13 In Kiliç v Turkey[18] the Strasbourg Court considered claims for pecuniary and non-pecuniary loss made by the applicant on behalf of his brother, a Kurdish journalist murdered in the street. The pecuniary loss claimed was for the earnings his brother would have made if he had not died. The Strasbourg noted that
the applicant's brother was unmarried and had no children. It is not claimed the applicant was in any way dependent on him. This does not exclude an award of pecuniary damages being made to an applicant who has established that a close member of the family has suffered a violation of the Convention. ... In the present case however the claims for pecuniary damage relate to alleged losses accruing subsequent to the death of the applicant's brother. They do not represent losses actually incurred either by the applicant's brother before his death, or by the applicant after his death.
[The Court] has previously awarded sums as regards the deceased where it was found that there had been arbitrary detention or torture before his disappearance or death, such sums to be held for the person's heirs. It also awarded the applicant £2,500 in respect of his own non-pecuniary loss.[19]
3. ARTICLE 3
6.15 Article 3 of the European Convention prohibits torture. It states that:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
(1) Threatened violations
6.17 For example, in Soering v United Kingdom,[20] the applicant was a German national, whom the Home Secretary intended to extradite to the United States to stand trial for murder. In being extradited, the applicant faced the possibility of a death sentence and exposure to the "death-row phenomenon". The Court held that implementing the decision to extradite the applicant would therefore amount to a violation of Article 3. In relation to Article 50 it said:
No breach of Article 3 has as yet occurred. Nevertheless, the Court having found that the Secretary of State's decision to extradite to the United States of America would, if implemented, give rise to a breach of Article 3, Article 50 must be taken as applying to the facts of the present case.[21]
The Court made no award, concluding that its finding amounted to just
satisfaction but it awarded costs and expenses in full.[22]
6.18 In Chahal v United Kingdom,[23] the applicant, a Sikh separatist leader, had been detained in custody by the Home Secretary pending deportation as a threat to national security. The Strasbourg Court held that the decision to deport him to India would, if implemented, constitute a violation of Article 3 because it would expose him to risk of torture. In addition, the Court held that he had been denied an effective remedy in the Courts because of the national security aspects, and found violations of Article 13 and Article 5(4). However, the detention as such was not held (by a majority) not to be unlawful under Article 5(1). Accordingly, his claim for compensation for non-pecuniary loss suffered during his detention was rejected, and in respect of the violations found, the Court held that the judgment itself constituted sufficient just satisfaction.
6.19 The same result was reached in Ahmed v Austria,[24] even though the Court acknowledged that there was some non-pecuniary loss. The applicant was a Somali national who lost his refugee status and faced deportation following a criminal conviction. The Court held that for as long as there was a real risk that the applicant would be subjected to torture or inhuman and degrading treatment in Somalia, the decision to deport would if implemented contravene Article 3. No monetary compensation was awarded. The Court simply commented:
The Court considers that the applicant must have suffered nonpecuniary damage but that the present judgment affords him sufficient compensation in that respect.[25]
(2) Actual violations
6.20 Where there have been actual violations of article 3, substantial awards of damages have been recovered by applicants, in recognition of the seriousness of the violation. In Aydin v Turkey,[26] the applicant was raped and tortured while detained by the security forces. The Court said:
...having regard to the seriousness of the violation of the Convention suffered... and the enduring psychological harm which she may be considered to have suffered on account of being raped, the Court has decided to award a sum of £25,000 by way of compensation for nonpecuniary damage.[27]
6.21 In Kurt v Turkey[28] the applicant, who lived in a village which was burned down by security forces, alleged that soldiers had taken her son and that his whereabouts had since been unknown to her. The Court found a violation of Article 3 in respect of the applicant herself, noting that after she witnessed her son's detention by the security forces she had been left for a prolonged period of time with the anguish of knowing that her son had been detained with no official information as to his subsequent fate, and that the authorities had ignored her complaints. Having regard to "the gravity of the breach", it awarded £10,000 to the applicant herself for non-pecuniary damage.[29]
6.22 In Aksoy v Turkey,[30] the Strasbourg Court similarly had regard to the seriousness of the breach. Here the applicant had been tortured by the security forces. After he had made an application under the Convention, he was killed. The application was continued by his father. The Court awarded the full amount of compensation sought
In view of the extremely serious violations of the convention suffered by [the applicant] and the anxiety and distress that these undoubtedly caused to his father ...
In Selçuk and Asker v Turkey[31] the Court also made substantial awards for pecuniary and non-pecuniary loss, but specifically rejected claims for "punitive" and "aggravated" damages.[32]
6.23 In Ilhan v Turkey[33] the applicant's brother was kicked, beaten and struck on the head with a rifle. He suffered severe bruising, brain damage and long-term impairment of function. The Strasbourg Court made a substantial award for pecuniary loss in respect of the past medical expenses of the applicant's brother and the past and future income which his brother had lost. In each case the claims submitted by the applicant were accepted,
having regard … to the detailed submissions by the applicant concerning these elements, which included the actuarial basis of calculation of the appropriate capital sum to reflect the loss of income due to [his brother's] injuries.
In contrast, a claim for future medical expenses, for which no supporting evidence was submitted, was rejected as being largely speculative. As with similar cases under Article 2,[34] an award of £25,000 was made in respect of the brother's non-pecuniary loss.[35]
6.24 Substantial awards under Article 3 have not been limited to cases arising from the violent conflicts in Turkey. In Ribitsch v Austria,[36] the applicant was physically assaulted by police officers while in custody.[37] He was awarded 100,000 Austrian schillings (£6,410) for non-pecuniary damage on an "equitable basis". In A v United Kingdom,[38] the state was found to be in violation of Article 3 for the failure of the law to protect a child who had been beaten by his stepfather.[39] The Government had accepted the Commission's finding of a violation, and undertaken to amend the law. However, the Court considered that "in the circumstances of the case" (unspecified) there should be an award of £10,000 for non-pecuniary damage.
6.25 In Assenov v Bulgaria,[40] the Court found a violation of Article 3 in the State's failure adequately to investigate alleged maltreatment of the applicant (then aged 14) by the police. The judgment also found breaches of Article 5 arising out of a separate incident 3 years later. The Court made a global award of 6 million Bulgarian levs (£2,155) in respect of the non-pecuniary loss suffered by Mr Assenov, "given the gravity and number of violations found in this case." It is not possible to distinguish the proportion attributable to the violation of Article 3. In Sevtap Veznedaroglu v Turkey[41] the Strasbourg Court similarly found that Article 3 had been violated because of the failure of the authorities to investigate allegations that the applicant had been tortured by the police. It awarded the applicant 2,000 United States dollars (£1,265) in respect of his non-pecuniary loss.
4. ARTICLE 4
5. ARTICLE 5
6.27 Article 5 of the Convention provides:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.
(1) Article 5(1)
(a) Pecuniary loss
6.29 Claims for pecuniary loss have almost invariably failed, usually for lack of clear evidence of financial loss caused by the detention.[42]
6.30 A rare exception was Tsirlis and Kouloumpas v Greece,[43] in which the award was said to cover both pecuniary and non-pecuniary loss. The applicants were Jehovah Witness ministers who were detained by military courts (for periods of 13 and 12 months respectively) in connection with their refusal to perform military services. The Strasbourg Court held that their detention was arbitrary and violated Article 5, because the military court had "blatantly ignored" previous case-law on the religious exemption. Although there appear to have been no details of pecuniary loss,[44] the Court made a global award for both pecuniary and non-pecuniary loss.[45]
The Court observes that Mr Tsirlis and Mr Kouloumpas spent 13 and 12 months respectively in what was unlawful detention. The very fact of their deprivation of liberty must have produced damage of both a pecuniary and a non-pecuniary nature. However, no compensation was granted by the domestic courts.
Making an assessment on an equitable basis, as required by Article 50, the Court grants Mr Tsirlis 8,000,000 Greek drachmas [£17,220] and Mr Kouloumpas 7,300,000 Greek drachmas [£15,715] in respect of any damage they have sustained.[46]
(b) Non-pecuniary loss
6.32 In Erkalo v Netherlands,[47] the applicant, who was serving a prison sentence for manslaughter, and was also undergoing psychiatric treatment, was eligible for early release. The prosecutor's request for an extension of his placement was made out of time, but was admitted by the local court because the applicant had been informed in advance and was therefore not prejudiced. The Strasbourg Court held that there was a breach of Article 5(1) because there had been a resulting delay of over two months in the review of the applicant's detention, and he had been kept "in a state of uncertainty" for that time. However, it rejected his claim for compensation (claimed at a rate of 250 Dutch guilders (£80) per day), because no pecuniary loss had been proved, and, in respect of nonpecuniary loss, it said
the Court considers that a finding of a violation of Article 5(1) of the Convention constitutes in itself sufficient just satisfaction in the circumstances.[48]
6.33 In Amuur v France,[49] the applicants were Somali nationals who had applied for asylum. They were detained at the airport for 20 days before their applications were refused and they were deported. The French procedures under which they were detained resulted in them having no access to legal advice for 15 days, and no access to a court for 17 days. Again, the Court held that the finding of a violation "having regard to the particular circumstances of the case" was sufficient just satisfaction.
6.35 Similarly, in other cases, although reasons for refusing damages are not usually given, it is sometimes possible to infer them from the facts of the case. The length of detention may be very short, or there may be other factors which mitigate its seriousness.[50] For example, in K-F v Germany,[51] the applicant was unlawfully detained for only 45 minutes. In Fox, Campbell and Hartley v United Kingdom,[52] the applicants were unlawfully detained (in Northern Ireland) for periods varying between 30 and 40 hours, but the Court accepted that the police had grounds for bona fide suspicion that they were involved in terrorist offences.[53] In Ciulla v Italy,[54] the applicant was unlawfully detained for 17 days; but he had given no particulars of damage, and had indicated that his main concern was to have the detention declared in breach of Article 5.
6.36 However, even short periods of detention can attract small awards, if there are special circumstances.[55] For example, in Steel v United Kingdom,[56] the applicants handed out pacifist leaflets outside a military conference. They were charged with breaches of the peace and held for 7 hours. Ultimately, the prosecution called no evidence and the case was dismissed. The Court found violations of Articles 5 and 10 in their detention "following the peaceful exercise of their right to freedom of expression".[57] It awarded them £500 each for non-pecuniary loss.
6.37 A substantial award is more likely in cases of deliberate misconduct by the authorities. Bozano v France[58] is a striking example, since a breach lasting only 2 days attracted an award of 100,000 French francs (£9,880). It also deserves attention because of the unusually detailed discussion of the issue of compensation. The applicant, an Italian national, was convicted in absentia by the Genoa Assize Court of Appeal of murdering a young Swiss tourist in Genoa. Following issue of an international arrest warrant in 1976, he was arrested in France in January 1979, but in May a French Court ruled that, since the applicant had been convicted in absentia, he could not be extradited to Italy. However, on 26 October, on an order of the Minister of the Interior (service of which was delayed, so giving him no chance to challenge it in court) he was arrested, and the following day forcibly deported to Switzerland (which had an extradition agreement with Italy). Although the deportation order was later quashed by the French Courts, the applicant was extradited from Switzerland to Italy, where he was imprisoned.
... such a sum is far from commensurate with the seriousness of the breach of Article 5(1)... This was a violation of the right to liberty and to security of person, a disguised form of extradition designed to circumvent a negative ruling by the appropriate French court, and an abuse of deportation procedures for objects and purposes other than its normal ones. The attendant circumstances inevitably caused the applicant substantial non-pecuniary damage.[59]
The Court accepted that the Government could not be held responsible for the applicant's detention in Switzerland and Italy, but referred to the potential benefits that access to the court might have offered.
… [O]n 26 October, [the applicant] could reasonably hope to remain at liberty in France for at least a while. If any appeals of his to the administrative court and the Conseil d'Etat had failed - by no means a foregone conclusion in view of the first reason given for the judgment quashing the deportation order, he should normally have been able to go (under supervision, if necessary) to a country other than Switzerland. Admittedly, there is nothing to say that another country would not likewise have handed him over to Italy under an extradition treaty applicable to their mutual relations, or even in the absence of such a treaty; but there would at least have been some delay in delivering him into the custody of the Italian authorities. The forcible removal of [the applicant] from Limoges to the Swiss border therefore caused him real damage, although this cannot be precisely assessed. This was a consequence not of the deportation itself, as the Government stated, but of the 'process' whereby it was carried out and of the unlawful and arbitrary deprivation of liberty suffered by the applicant in France during the night of 26-27 October 1979.[60]
The Court awarded the applicant 100,000 French francs (£9,880).
6.40 In Quinn v France,[61] the applicant was an American citizen who was subject to proceedings for financial fraud in France and Switzerland. After he had been remanded in custody in France for several months, a French court ordered his immediate release on 4 August 1989; but, following a delay of 11 hours in executing the order, he was re-arrested on a warrant from the Swiss authorities pending extradition. He was held until 10 July 1991, when he was convicted of various offences in the French court and sentenced to imprisonment. He was later extradited to Switzerland. The Strasbourg Court held that there had been violations of Article 5(1): (a) his detention for 11 hours in August 1989; and (b) the excessive length of detention (almost 2 years) pending extradition. He was awarded 10,000 French francs (£1,310) for (a) and 50,000 French francs (£6,550) for (b).
6.41 In Lukanov v Bulgaria,[62] the applicant, a member of the Government, was arrested on 9 July 1992, on suspicion of having misappropriated public funds, and was detained until 30 December 1992, when he was released on bail. He was assassinated in 1996, while the case was still pending. Before the Strasbourg Court the Bulgarian Government was unable to produce any evidence demonstrating the commission of an offence. The Court found a violation of Article 5(1) during the period 7 September-30 December 1992.[63] It awarded 40,000 French francs (£4,050) to the applicant's widow and children (who were pursuing the application on his behalf).[64]
6.42 In Johnson v United Kingdom,[65] the applicant was committed to Rampton Hospital under the Mental Health Act. On 15 June 1989, the Mental Health Review Tribunal ("the Tribunal") ordered the applicant's conditional discharge, one of the conditions being residence in a supervised hostel.[66] No such accommodation could be found, and he remained at Rampton Hospital until 21 January 1993, when he was unconditionally released. The Court observed that, as the Tribunal lacked the power to guarantee his relocation within a reasonable period, the imposition of the condition led to indefinite deferral of his release. Accordingly, his detention from June 1989 to January 1993 violated Article 5(1) of the Convention. The Court accepted that the delay could not be "attributed entirely to the authorities":
In the first place, some period of deferment of release was inevitable, having regard to the need to locate a hostel suited to the applicant's situation… Secondly, the applicant's negative attitude towards his rehabilitation did not facilitate their task and after October 1990 he refused to co-operate further with the authorities in finding a suitable hostel.[67]
He was awarded £10,000.[68]
(2) Article 5(2)
6.43 There are very few cases of an award under this paragraph. In Van der Leer v Netherlands,[69] the applicant was a voluntary patient at a psychiatric hospital. In November 1983, an order was made in her absence for her to be confined at the hospital for a period of six months. She was only informed after 10 days, and her application for a discharge order was not heard until 7 May 1984, when she was released. The Court found violations of Article 5(1) (failure to comply with relevant legal procedures), 5(2) (failure to inform her promptly), and 5(4) (excessive time for review by the Court). It accepted that there was "some nonpecuniary damage":
The fact that she was not heard by the Cantonal Court judge could have led to a feeling of frustration, to which was added the fear of being sent back to the hospital during the delay resulting from the failure to take the relevant decision 'speedily'.[70]
It awarded her 15,000 Dutch florins (£4,620), the sum proposed by the Government, in respect of all heads of claim (including expenses).
(3) Article 5(3)
6.44 Article 5(3) embodies the following rights:[71]
(1) The right of a person arrested on suspicion of having committed an offence to be brought promptly before a judge or other officer authorised by law to exercise judicial power.
(2) The right of a person arrested on suspicion of having committed an offence to be released pending trial. This right is not absolute. A court may order a person to be detained pending trial if there are sufficiently compelling reasons to do so.
(3) The right of a person who is ordered to be detained pending trial to be tried within a reasonable time.
(a) The right to be brought promptly before a judge
(i) Pecuniary loss
6.46 In Pauwels v Belgium,[72] the applicant was an army officer who had been arrested on embezzlement charges; his detention had been confirmed by a Board of Inquiry. The Strasbourg Court found a breach of Article 5(3) because the board did not have the necessary independence. The applicant claimed damages for loss of salary and pension rights, proceeding "on the assumption that an independent and impartial judge would have released him".[73] The Court dismissed the claim for pecuniary loss. It shared the Commission's view that:
The evidence... did not afford any reason to suppose that the applicant's detention on remand would probably have been brought to an end if … an independent judicial officer had chaired the Board of Inquiry. In short, no pecuniary damage had flowed from the breach of the Convention.[74]
(ii) Non-pecuniary loss
At the very least, each applicant did… forfeit the opportunity of a 'prompt' judicial control of his detention. The applicants must have suffered, by reason of the absence of the relevant guarantees, some non-material prejudice not wholly compensated by the findings of violation or even by the deduction of the period spent in custody on remand from the sentence of imprisonment ultimately imposed.[75]
6.48 However, this practice has not been consistent. For example, in Brogan v United Kingdom,[76] the applicants were arrested on suspicion of various terrorist offences. They were detained for periods of four to six days without appearing before a judge, and subsequently released without charge. In these circumstances, the Court held that there had been violations of Article 5(3) and (5). However, the Court dismissed the applicants' claims for non-pecuniary loss on the basis that the finding of a violation was sufficient just satisfaction for any loss that they may have suffered.
6.49 More recent cases tend to refuse compensation for non-pecuniary loss on the ground that the Court's judgment provides just satisfaction.[77] An example is TW v Malta.[78] The applicant was arrested on 6 October 1994 on suspicion of sexually abusing his daughter; he was released on bail on 25 October. The applicant was not brought before a judge during the period of detention. On 8 May 1995, the applicant was convicted and sentenced to two years' imprisonment (suspended). The Court held that there had been a violation of Article 5(3), but held that the finding of a violation was sufficient just satisfaction for any loss suffered.
6.50 In Jordan v United Kingdom[79] the Strasbourg Court rejected a claim for damages for non-pecuniary loss by the applicant. The applicant, a soldier, had been sentenced to detention following a hearing by his commanding officer. The Court found that Article 5(3) had been violated because the commanding officer could not be considered to be independent of the parties. However, it noted that
just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he had had the benefit of the guarantees of Article 5(3).[80]
6.51 However, special factors may justify an award. In Sakik v Turkey[81] the applicants were elected to the Turkish National Assembly as members of the People's Labour Party. On 24 March 1994, the National Assembly removed their parliamentary immunity. On the same day, they were arrested and detained on suspicion of various terrorist activities. They were held for periods of 12-14 days without judicial supervision. The Court held that there had been violations of Article 5(3), 5(4) and 5(5). The applicants claimed compensation for nonpecuniary loss due to deprivation of their liberty, aggravated by the damage to their "reputation as members of Parliament". The Court made awards of between 25,000 French francs (£2,530) and 30,000 French francs (£3,040), on the basis that "the circumstances in which they were deprived of their liberty" must have caused them non-pecuniary damage. Although not referred to expressly by the Court, it seems likely that the Court accepted that the political position of the applicants justified special treatment.
(b) The right to release pending trial
(i) Pecuniary loss
6.53 In Letellier v France[82] the applicant was charged as an accessory to murder in July 1985 and remanded in custody.[83] In May 1988, she was convicted and sentenced to three years' imprisonment; but the period of pre-trial detention was automatically deducted, so that she was released a few days later. The Court held that there had been a violation of Article 5(3), because the national authorities had failed to identify any sufficiently compelling grounds for the applicant's continued pre-trial detention. She claimed 435,000 French francs (£44,570), as damages for pecuniary loss, based on a proportion of the turnover of the bar-restaurant of which she was proprietor/manager. The Court dismissed the claim "because the pre-trial detention was deducted in its entirety from the sentence." [84]
(ii) Non-pecuniary loss
6.54 Recent practice of the Court, exemplified by Nikolova v Bulgaria,[85] suggests that awards of damages for non-pecuniary loss are the exception, not the rule, in cases involving violations of Article 5(3) and 5(4).[86]
6.55 Nikolova itself was a case of refusal of bail on inadequate grounds.[87] The applicant had been charged with an offence of a kind which, under Bulgarian law, required bail to be refused except in very narrowly defined circumstances. The Court found a breach of Article 5(3) because the investigator before whom the applicant was brought could not be regarded as an "officer authorised by law to exercise judicial power", and of Article 5(4), because there had been no proper judicial consideration of her case for bail (based on the fact that she had not attempted to abscond or obstruct the investigation previously, and had a family and stable way of life). However, non-pecuniary damages were refused on the basis that the finding was sufficient just satisfaction.[88]
6.56 There are some recent examples of awards under this head, although in each case combined with a violation of Article 6(1) or other articles of the Convention. In Mansur v Turkey[89] the applicant was arrested on suspicion of drug trafficking in November 1984 and detained pending trial. In February 1991 he was sentenced to thirty years' imprisonment (reduced on appeal to ten years), the pre-trial detention being deducted from sentence. He was released on 1 July 1991. The Court held that there had been a violation of Article 5(3) during the period January 1990-February 1991,[90] because there were inadequate reasons for his continued detention; and a violation of Article 6(1) in respect of the length of the criminal proceedings. The claim for pecuniary loss failed,[91] but the applicant also claimed substantial damages for non-pecuniary loss, because "the poor conditions of his detention had had lasting effects on his health." [92] The Court awarded the applicant 30,000 French francs (£3,930).[93]
6.57 In Labita v Italy[94] the applicant had been arrested on suspicion of being a member of a Mafia association and related offences. He was detained pending trial for two years and seven months. At trial, he was acquitted. In civil proceedings in Italy he was awarded 64 million lire (£19,780) as compensation for his unjust and particularly harsh detention (he alleged that he had been ill treated by his prison warders), the damage to his reputation and the costs to his family. Subsequently he was made the subject of 'preventative' orders under Italian law, which led to his disenfranchisement. The Strasbourg Court found that, inter alia, there had been violations of Articles 5(1) because on his acquittal he was detained for a further eight to ten hours because of the absence of the registration officer and of 5(3) because of the unreasonably long period of pretrial detention.[95] The applicant claimed for pecuniary loss for, inter alia, the closing down of the discotheque he owned while he was in detention.[96] The Strasbourg Court rejected this, taking account of the fact that the applicant had already been compensated by national courts for any damage that he might have suffered while in detention pending trial. The applicant was however awarded 75 million lire (£23,180) in compensation for his non-pecuniary loss "on an equitable basis", having regard to the number and seriousness of the violations found in the case.
6.58 A recent case which was explicitly treated as an exception to the Nikolova approach was Caballero v United Kingdom.[97] The applicant, who was 70 years old at the time, was arrested in January 1996 on a charge of attempted rape. He was refused bail, because he had a previous conviction for manslaughter, the magistrate having no discretion in such a case.98 In October 1996 he was convicted, and in January 1997 he was sentenced to life imprisonment, from which the period of detention on remand was deducted. The Strasbourg Court accepted the Government's concession that there was a violation of Article 5(3). In the special circumstances, the Court referred to the undisputed affidavit evidence that, apart from the statute, he would have had a good chance of bail, and noted that the applicant further argued
that any such release on bail prior to his trial could have been his last days of liberty given his advanced age, his ill-health and the long sentence he was serving, a submission on which the Government also did not comment.[98]
It awarded "on an equitable basis" £1,000 compensation for non-pecuniary damage.
(c) The right to trial within a reasonable time
6.60 In Toth v Austria,[99] the applicant was arrested in January 1985 on suspicion of aggravated fraud; he was not released on bail until February 1987. In May 1988, he was sentenced to four and a half years' imprisonment (later reduced to four years), from which the period of pre-trial detention was automatically deducted. The Strasbourg Court held that he had not been tried within a reasonable time. He claimed damages for pecuniary loss, based on "his loss of earnings during the pre-trial detention and the reduction in his salary after his release." [100] The Court dismissed the claim for pecuniary loss "because the entire period of pre-trial detention was deducted from the sentence."[101] He also claimed damages for "mental suffering" in prison.[102] This claim also was rejected on the basis that the finding of a violation was sufficient just satisfaction for any non-pecuniary loss.
6.61 One case in which a substantial award was made was Tomasi v France,[103] but it was an extreme cases involving breaches of Articles 3, 5 and 6. The applicant, a shopkeeper and salaried accountant, had been arrested in March 1983 on suspicion of terrorist offences. He was held for over 5 years, during which time numerous applications for release were refused, there were delays by judicial authorities, and he alleged that he had suffered beating and ill-treatment in prison. He was eventually acquitted at his trial in October 1988. In 1991 he received 300,000 French francs (£30,740) from the French Compensation Board as compensation for the period that he had spent in detention on remand. The Strasbourg Court found a violation of Article 5(3), because he had not been tried within a reasonable time; it also found violations of Articles 3 and 6.[104] The Court took account of the payment by the Compensation Board, but awarded a further 700,000 French francs (£83,590) in respect of pecuniary and nonpecuniary loss.[105]
6.62 An award for pecuniary loss was also made in Cesky v Czech Republic.[106] Here the applicant, having been arrested in 1993 for robbery and suspected murder, was held on remand until 1997. The Strasbourg Court found that there had been a violation of Article 5(3) due to the length of the applicant's detention on remand. The applicant claimed 324,000 Czech koruna (£5,660) for loss of earnings during the four years of his detention. The claim was calculated on the basis of average wages in the Czech Republic during that time. The Strasbourg Court noted that the applicant's appeal against his conviction was still pending, and that it could not therefore be said that the period of his pre-trial detention had been deducted from his sentence.
In these circumstances, and even assuming that the applicant did not have permanent employment in the Czech Republic when he was arrested and detained on remand, the Court considers that there is a certain causal link between the violation of Article 5(3) of the Convention found and the sums claimed by the applicant to compensate for his loss of earnings.
6.64 Cesky v Czech Republic[107] can be contrasted with Punzelt v Czech Republic.[108] The facts were similar: the applicant had been held on remand for over three years before being brought to trial, in violation of Article 5(3). However, the time which he spent on remand was deducted from his sentence. The Strasbourg Court therefore rejected the applicant's claim for pecuniary loss, on the grounds that the finding of a violation provided sufficient just satisfaction. However, the Court awarded the applicant 10,000 German marks (£3,060) as compensation for non-pecuniary loss.[109]
(4) Article 5(4)
(i) Pecuniary loss
6.66 Claims for pecuniary loss in Article 5(4) cases have generally been dismissed for lack of a sufficient "causal link".[110]
6.67 An early example was De Wilde, Ooms and Versyp v Belgium.[111] A police court, consisting of a single magistrate, ordered that the applicants should be detained as vagrants; they were detained for periods varying between seven and twentyone months. The Court held the administrative character of the proceedings in the police court did not satisfy the requirements of Article 5(4). The claim for pecuniary loss was rejected on the ground that compliance with Article 5(4) would not have resulted in the applicants obtaining their release any sooner.[112]
6.68 A rare example of an award for pecuniary (as well a non-pecuniary) loss was Weeks v United Kingdom.[113] The facts were unusual. In 1966, the applicant, who was then aged seventeen, was arrested and, in December, convicted of armed robbery and sentenced to life imprisonment.[114] The Parole Board recommended that the applicant should be provisionally released in April 1975. This recommendation was not implemented, but he was released on licence in March 1976. He began work as a labourer in June 1977, but soon after he was arrested on suspicion of various offences, and the Home Secretary revoked his licence. At the trial in October 1977, the trial judge imposed a two-year conditional discharge and advised the Home Secretary that he should be released on licence, but this advice was not accepted. A similar recommendation in May 1979 by the Parole Board was also rejected. In October 1981, he was sentenced to three months' imprisonment for an offence of malicious wounding committed in detention. In October 1982, he was released on licence, but this was revoked in November 1984, after he had absconded to France. He was apprehended in April 1985, and released again on licence in September, but this licence was revoked in March 1986. The applicant was still at large during the currency of the Strasbourg proceedings.
6.69 The Court observed that the indeterminate life sentence had been imposed by the sentencing court in order that the Home Secretary might monitor the applicant's progress and release him back into the community when he was no longer a danger to society or himself. It noted that the provisions of Article 5(4) entitled the applicant to have the lawfulness of his detention determined speedily by a "court" at reasonable intervals during the course of his detention and immediately he was returned to prison after any period of liberty on licence.[115] The Court held that since the Parole Board did not qualify as a "court", there had been a violation of Article 5(4). In April 1987, the Government remitted the applicant's life sentence in response to the Court's judgment.
6.70 The applicant claimed damages for both pecuniary and non-pecuniary loss. His claim for pecuniary loss was for loss of earnings,[116] on the basis of his hypothetical release on one of the dates when recommendations had been made by the Parole Board or the judge. The non-pecuniary loss was based on the "adverse effects on his personal life and development".[117] The Government resisted both, on the ground that he had not shown that he would have been released earlier in proceedings complying with Article 5(4).
The Court finds it impossible to state that the applicant would definitely have been released had such proceedings been available to him. On the other hand, it cannot be entirely excluded that he might have been released earlier and, in view of his age, might have obtained some practical benefit. Consequently, [the applicant] may be said to have suffered a loss of opportunities by reason of the absence of such proceedings, even if in the light of the recurrence of his behavioural problems the prospect of his realising them fully was questionable. The claim for pecuniary loss cannot therefore be completely discounted.
14. As regards non-pecuniary loss, the absence of a remedy satisfying the requirements of Article 5(4) must have caused [the applicant] a feeling of frustration and helplessness, especially in view of his age and the particular circumstances of the case. In the opinion of the Court, neither the remission of his life sentence in April 1987 nor its finding of a violation constitutes adequate just satisfaction for the prejudice suffered as a result of the violation up to April 1987. Accordingly, some monetary compensation is justified.
15. In fixing the amount of compensation to be awarded, account should be taken of the special features of the case, notably the severity of the 'indeterminate' life sentence in relation to the crime committed. Even so, the amounts sought in respect of both pecuniary and non-pecuniary damage are excessive. However, it is impossible to quantify either head of damage in any precise way. Taking them together and, as is required by Article 50, on an equitable basis, the Court affords the applicant just satisfaction in the sum of £8,000.[118]
(ii) Non-pecuniary loss
6.72 Awards have been made in some cases. For example, in Megyeri v Germany,[119] the applicant was awarded 5,000 German marks (£2,040), on an "equitable basis", to reflect the "feeling of isolation and helplessness" caused by the lack of legal assistance in the first set of proceedings. However, as already noted, in the light of the more recent discussion in Nikolova, it is unclear how often such awards can be expected in future.[120]
6.73 One recent case in which an award was made is Curley v United Kingdom.[121] Here the applicant, convicted of murder, was detained at Her Majesty's pleasure at the age of 17. He complained that his detention was only subject to review by the Parole Board, a body which did not fulfil the requirements laid down under Article 5(4). The Strasbourg Court found that Article 5(4) had been breached. The applicant argued that he should receive compensation calculated according to domestic scales of compensation for unlawful detention from the first or second date on which the Parole Board had recommended his release, giving rise to a claim of £50,000 or £25,000 respectively.[122] The Court noted that
... the applicant must have suffered feelings of frustration, uncertainty and anxiety which cannot be compensated solely by the findings of violations. It does not, however, consider that the domestic scales of compensation applicable to unlawful detention apply in the present case where there has been no equivalent finding of unlawfulness.
The applicant was awarded £1,500 on an equitable basis.
6.74 There are numerous recent cases in which awards have been refused. In Kampanis v Greece,[123] the Indictment Division of the Athens Court of Appeal had ordered the continued detention of the applicant pending trial. Since the Indictment Division had refused to hear the applicant, there had been a violation of the "equality of arms" principle embodied in Article 5(4). The applicant claimed 20 million Greek drachmas (£61,600) as damages for non-pecuniary loss. The Strasbourg Court rejected this claim, holding that the finding of a violation constituted sufficient just satisfaction.
6.75 In Hussain v United Kingdom,[124] the applicant was convicted on 12 December 1978 of murdering his younger brother; being only sixteen, he was detained at Her Majesty's pleasure. The Home Secretary set a tariff of 15 years. The applicant's case had been reviewed by the Parole Board in 1986, 1990, 1992 and 1994. The board did not recommend release. The Strasbourg Court held that immediately the tariff period expired, the criterion by which to determine the lawfulness of the applicant's continued detention was his danger to society, which should be decided by a court at reasonable intervals; and that, since the Parole Board did not possess the characteristics of a "court", there had been a violation of Article 5(4). However, the Court rejected the applicant's claim for damages for non-pecuniary loss, holding that there was no evidence that he would have regained his freedom in the absence of the violation of Article 5(4). Even though he may suffered "some anxiety", the Court held that the finding of a violation was sufficient just satisfaction.[125]
6.76 In Chahal v United Kingdom,[126] the Home Secretary determined that the applicant constituted a threat to national security and should be deported to India. He was detained in August 1990. His application for release on bail was refused, and an application for judicially review was dismissed in November 1995, the judge observing that he did not have access to all the material relating to the security issue. The Court held that, since the national court was unable to determine whether the decision to detain the applicant was justified on national security grounds, there had been a violation of Article 5(4). However, it dismissed the claim for damages for non-pecuniary loss, holding that the finding of a violation constituted sufficient just satisfaction.
6.77 A recent case, in which an award was made in somewhat special circumstances, was RMD v Switzerland.[127] The applicant was arrested, and, during his detention, was transferred several times to different prisons in different cantons; numerous attempts to secure his release finally succeeded after 2 months. The Court found a breach of Article 5(4), and "on an equitable basis", awarded 5,000 Swiss francs (£2,090) for non-pecuniary loss. It referred to the particular problems caused by the separate criminal codes of the different Cantons, which led to the applicant being "continually transferred" from one jurisdiction to another.
(5) Article 5(5)
6.78 Article 5(5) is noteworthy, as the only Article in the Convention which expressly requires domestic law to provide a right to compensation.[128]
6.79 In practice, this feature has not proved a significant factor in the Strasbourg caselaw. First, the existence of a specific right to compensation under Article 5(5) has not been treated by the Court as limiting its general powers under Article 41.[129] As when the Court considers whether to award just satisfaction under Article 41, once a breach of Article 5(5) has been established, the Court has not found it necessary to wait for the exhaustion of any domestic compensation rights before granting its own remedy.[130] Secondly, notwithstanding the substantive right to compensation apparently guaranteed by Article 5(5), there is no presumption that damages are necessary to afford just satisfaction in cases involving a violation of Article 5. As already noted in this section, in many cases under Article 5 the Court has held that a finding of a violation is sufficient just satisfaction.[131]
6.80 Accordingly, there have been few cases which deal specifically with Article 5(5). Damages for pecuniary loss have not been the subject of consideration under Article 5(5).[132] In the few cases in which the Court has expressly considered the availability of damages for non-pecuniary loss under Article 5(5), it has held that the principal judgment is sufficient just satisfaction for any loss that might have been suffered.[133]
6. ARTICLE 6
6.81 Article 6 of the European Convention protects the right to a fair trial. Article 6(1) states:
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
6.82 Articles 6(2) and 6(3) provides further guarantees to those who are charged with
criminal offences:
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
(1) Access to a court
6.84 Provided the necessary causal link is shown, the Strasbourg Court may award damages for both pecuniary and non-pecuniary losses. However, claims for pecuniary losses frequently fail on causal grounds, while claims for nonpecuniary losses may be rejected on the ground that subsequent actions by the respondent State, or the Strasbourg Court's judgment itself, provide just satisfaction.[134]
(a) Pecuniary loss
6.85 Airey v Ireland[135] is a case in which a claim for pecuniary loss failed on causal grounds. The Court found that the applicant's rights under Article 6(1) had been breached because she did not enjoy an effective right of access to a court in connection with her petition for a decree of judicial separation. The applicant claimed compensation for the cost of finding new accommodation. The Court held that the applicant was not entitled to the cost of re-housing herself, as her decision to move had not been motivated by the denial of a right of access to a court but by fear of molestation by her husband.
6.86 Similarly, in Bodén v Sweden,[136] the applicant was found to have suffered a violation of his right of access to a court, in that no domestic court remedy was available which would enable him to challenge the lawfulness of an expropriation permit which affected his property. The applicant claimed compensation for pecuniary damage attributable to increased building costs over a 10 year period, and compensation for non-pecuniary damage. The Court held that the applicant had failed to establish that, had he been afforded a legal remedy, the domestic court would have afforded him a favourable decision, and refused his claim for pecuniary loss. The claim for non-pecuniary damages was also refused on the basis that the finding of a violation constituted just satisfaction.
6.87 Similar results were reached in a number of other cases brought against the Swedish authorities on the ground of the lack of a judicial procedure to challenge prohibitions and permits issued in respect of land.[137] The Court repeatedly took the view that it was not in a position to speculate as to what the outcome of legal proceedings might have been, if the violation had not occurred, and therefore no causal connection between the pecuniary losses claimed and the violation of Article 6(1) could be established.
(b) Non-pecuniary loss
6.88 As discussed in Part III, and as the above cases show, the Strasbourg Court frequently refuses to award damages for non-pecuniary loss on the ground that its finding of a violation provides sufficient just satisfaction in the circumstances of the case.[138]
6.90 This is indicated by a series of cases involving child-care and child protection proceedings. For example, W v United Kingdom[139] concerned the decision of a local authority to place the applicant's child, who was in the care of the local authority, in a foster home with a view to adoption. The Strasbourg Court found violations of Articles 6(1) and 8, on the basis of the inadequacy of the procedure, and the lack of a judicial remedy. The applicant claimed compensation of £100,000 to cover loss of consortium with his child, mental anguish and distress.
6.91 The Court emphasised that the procedural defects were "intimately connected with an interference with one of the most fundamental of rights, namely respect for family life".[140] Although it acknowledged that the likelihood of a different result was speculative, the Court
... [did] not feel able to conclude that... no practical benefit could have accrued to the applicant if the procedural deficiencies in question had not existed.
It accepted that the nature of his relationship with his child had changed. Accordingly
In these respects he may therefore be said to have suffered some loss of real opportunities as well as mental anguish and distress, warranting monetary compensation.[141]
On an "equitable basis", the Court awarded the applicant £12,000 for damage sustained.[142]
6.92 There are fewer examples of awards under this head in business cases. In Pudas v Sweden[143] the Court found that the applicant's rights under Article 6(1) had been violated by reason of the absence of a judicial procedure for challenging the revocation of a public transport licence by the relevant administrative authority. The Court dismissed the claim for pecuniary loss on causation grounds:
... the evidence submitted does not warrant the conclusion that, had Mr. Pudas been able to challenge the revocation of his licence before a tribunal, the decision would have been in his favour. Neither is it for the Court to inquire into the merits under Swedish law of the revocation.[144]
However, the court made an award of 20,000 Swedish krona for non-pecuniary
loss, on an "equitable basis", saying simply:
... the Court considers that the applicant suffered, by reason of the absence of a court remedy, some non-pecuniary prejudice and that... sufficient satisfaction would not be provided solely by the finding of a violation.[145]
6.93 In that case, the Strasbourg Court has no indication of the nature of the nonpecuniary loss which it was compensating. In other cases, however, it is more specific, referring to "the feeling of frustration" or "the prolonged anxiety" caused by the defective court process.[146]
(2) Independence and impartiality
(a) Pecuniary loss
6.95 Where proceedings are successfully challenged because of lack of independence in the original proceedings, the Court's approach to just satisfaction will take account of the result of any retrial. Thus, in Piersack v Belgium,[147] the Court upheld the applicant's claim that the impartiality of the tribunal which had convicted him was open to doubt. He had, however, been retried in proceedings which complied with the Convention, and given a sentence identical to that originally imposed upon him. Not surprisingly, the Court found that his loss of liberty was not attributable to the breach of Article 6(1), and his claim for loss attributable to the imprisonment failed.[148]
6.96 Even where a re-trial has not taken place, the applicant's claim for damages is likely to fail because of lack of evidence that an independent tribunal would have arrived at a different decision. For example, in Hauschildt v Denmark[149] the applicant complained that he did not receive a fair trial by an independent tribunal because some of the judges involved in the conviction had made pre-trial decisions concerning his detention. The Strasbourg Court ruled out personal bias on the part of the judge, but agreed that the impartiality of the tribunal might have appeared open to doubt. However, this finding did not mean that the conviction was not well-founded, and the Court would not speculate as to the result in the absence of a violation. It therefore found no causal link between the violation and the alleged pecuniary loss. The claim for non-pecuniary damage also failed as the Strasbourg Court held that its finding of a violation was adequate just satisfaction.[150]
6.97 In some cases the court has been prepared to give damages for a "loss of opportunity".[151] The distinction appears to be a question of degree, depending on the seriousness of the violation. Thus, in Bönisch v Austria,[152] the Strasbourg Court accepted the applicant's claim that he had been denied a fair trial and equal treatment, in that a court-appointed witness appeared to be biased. The Strasbourg Court found no causal link between the violation of Article 6(1) and the deterioration in the applicant's financial position, and it declined to speculate as to the outcome of the proceedings if there had been no breach:
Nevertheless, the Court does not exclude the possibility that the applicant suffered, as a result of the potential effects of the violation found, a loss of opportunities of which account must be taken, even if the prospects of realising them were questionable...
[The applicant] also undoubtedly suffered non-pecuniary damage. He was left in prolonged uncertainty as to the repercussions of the criminal proceedings brought against him. Above all, the dominant role played by the Director of the Federal Food Control Institute in those proceedings... must have given him a feeling of unequal treatment.[153]
The Court made a global award of 700,000 Austrian schillings (£27,420) for pecuniary and non-pecuniary loss.
(b) Non-pecuniary loss
6.98 The court may be prepared to give damages for non-pecuniary loss, even if the pecuniary loss is not clearly established. Bönisch v Austria[154] is an example. Another is De Cubber v Belgium.[155] The Court found a violation of Article 6(1), in that the investigating judge had also held the function of first instance judge in the same proceedings. The claim for pecuniary loss failed, because there was nothing to show that the result of the proceedings would probably have been more favourable to the applicant had the violation not occurred. However he was awarded 100,000 Belgian francs (£1,600) to compensate him for "the legitimate misgivings" which he suffered.[156]
6.99 In more recent cases, however, such claims have usually failed, the Strasbourg Court holding that the finding of violation amounts to just satisfaction. Thus, in Findlay v UK,[157] the applicant was a former British soldier who had fought in the Falklands campaign and who, while suffering from post-traumatic stress disorder, had created an incident in which he had threatened to shoot himself and a number of other colleagues. He was subject to court-martial proceedings at which a single officer was responsible for convening the court-martial, appointing the participants and confirming the applicant's sentence. As a result of these proceedings, his rank was reduced and he was dismissed with a consequential reduction in his pension. His requests for a review of this decision were rejected. The Court upheld the substance of his claim that the court martial did not constitute an independent and impartial tribunal. However, his claim for pecuniary and non-pecuniary loss failed, the Court declining to speculate as to the result in the absence of a violation. The Court held that the finding of a violation was just satisfaction.[158] This pattern is repeated in several recent cases and seems to represent the current approach of the Strasbourg Court.[159]
(3) Public hearing
6.100 Claims for pecuniary and non-pecuniary loss seem invariably to have failed where the only violation of Article 6(1) is that the hearing was not in public. The Strasbourg Court has generally held that there was no evidence that a public hearing would have affected the result; there was no causal link between the violation of Article 6(1) and any pecuniary damage or non-pecuniary damage. Alternatively, it has simply held that the Court's finding of a violation constituted just satisfaction. The applicants in these cases have, however, received awards of costs assessed with reference to the sums expended by them in vindicating their right.[160]
6.101 Damages may be awarded where lack of a public hearing is linked to other defects in the proceedings. In Barberà, Messegué and Jabardo v Spain,[161] the Strasbourg Court awarded damages for non-pecuniary loss in respect of violations of Article 6(1) because the proceedings did not satisfy the requirement that there be a fair and public hearing. The applicants, charged with terrorism related offences, were unexpectedly transferred from Barcelona to Madrid, the judge presiding over the trial was unexpectedly changed immediately before the trial opened, the trial was extremely short, and in particular important evidence was not adequately adduced and discussed at the trial in the applicants' presence and "under the watchful eye of the public". The Court found that the applicants had suffered a real loss of opportunities to defend themselves in accordance with the requirements of Article 6(1). Though the applicants had subsequently been retried and acquitted, the Court held that this could only provide partial reparation to the applicants. The first two applicants were awarded 8 million pesetas (£38,810) and the third applicant was awarded 4 million pesetas (£19,410) to cover all the heads of damage claimed.[162]
(4) Equality of arms
6.103 In Dombo Beheer BV v The Netherlands, [163] the Court explained the principle
The Court agrees with the Commission that as regards [civil] litigation involving opposing private interests,[164] "equality of arms" implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.[165]
6.104 The case concerned a claim by a company against a bank, based on an alleged oral agreement. The managing director of the company had not been allowed to give evidence (on the basis of a rule prohibiting evidence from parties to the proceedings), whereas the branch manager of the bank had given evidence. The Court accepted that there had been a violation of the principle of equality of arms. However, it rejected the claim for damages, because it was based on the assumption that admission of the evidence would have produced a different result, and the Court could not make that assumption without hearing the evidence.[166]
6.105 However in some cases the Court, though rejecting claims for pecuniary loss on causal grounds, will award damages for loss of opportunity. In Delta v France,[167] the applicant was convicted of robbery on the basis solely of written statements of the victim and her friend, and after his request to call witnesses had been refused. He claimed 156,698.49 French francs (£16,025) for loss of earnings while in prison, and a further 600,000 French francs (£61,360) for nonpecuniary injury for the feelings of distress induced by the violation and the deprivation of his liberty. The Court awarded him damages of 100,000 French francs (£10,230) (without specifying which of his losses this sum was directed towards), observing that, although it could not speculate as to the outcome of the trial had the violation of Article 6(1) not occurred, it did not find it unreasonable to regard the applicant as having suffered a "real loss of opportunities" in consequence of the breach.
6.106 In Kuopila v Finland[168] the applicant was convicted of aggravated fraud and embezzlement. When she appealed, the prosecution submitted further evidence at the appeal which was not disclosed to the applicant. The Strasbourg Court found that there had been a violation of Article 6(3). The applicant claimed 200,000 Finnish markka (£20,130) for 'suffering, distress and feelings of injustice'. The Court awarded her 15,000 markka (£1,510), accepting that
the lack of such guarantees has caused the applicant, who was sentenced to unconditional imprisonment, non-pecuniary damage which cannot be made good by the mere finding of a violation.
(5) Duty to give reasons
6.108 In H v Belgium,[169] the Court found a violation of Article 6(1) in respect of domestic proceedings which considered the applicant's readmission to the Bar roll. The proceedings were criticised in two respects. First, it was unclear what amounted to 'exceptional circumstances' which might justify the reinstatement of the applicant to the roll (making it difficult for the applicant to argue his case effectively. Secondly the lack of either rules of procedure for the proceedings in question, or a right to challenge the eventual decision, gave the applicant cause to fear that his claim would be dealt with arbitrarily. The lack of any definition of 'exceptional circumstances' made it more necessary to give reasons for the decision - but no such reasons were given. The applicant claimed non-pecuniary damages for the "ordeal", as well as pecuniary damages in respect of the income he would have earned if he had been able to resume his practice. The Court rejected the pecuniary claim for lack of causation as there were "no grounds for taking the disbarment and its consequences into consideration". However, in respect of non-pecuniary damage, the Court awarded 250,000 Belgian francs (£4,000) on an equitable basis. It did not specify the grounds for the award.
6.109 In contrast, damages have been denied in two subsequent cases. In Ruiz Torija v Spain,[170] the Strasbourg Court found a breach of Article 6(1) in proceedings relating to the termination of the applicant's lease of a bar, in that an appeal had been allowed against him without dealing with one of his submissions in the lower court. The Court declined to speculate as to the result if that submission had been considered, and refused his claim for pecuniary loss. Although it accepted that he might have suffered some non-pecuniary damage as a result of the breach, it held that the judgment provided sufficient just satisfaction. In Georgiadis v Greece,[171] the applicant was a Jehovah's Witness who had been detained for refusing to perform military service. Although he was acquitted, his claim for compensation was rejected without reasons and on this basis the Strasbourg Court found a violation of Article 6(1). However, as in the previous case, the claim for pecuniary damage was refused, because the Court could not speculate as to the outcome of the compensation proceedings had they been conducted in accordance with Article 6(1); and the non-pecuniary claim was also rejected because the judgment provided just satisfaction.
(6) Self-incrimination
6.111 The issue of just satisfaction in relation to this aspect of Article 6(1) arose in Funke v France.[172] The Strasbourg Court found violations of Articles 6(1) and 8, on account of the applicant's conviction for not disclosing documents to the customs authorities, and the search and seizures carried out at his home. He claimed damages of 300,000 French francs (£34,410), on the ground that the breaches of the Convention had had "a serious impact on his person and on that of his wife as well as on their private life."[173] The Court awarded 50,000 French francs (£5,735), accepting that
[he] must have suffered non-pecuniary damage, for which the findings of violations in this judgment do not afford sufficient satisfaction.[174]
It is not clear from the Court's judgment what proportion of the award related to the Article 6(1) breach.
6.112 In contrast, damages were not awarded in Saunders v United Kingdom,[175] a case where the sole violation concerned the right not to incriminate oneself. The violation arose from the use at the applicant's criminal trial of statements obtained by DTI inspectors under statutory powers of compulsion. The Strasbourg Court rejected the claim for pecuniary losses because a causal link had not been established and the Court could not speculate as to whether or not the outcome of the trial would have been different if the violation had not taken place. The claim for non-pecuniary damage was also rejected, the Court holding that "in the circumstances" its finding of a violation provided sufficient just satisfaction.
(7) Unreasonable length of proceedings
6.113 There are numerous cases concerning breaches of the right to trial within a reasonable time, and awards of damages are regularly made. Italy has been responsible for a significant proportion of these cases.[176] As under other heads, claims for pecuniary loss normally turn on the Strasbourg Court's decision on causation, but awards for non-pecuniary loss are more frequent. The Court seems more likely to award compensation when the proceedings which were unreasonably delayed were civil rather than criminal.
(a) Civil proceedings
6.114 Substantial awards have been made in cases where the breach of Article 6 has been linked with a breach of Article 1 of Protocol No 1, arising out of unreasonable delay in proceedings relating to property. Sporrong and Lönnroth v Sweden and Scollo v Italy are examples.[177]
6.117 In Darnell v United Kingdom,[178] the applicant, a doctor, complained that proceedings for unfair dismissal brought by him had extended beyond a reasonable time. He had been suspended in 1982, and dismissed in 1984. After various hearings, and an application to the High Court, his dismissal was finally confirmed by the Secretary of State in 1988. Separate Industrial Tribunal proceedings, commenced in 1984, finally failed before the Employment Appeal Tribunal in April 1993. Before the Court, the Government accepted the Commission's finding of a breach of Article 6(1), and offered an apology. Although there was a dispute as to the starting date for the assessment, the Court proceeded on the basis of an "unreasonable" delay of at least 9 years. The applicant claimed £5,000 in non-pecuniary damages, based on the "considerable stress and strain... [in] fighting legal battles instead of practising medicine." The Court noted that
... his medical competence was not challenged or criticised, but he none the less suffered serious damage to his professional career as a result of time lost from the practice of medicine.[179] His claim was allowed in full.
6.118 In H v France[180] the applicant's proceedings against a hospital had been unreasonably delayed. He claimed 200,000 French francs (£21,080) in damages for non pecuniary loss. The Strasbourg Court found that it was not proven that the delays had reduced his chances of proving his case but that the applicant had been forced to live in a prolonged state of distressing uncertainty and anxiety. He was awarded 50,000 French francs (£5,270) in non-pecuniary damages.
6.119 As noted above, there have been many Italian cases under this head. A typical example is Massa v Italy.[181] The applicant had been married to a school headmistress and, upon her death, had applied to the Department of Education for a reversionary pension. This application was not determined within a reasonable time for the purposes of Article 6(1). The Court found that between the reference to the Court of Audit, and its final judgment, there had unreasonable delay of some 6 years, contributed to by two "periods of inactivity attributable to the respondent State" amounting in total to three and a half years. The "excessive workload of the relevant division of the Court of Audit" was not accepted as a justification for the delay since
... Article 6(1) imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements...[182]
The Court dismissed the claim for pecuniary losses for lack of proof, noting that Italian law provided for full compensation for monetary depreciation and for interest. However, the Court held that the applicant had sustained nonpecuniary injuries which were not sufficiently compensated for by the finding of a violation, and it awarded damages of 10,000,000 Italian lire (£3,980).[183]
6.120 However, not all such cases result in awards for non-pecuniary loss. For example, in Scopelliti v Italy,[184] civil proceedings against a public body for wrongful occupation of land had taken over 8 years before they resulted in an award in favour of the applicant. The Strasbourg Court accepted that compensation awarded by the domestic courts was sufficient to cover the applicant's pecuniary losses. In respect of non-pecuniary loss, the Court held that the finding of violation was just satisfaction in the circumstances of the case. The Court gave no reasons distinguishing this case from those in which awards for non-pecuniary loss were made.
6.121 A change of the party involved in the proceedings may reduce the chances of a successful claim.[185] In Deumeland v Germany[186] the Court found unreasonable delay in proceedings relating to a claim for a statutory widow's pension. They had been begun by the applicant's mother, and continued after her death by the applicant. The Court acknowledged that the mother had suffered "some psychological distress" during the period of delay, but, even if she might have recovered some compensation, it "saw no reason" to grant such compensation to the applicant.
6.122 Cases under this heading also illustrate the point that the conduct of the applicant is a consideration which the Court will take into account when deciding whether to award damages for breach of the right to a hearing within a reasonable time, and when determining the quantum of any damages. Thus, the Court will take into account the fact, where relevant, that the applicant contributed to the prolongation of the domestic proceedings in respect of which the complaint is made.[187]
6.123 An example of an award for non-pecuniary loss being made to a corporate entity is provided by Comingersoll SA v Portugal.[188] Here the applicant complained of the length (over 17 years) of proceedings it had brought to enforce a debt. The Strasbourg Court held found that there had been a violation of Article 6(1). The company claimed damages for both pecuniary loss (based on the value of the debt) and non-pecuniary loss (of 5 million Portuguese escudos (£14,925)). Its claim for pecuniary loss was rejected. The Court noted that the enforcement proceedings were still pending and that it was impossible to speculate as to their outcome. However, the claim for non-pecuniary loss was more successful. The Court awarded 1.5 million escudos (£4,480):
In the instant case, the fact that the proceedings in issue continued beyond a reasonable time must have caused Comingersoll SA, its directors and shareholders considerable inconvenience and prolonged uncertainty, if only in the conduct of the company's everyday affairs. The applicant company was in particular deprived of the possibility of recovering its claim earlier ... it is therefore legitimate to consider that the applicant company was left in a state of uncertainty that justified making an award of compensation.
6.124 An interesting example of an award for pecuniary and non-pecuniary losses caused by unreasonable delay is provided by Guillemin v France.[189] The applicant's land had been expropriated by order, and compensation set. The applicant brought proceedings and succeeded in having the order for expropriation set aside by the Cour de Cassation. She then commenced proceedings for compensation but seven years later proceedings were still pending. The Court held that there had been breaches of Article 6(1) and Article 1 of Protocol No 1.[190] In the first hearing it held that, as there was a possibility of an agreement between the respondent State and the applicant, the question of pecuniary damage was not ready for decision and must be reserved.[191] However, it awarded her 250,000 French francs (£26,740) for nonpecuniary loss, including "living in a state of uncertainty and anxiety about the outcome of the proceedings". In September 1997, a tribunal de grande instance ordered the Town Council to pay the applicant 1,603,926 French francs (£171,574) for pecuniary and non-pecuniary loss. Ultimately this sum was paid by the Town Council to the applicant's lawyer as a stakeholder, but there was a series of appeals and by September 1998 none of the money had been paid to the applicant.[192] The Court refused to comment on the substance of the proceedings in France, as "it is not its function to give judgment on alleged errors of domestic law or to substitute its own assessment of the facts for that of the national courts".[193] It held that the failure to pay compensation within a reasonable time amounted to a violation of Article 1 of Protocol No 1 and that, without prejudice to the amount that will finally be paid to the applicant at the end of the proceedings in France, the applicant should be paid 60,000 French francs (£6,420) pecuniary damages "for the loss of availability of the sum already awarded"[194] in domestic proceedings.[195] The Court emphasised that compensation for losses suffered would only be adequate reparation if paid within a reasonable time.
(b) Criminal proceedings
6.126 In B v Austria,[196] for example, the applicant had been convicted of offences relating to exchange control. He complained that the excessive length of the proceedings had deprived him of the possibility of securing early provisional release, and hence of being able to earn an income. He also claimed damages for non-pecuniary injury, in that he had not been able to lodge an appeal while the judgment was pending. The Strasbourg Court held that there was no causal link between the violation of Article 6(1) and the applicant's alleged loss of earnings, because the applicant would still have remained in prison, even if the judgment had been served earlier, and that its finding of a violation was sufficient just satisfaction for his non-pecuniary loss.[197]
6.127 In some cases, however, the Strasbourg Court awards damages for nonpecuniary loss, even though the claim for pecuniary loss has failed on causation grounds. In Milasi v Italy[198] the violation consisted of a 10 year delay in concluding criminal proceedings against the applicant. His claim for pecuniary damage, consisting of lost salary and benefits from potential civil service employment, was rejected on causal grounds. The Court held that the applicant's failure to be recruited was not attributable to the criminal proceedings, but to his failure to sit the necessary examination. Nevertheless, it found that he had "undoubtedly" suffered non-pecuniary damage, "in that he was left in prolonged uncertainty as to the outcome of the criminal proceedings and their financial repercussions." He was awarded 7,000,000 lire (£3,180) on an "equitable basis".[199]
6.128 In complaints relating to criminal proceedings, the gravity of the crime may be set against any claim for damages. In Eckle v Germany,[200] after proceedings which the Court held to be unreasonably delayed, the applicants were convicted of serious fraud offences and given substantial prison sentences. Their claims for loss of earnings during the period of delay were dismissed, because there was no causal link between the violation and the losses (which were attributable to his conviction rather than the delay). The claim for non-pecuniary loss also failed; the Court observed that
... it cannot be overlooked that they were charged with serious acts of fraud committed to the detriment of, amongst others, persons lacking substantial financial resources and that the Trier Regional Court imposed heavy prison sentences on them.[201]
(8) Presumption of innocence
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
There are only a few cases in which the Court has considered the question of damages in respect of a breach of Article 6(2).
6.130 In Sekanina v Austria[202] the claim for damages failed on causation grounds. The applicant was acquitted of the murder of his wife, but his claim for compensation for pre-trial detention was dismissed by the domestic court because there was still suspicion surrounding his involvement in the death. This was held to be a violation of Article 6(2):
The voicing of suspicions regarding an accused's innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final.[203]
However, his claims for pecuniary loss, including loss of earnings, were rejected The violation found by the Court does not concern the lawfulness of the detention on remand; there is therefore no direct causal connection...[204]
6.131 A breach of Article 6(2) resulted in a substantial award in Allenet de Ribemont v France.[205] The violation arose from the identification of the applicant, at a press conference held by the Minister of the Interior, as an instigator to the murder of an MP.[206] The Strasbourg Court found a violation of Article 6(2) because the statements amounted to a declaration of the applicant's guilt which "encouraged the public to believe him guilty" and "prejudged the assessment of facts by the competent judicial authority". In addition, the Court found a violation of Article 6(1) for the unreasonable delay in the domestic proceedings. The applicant claimed pecuniary and non-pecuniary damages amounting to 10,000,000 French francs (£1,309,600). He claimed that the statements had caused his insolvency and made it difficult for him to find employment, and that he and his family suffered injury to their reputation. The Court made a global award of 2,000,000 French francs (£261,920) under both heads on an "equitable basis". It accepted that there was some pecuniary loss in that the statements
diminished the trust placed in him by the people he did business with and thus made it difficult for him to pursue his occupation.[207]
In relation to non-pecuniary loss it commented adversely on the conduct of the respondent State:
Although the fact that [the deceased] was well known, the circumstances of his death and the stir it caused certainly gave the authorities good reason to inform the public speedily, they also made it predictable that the media would give extensive coverage to the statements about the inquiry under way. The lack of restraint and discretion vis-à-vis the applicant was therefore all the more reprehensible.[208]
(9) Right to be informed of criminal charges
6.132 Article 6(3)(a) guarantees to everyone charged with a criminal offence, the right:
to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.
6.133 In Brozicek v Italy,[209] the applicant, who did not understand Italian, was charged with offences in Italy, notified in Italian, and convicted in his absence. There was a dispute as to the extent of his knowledge of the proceedings, but the Strasbourg Court decided that he had not waived his right to participate. Although it acknowledged that it had no power to quash the conviction, and that the applicant must have suffered some degree of non-pecuniary damage, the Court held that that the judgment provided sufficient just satisfaction.[210]
6.134 This may be contrasted with Pélissier and Sassi v France.[211] The applicants in this case were originally charged with fraud-related offences in connection with a criminal bankruptcy. Though they were acquitted, an appeal by the prosecution resulted in their conviction for aiding and abetting the concealment of assets. They only learnt of this 're-characterisation' of the charges against them when the court of appeal gave its judgment. The Strasbourg Court found that there had been violations of Article 6(3)(a) and Article 6(1).[212] The applicants were each awarded 90,000 French francs (£8,600) in respect of their pecuniary and nonpecuniary loss;[213] the Court noted that it was not unreasonable to regard the applicants as having suffered a loss of real opportunities.
(10) Right to a defence
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
(a) Pecuniary loss
6.136 Claims for pecuniary loss for violations of the right to a defence have in general not been successful. These claims often fail due to the absence of a causal link between the violation found and the pecuniary damage alleged.[214] For example, in Maxwell v United Kingdom,[215] the applicant's request for legal aid in order to appeal his conviction was denied and this amounted to a violation of Article 6(3)(c). The Court rejected the applicant's claim for pecuniary damage because it could not speculate as to the outcome of the appeal had legal aid been granted.
(b) Non-pecuniary loss
6.137 In many cases, the Strasbourg Court has refused to award damages for nonpecuniary injury, stating that the finding of a violation is sufficient just satisfaction for any non-pecuniary damage.[216] In some cases, the Court also justifies its refusal on causation grounds. For example, in Benham v United Kingdom,[217] where the applicant had been imprisoned for failure to pay rates, the Court declined to speculate as to whether the order for detention would have been made if the applicant been represented at the hearing.[218]
6.138 However, non-pecuniary damages have been successfully recovered in a number of instances.[219] In Artico v Italy,[220] the applicant had been imprisoned for fraud offences. He was not legally represented in his first unsuccessful appeal, because his legal aid lawyer refused to act, but he was represented in later proceedings when some of the convictions were quashed. The Strasbourg Court awarded the applicant 3 million Italian lire (£1,370) for non-pecuniary damage, noting that
... the applicant remained without a lawyer, other than nominally, despite his pressing and repeated complaints and representations. In all probability he was left with a distressing sensation of isolation, confusion and neglect.[221]
6.139 In Goddi v Italy,[222] the Strasbourg Court also took account of "loss of opportunity" in its award of 5,000,000 lire (£2,200), apparently for pecuniary and non-pecuniary loss. It stated:
The applicant maintained that if he had had an opportunity of having his defence adequately presented, he would certainly have received a lighter sentence and the Court of Appeal would probably have done no more than confirm the judgment of the Forli Regional Court.
The Court cannot accept so categorical an allegation. However, it has to be remembered that the sentence imposed at first instance was substantially increased by the Bologna Court of Appeal; and the outcome might possibly have been different if Mr Goddi had had the benefit of a practical and effective defence. In the present case such a loss of real opportunities warrants the award of just satisfaction.
To this has to be added the non-pecuniary damage which the applicant undoubtedly suffered as a result of the violation of Article 6(3)(c).[223]
6.140 Similarly in Perks and others v United Kingdom,[224] another case of imprisonment for non-payment of local taxes, the claims of all but one of the applicants for damages were dismissed on the same basis as in Benham v United Kingdom. In the case of Perks himself, however, the Government accepted that given his personal circumstances and health problems, it was unlikely that he would have been imprisoned had these considerations been brought to the attention of the court by a legal representative. The Court awarded him £5,500 non-pecuniary damages.[225]
(11) Examination of witnesses
6.141 Everyone charged with a criminal offence has, under Article 6(3)(d), the right:
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
6.142 As in other parts of Article 6, claims for damages under this head raise the issue whether the applicant would not have been convicted if there had been no breach. This issue is best tested by a retrial which complies with the applicant's Convention rights. If the applicant is convicted again, the claim for pecuniary damages will be rejected.[226]
6.143 However, the Strasbourg Court has no power to direct a retrial.[227] As a result it has had to evaluate the likelihood of convictions under hypothetical circumstances. This has produced apparently contradictory approaches.[228] In some cases, the Court has shown a willingness to recognise "a loss of opportunity" and award damages. In others, it has refused to speculate as to the outcome in the absence of a violation, and refused an award.
6.144 An example of the former is Delta v France,[229] in which the Strasbourg Court found a violation of Article 6(3)(d) taken with Article 6(1), when the applicant's conviction for robbery was based on the written statements of the victim and her friend, taken in the absence of the defence; the Court awarded damages for loss of opportunity. This reasoning was followed in Vidal v Belgium.[230] However, in Saidi v France[231] the Court declined to speculate as to what the result would have been in the absence of a violation and therefore refused to award damages.
(12) Right to an interpreter
to have the free assistance of an interpreter if he cannot understand or speak the language used by the court.
6.146 The question of damages where this right is infringed was considered by the Strasbourg Court in Luedicke, Belkacem and Koç v Germany.[232] The applicants, who did not understand German, were tried in Germany for various criminal offences. Following their convictions, they were ordered to pay the costs of the interpreters that had been used in the criminal proceedings. The Strasbourg Court held that requiring the applicants to pay the costs of interpretation in their criminal trials was contrary to Article 6(3)(e). It ordered the state to reimburse the applicant for the interpretation costs.
7. ARTICLE 7
6.147 Article 7(1) of the Convention states:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
6.149 In Welch v United Kingdom,[233] the applicant, a convicted drug trafficker, was made subject to a confiscation order in an amount of over £50,000, under section 1 of the Drug Trafficking Offences Act 1986.[234] However, as the offences which formed the basis of his conviction predated the enactment of the 1986 Act, the Strasbourg Court held that the imposition of the confiscation order violated Article 7 of the Convention. He failed to establish claims for pecuniary loss under a number of heads, the Strasbourg Court noting that he had not exercised his right to apply for a variation of the order. His claim for non-pecuniary loss also failed, and claims on behalf of his wife and children failed on the grounds that they were not "victims".[235] The Court did not identify the "circumstances" which influenced its decision. It may have been influenced by the fact that the applicant was a convicted drug trafficker and the fact that the confiscation order had not been, and would not be, enforced.[236]
6.150 Similarly, in Jamil v France,[237] the applicant, a convicted drug trafficker, was sentenced to eight years' imprisonment and a fine, subject to a further two years in default of payment.[238] On the date of the relevant offences, the maximum period of imprisonment in default was four months. In these circumstances, the Strasbourg Court found a violation of Article 7.[239] The Court held that the finding was sufficient just satisfaction, as he did not serve any period of imprisonment under the warrant of committal for default.[240]
6.151 In Baskaya and Okçuoglu v Turkey,[241] the Strasbourg Court found that there had been breaches of Article 6 and Article 10. The applicant, the owner of a publishing house, was convicted of disseminating propaganda against the indivisibility of the Turkish State; he was fined and sentenced to five months' imprisonment. The Court held that the composition of the court that convicted the applicant violated Article 6; that the conviction and fine violated Article 10;[242] and that the imposition of the prison sentence violated Article 7. The Court held that the applicant must have suffered distress that could not be compensated solely by the finding of a violation, and awarded him 45,000 French francs (£4,300).
8. ARTICLE 8
6.152 The right to respect for one's private and family life is protected by Article 8:
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.
(1) Interference with correspondence
6.154 A number of cases concern the correspondence of prisoners. The claims tend to be for non-pecuniary damage, such as the distress and frustration encountered in not being able to correspond freely. It is rare for these claims to be successful. The Court normally holds that the judgment itself provides sufficient just satisfaction for the alleged non-pecuniary damage. In some cases, the Court has observed that the non-pecuniary damage was not of such "intensity" as to warrant an award.[243]
6.155 The first such case was Golder v United Kingdom.[244] The applicant was refused permission by the Home Secretary to consult a solicitor with a view to bringing a libel claim against one of the prison officers. The Court held that this violated the applicant's right to respect for correspondence as well as his right of access to a court as protected by Article 6(1). However, it made no award,[245] holding that the finding was just satisfaction. No further reasons were given.
6.156 The Court also rejected the claim for non-pecuniary damage, on similar facts, in Silver and others v United Kingdom (Article 50),[246] but it expressed its reasoning in more detail:
It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage. As the figures supplied by the Government reveal, the number of letters in respect of which the Court found a violation as regards each of the applicants was very small compared with the number of letters which they were allowed to send.
It also noted that
substantial changes were introduced as a result of the applications in which this case originated and do appear in principle to have led to a significant improvement.[247]
...whatever Mr Carne's motives may have been, the subterfuge to which he resorted nevertheless constituted a transgression of the prison regulations which, in this respect, have not been found by the Court to be incompatible with the Convention. Having regard to all the circumstances, the Court considers that it is not necessary to make an award in respect of this claim.[248]
6.158 There are exceptions to the general approach. In Messina v Italy,[249] the applicant was detained in connection with allegations of drug offences and involvement with a mafia-type organisation. During his detention, the applicant complained that he experienced problems in receiving his correspondence. The Strasbourg Court found a violation of Article 8 as regards his right to respect for correspondence, and of Article 6(1) in that the criminal proceedings exceeded a reasonable length. The applicant referred to his inability to lead a normal family life and the feelings of bitterness and persecution which resulted. The Court awarded 5,000,000 Italian lire (£1,990) for non-pecuniary damage. The reasons for this exceptional treatment were not explained.[250]
(2) Children in public care
6.159 In a number of cases, violations of Article 8 have been concerned with the taking of children into care by public authorities. In these cases, it is the manner of the decision, rather than the justification for the decision to place the children in care, which is the subject-matter of the dispute. For example, the Court has found violations of Article 8 on account of the undue length of proceedings,[251] or for insufficient involvement of the parents in the decision-making process.[252]
6.160 As has been noted,[253] these cases seem to form a distinct category. The applicants, who are usually the parents of the children in question, have generally been successful in recovering substantial damages. In making such awards, the Strasbourg Court has acknowledged the considerable distress and in some cases the loss of opportunities suffered, and has shown a greater willingness to speculate than in other types of case.[254] The Court has been prepared in some cases to compensate the applicant for a 'loss of relationship' with his or her child. Perhaps these features of the Court's treatment of the case-law in this area can be attributed to the importance of the right in question and the lasting impact that a decision to place children in care will have on both the applicants and their children.[255]
6.161 Many of the cases have been discussed under Article 6.[256] A number relate to the United Kingdom. Typical is W v United Kingdom,[257] where the Strasbourg Court awarded £12,000 in damages for the violations of Article 6(1) and Article 8, as a result of the procedures followed by the local authority in making decisions as regards the care of the applicant's child and the insufficiency of remedies available to challenge those decisions. Other cases have resulted in similar awards ranging from £8,000 to £12,000.[258]
6.162 The case-law also includes numerous applications brought against Sweden for similar procedural violations arising from care proceedings. In Olsson v Sweden,[259] the Strasbourg Court awarded 200,000 Swedish krona (£18,710) for non-pecuniary damage resulting from the violation of Article 8 in the manner in which decisions of the local authority relating to the care of her children were implemented. The applicants' children were placed separately at a great distance from the applicants' home, and restrictions were placed on the applicants' visits to them. The Strasbourg Court noted that these matters caused the applicants considerable inconvenience and substantial anxiety and distress. In Eriksson v Sweden,[260] a mother was awarded 200,000 Swedish krona (£18,470) for non- pecuniary damage while her daughter received 100,000 Swedish krona (£9,235). The Strasbourg Court found that they both suffered substantial anxiety and distress as a result of the violations of Article 6(1) and Article 8 found due to the unavailability of judicial remedies for challenging the restrictions imposed on access between the child and her mother. Further, in Margareta and Roger Andersson v Sweden,[261] the Strasbourg Court held that restrictions placed on access and correspondence between a mother and her son who was in care violated their right to respect for family life. Mother and son were each awarded 50,000 Swedish krona (£4,680) to compensate for the considerable distress and anxiety which they suffered as a result of the violations.
6.163 Restrictions placed on access to the records of children taken into care have also given rise to violations of Article 8. In Gaskin v United Kingdom,[262] the applicant had been in public care and foster homes until he reached the age of majority. When he tried to obtain access to his records, he was only permitted to see those for which the contributors had given their consent. The Strasbourg Court held that the absence of a procedure whereby an independent authority could decide whether or not to grant access if a contributor could not be found or refused his or her consent amounted to a violation of the applicant's right to respect for his private and family life. A claim to loss of earnings was rejected for lack of a causal link between the loss claimed and the violation.[263] As regards nonpecuniary damage, the Court acknowledged that the applicant may have suffered some distress and anxiety as a result of the violation and awarded £5,000.
6.164 In McMichael v United Kingdom,[264] the applicants trying to gain access to records were the parents of a child taken into care. The Strasbourg Court found violations of Article 6(1) and Article 8 and awarded the applicants jointly £8,000 for non-pecuniary damage. The Court acknowledged that these applicants had not suffered the same loss of opportunities as those applicants who were denied access to remedies. However, the Court found itself unable to state with certainty that no practical benefit would have accrued had the violation not occurred. In this respect, part of the trauma and anxiety experienced in the care proceedings was attributable to the breach. For these reasons, the Court made the award.
(3) Adoption and custody disputes
6.165 The Strasbourg Court has also been prepared to make significant awards for non-pecuniary loss in relation to adoption and custody disputes. In Hokkanen v Finland[265] the applicant complained that the authorities had failed to enforce his right to custody of his daughter. Instead they had allowed the grandparents to keep her in their care and prevent his access to her in defiance of a number of court orders, and had eventually transferred custody to the grandparents. The Strasbourg Court found that the failure to enforce the applicant's right of access for over three years was a violation of Article 8.[266] The Court noted that there was
no reason to doubt that the applicant suffered distress as a result of the non-enforcement of his access rights and that sufficient just satisfaction would not be provided solely by the finding of a violation.
The applicant was awarded 100,000 Finnish markka (£13,225) for nonpecuniary damage.
6.166 In Keegan v Ireland[267] the Strasbourg Court found that the secret placement of the applicant's daughter for adoption without his knowledge or consent, which had led to the daughter bonding with the prospective adopters, and to the making of an adoption order, amounted to a violation of Article 8. In addition, the failure to allow the applicant to intervene in the adoption proceedings breached Article 6(1).[268] The Strasbourg Court awarded the applicant 2,000 Irish pounds (£1,970) for pecuniary loss (the costs involved in the guardianship and custody proceedings) and 10,000 Irish pounds (£9,845) for non-pecuniary loss. It noted
...damages are appropriate in this case having regard to the trauma, anxiety and feelings of injustice that the applicant must have experienced as a result of the procedure leading to the adoption of his daughter as well as the guardianship and custody proceedings.[269]
(4) Telephone tapping and searching of premises
6.167 Breaches of Article 8 have been established in cases involving the tapping of telephones and the searching of premises. Many of the applicants in these cases have been convicted of crimes as a result of the evidence so obtained. However, claims for pecuniary or non-pecuniary damages have usually failed on causation grounds, or simply on the basis that the finding of violation is just satisfaction. Although the reasons are not expressed, it seems likely that the criminal conduct of the applicant is taken into account as a reason for refusing compensation.[270] The Court does not appear to regard the unlawfulness of the evidence as undermining the conviction.[271]
6.168 Thus, in Kruslin v France,[272] the Court found a violation of Article 8 in respect of a telephone conversation between the applicant and a third party whose line was tapped. This evidence led to the applicant's conviction for armed robbery. He claimed compensation of 1,000,000 French francs (£102,270) for his prison sentence of 15 years. The Court made no award, holding that in the circumstances the finding of a violation provided sufficient just satisfaction.[273]
6.169 In contrast, the applicant in Halford v United Kingdom[274] was successful in recovering damages for a violation of Article 8. She was a former Assistant Chief Constable who had brought a claim for sex discrimination against the police. She complained of the taping of phone conversations made from her office and home in order to gather information to use against her. The Court found violations of Article 8 and Article 13, and awarded £10,000 for non-pecuniary loss. The Court noted there was no evidence establishing that the applicant's stress was directly attributable to the breach, rather than by the ongoing conflicts with the police. However, it took account of the improper purpose of the interceptions and the seriousness of the violation.[275]
6.170 Violations of the right to respect for private life and for home and correspondence may also occur when state authorities exercise their powers to search an individual's home or office for evidence of a crime. Funke v France,[276] Crémieux v France,[277] and Miailhe v France[278] involved very similar violations of Article 8. French customs officers, supported by police, searched the homes of the applicants and removed evidence of potential offences related to exchange controls. Under the relevant legislation, there was no requirement that a judicial warrant be obtained in advance of the search, and the Strasbourg Court found that Article 8 had been violated. Mr Funke, who claimed compensation on the ground that the breaches of the Convention had had "a serious impact on his person and on that of his wife as well as on their private life", was awarded 50,000 French francs (£5,735) for non-pecuniary loss. Mr Miailhe, the Philippine honorary consul, his wife and his mother claimed both pecuniary loss and non-pecuniary loss. The claims to pecuniary loss[279] were rejected for lack of causation. The claims for non-pecuniary loss were more successful. They were made on the grounds (for Mr Miailhe) of the loss of his consular duties (for the two Mrs Miailhe) of the effect on their social position at the material time and the great age of the elder Mrs Miailhe "whose personal souvenirs had been violated without notice and without any consideration for her". The Strasbourg Court noted simply that "the applicants must have sustained non-pecuniary damage for which the finding of a breach does not on its own afford sufficient reparation". It awarded Mr Miailhe 50,000 French francs (£5,735), and each of the Mrs Miailhe 25,000 French francs (£2,870). In contrast, claims made by Mr Crémieux for non-pecuniary loss were rejected on the ground that the finding of a violation was sufficient just satisfaction. The judgment does not explain why Mr Crémieux failed where the two other applicants succeeded, though it is notable that Mr Crémieux had apparently not put forward any particular grounds justifying an award of non-pecuniary loss.[280]
6.171 In Niemietz v Germany[281] the office of Mr Niemietz, a German lawyer, was searched by the German authorities for evidence which might identify a suspect. The Strasbourg Court found that there had been a violation of Article 8: the warrant was framed in particularly wide terms, requiring the search and seizure of documents without any limitation, and the search itself had impinged on professional secrecy to an disproportionate extent. However, the Court rejected a claim for non-pecuniary loss, which was sought to compensate the damage to the reputation of the applicant's practice, noting that its finding of a violation constituted sufficient just satisfaction.
(5) Immigration cases
6.172 The right to respect for private and family life can be called into question when a person is either denied access to a country or deported from a country where his or her family resides. These circumstances have given rise to breaches of Article 8 in a number of cases. It is difficult to find any defining feature of the Court's treatment of its discretion to award damages in these cases. However, in two cases where the issue was considered, the Court did award damages.[282]
6.173 In Berrehab v Netherlands,[283] the first applicant was a Moroccan national who was refused a residence permit in the respondent State after divorcing from his Dutch wife. Their daughter, who lived with her mother, was the second applicant. The Court held that the first applicant's expulsion from the respondent State violated their right to respect for family life. The Court awarded the applicants 20,000 Dutch guilders (£5,530) for the non-pecuniary damage which they suffered as a result of their separation. In addition, the award provided partial compensation for the travel expenses incurred in visits between the first and second applicant.[284]
6.174 In Moustaquim v Belgium,[285] the applicant was a Moroccan national who had lived in Belgium with his family from a very young age. As a juvenile, he was convicted of various crimes and, after completing his sentence, he was deported back to Morocco. The Court found a violation of his right to respect for his private and family life under Article 8. He was awarded 100,000 Belgian francs (£1,700) for non-pecuniary loss; but his claim for pecuniary loss, based on the loss of the chance of pursuing a normal occupation in Belgium, was refused on causal grounds.
(6) Article 8 and sexual orientation and identity.
6.175 Breaches of Article 8 have also been found where the law criminalises the
conduct of homosexuals when the equivalent heterosexual conduct would not
amount to a criminal offence. In Dudgeon v United Kingdom,[286] the Strasbourg
Court found that the applicant had suffered a breach of his rights under Article
8 as a result of the existence in Northern Ireland of laws making certain
homosexual acts committed in private between consenting adult males criminal
offences.[287] Following the judgment of the Court, the law was changed in
Northern Ireland to 'decriminalise' such acts. The Court rejected the applicant's
claim for non-pecuniary loss, noting that the applicant had achieved his aim of
changing the law: in consequence the judgment that there had been a violation
could be considered to constitute sufficient just satisfaction.
6.176 The same complaint was made in Norris v Ireland.[288] In this case, as in Dudgeon v United Kingdom, the applicant complained of legislation penalising homosexual acts in private. Unlike Mr Dudgeon, he had not been the subject of any police investigation. However, the Court accepted that its finding in Dudgeon was not dependent upon that factor; the legislation itself constituted a continuing interference with his right to respect for his private life. The Irish Government, unlike the United Kingdom Government in Dudgeon, had not yet indicated its intention to change the law. Nevertheless, the Court held that the finding of a violation was sufficient just satisfaction:
As in the Marckx case, it is inevitable that the Court's decision will have effects extending beyond the confines of this particular case, especially since the violation found stems directly from the contested provisions and not from individual measures of implementation. It will be for Ireland to take the necessary measures in its domestic legal system to ensure the performance of its obligation under Article 53... For this reason and notwithstanding the different situation in the present case as compared with the Dudgeon case, the Court is of the opinion that its finding of a breach of Article 8 constitutes adequate just satisfaction...[289]
6.177 In contrast, in ADT v United Kingdom[290] the applicant had been convicted of gross indecency, on the basis of a video containing footage of the applicant and up to four other men engaging in acts of oral sex and mutual masturbation. The acts took place in his home and were not visible to anyone else. He was sentenced and conditionally discharged for two years. The Strasbourg Court found a violation of Article 8:
The activities were... genuinely "private", and the approach of the Court must be to adopt the same narrow margin of appreciation as it found applicable in other cases involving intimate aspects of private life.[291]
6.179 The Strasbourg Court held in Smith and Grady v United Kingdom[292] that there had been a breach of Article 8 because of the investigations conducted into the applicants' sexual orientation by the armed forces and as a result of their subsequent discharge from the armed forces on the grounds of their homosexuality. Both applicants made detailed submissions in respect of the loss they claimed to have suffered.[293] The first applicant claimed a total of £590,222.40 for pecuniary loss, in respect of her past loss of earnings, her anticipated future loss of earnings and her loss of pension rights. She also claimed £30,000 for non-pecuniary loss in relation to the humiliation, anxiety and psychological problems she had suffered in consequence of her investigation and discharge from the armed forces. The second applicant claimed £784,714.09 for pecuniary loss for future loss of earnings and loss of pension rights, and £20,000 for non-pecuniary loss.
6.181 In relation to non-pecuniary loss, the Strasbourg Court noted that
...the investigations and discharges ... were profoundly destabilising events in the applicants' lives which had and, it cannot be excluded, continue to have a significant emotional and psychological impact on each of them. (paragraph 13).
Both applicants were awarded £19,000 for non-pecuniary loss. The Court rejected a claim for interest on that sum, noting that "It does not consider an award of interest on this sum to be appropriate given the nature of the loss to which it relates."
6.182 B v France[294] concerned an application by a transsexual, who alleged that the failure of the French authorities to recognise her current status as a woman violated her right to respect for her private life. The Strasbourg Court found that her rights under Article 8 had been violated. The applicant claimed for pecuniary loss suffered due to the difficulties she found in obtaining employment. She also claimed 1,000,000 French francs (£119,410) for non- pecuniary loss. Though rejecting her claims for pecuniary loss for lack of causation, the Strasbourg Court awarded her 100,000 French francs (£11,940), considering that she had suffered non-pecuniary loss as a result of the situation found to be contrary to the Convention but giving no further reasons for its award.
(7) Environmental claims
6.183 The Strasbourg Court has been prepared to recognise that applicants' rights under Article 8 have been violated where their life has been disrupted as a result of environmental pollution, or where the State has failed to inform them of the hazards posed by a chemicals factory. In Lopez Ostra v Spain[295] a waste treatment plant was built close to the applicant's home. It started to operate without the necessary licence, and, due to a malfunction, released gas fumes, pestilential smells and contamination which caused health problems to many people in the area. The applicant and her family were evacuated and re-housed (free of charge) until the plant was partially shut down,[296] and they moved back to their home where they lived for three years before finally moving out. The Court held that Spanish authorities had violated Article 8 by failing to take any measures to protect the applicant's right to respect for her home by bringing the nuisance to an end. The applicant claimed 25,010,000 Spanish pesetas (£121,340) for pecuniary and non-pecuniary loss. The claim included compensation for distress, anxiety due to her daughter's illness, the inconvenience of the undesired move and the cost of her new house. The Court rejected the greater part of this claim, but noted
[The applicant's] old flat must have depreciated and the obligation to move must have entailed expense and inconvenience. On the other hand, there is no reason to award her the cost of her new house since she has kept her former home. Account must be taken of the fact that for a year the municipal authorities paid the rent of the flat occupied by the applicant and her family in the centre of Lorca and that the waste-treatment plant was temporarily closed by the investigating judge on 27 October 1993.
The applicant, moreover, undeniably sustained non-pecuniary damage. In addition to the nuisance caused by the gas fumes, noise and smells from the plant, she felt distress and anxiety as she saw the situation persisting and her daughter's health deteriorating. (Paragraph 65).
Noting that the heads of damage "do not lend themselves to precise quantification" the Strasbourg Court awarded her 4,000,000 pesetas (£19,410).
6.184 Similarly, in Guerra v Italy[297] the applicants lived close to a chemical factory which released large quantities of flammable gas and toxic chemicals in the course of its production process.[298] The applicants complained that the authorities had not taken the appropriate steps to reduce the risk of pollution from the plant, and that the State had failed to take steps to provide information about the risks and how to proceed in the event of a major accident. The Strasbourg Court held that Italy had failed to fulfil its obligation to secure the applicants' right to respect for their private and family life in breach of Article 8. The applicants claimed 20,000,000,000 lire (£7,245,610) for 'biological damage'. This was rejected, on the grounds that the applicants had not shown that they had suffered any pecuniary damage as a result of the lack of information of which they complained. However, the applicants were awarded 10,000,000 lire (£3,620) each for non-pecuniary damage.
(8) Miscellaneous cases
6.186 In Z v Finland[299] the applicant was the ex-wife of a man convicted of a number of sexual offences. During the investigation it became clear that he was HIV positive (as was the applicant). He was then charged with attempted manslaughter, and the authorities sought information on the date when he became aware of his HIV status. Medical advisers treating the applicant and her husband were called to testify against him, and the police seized her medical records. On Appeal, the Court of Appeal disclosed the applicant's identity and HIV status in the course of its judgment. Both facts were reported widely in the press. The Court also ruled that the proceedings should be kept confidential for no more than 10 years. The Strasbourg Court held that the disclosure of the applicant's identity and HIV status violated Article 8;[300] and that the release of transcripts of the evidence given by her advisers to the public in ten years would, if implemented, violate Article 8. The applicant claimed substantial nonpecuniary loss. The Strasbourg Court accepted that the applicant must have suffered non-pecuniary loss as a consequence of the disclosure, and that a finding of a violation would not provide sufficient just satisfaction. It rejected the arguments of the Finnish government that any award should be less that the amount paid to the four victims of the applicant's husband, noting:
In assessing the amount, the Court does not consider itself bound by domestic practices, although it may derive some assistance from them.
The Court awarded the applicant 100,000 Finnish markka (£10,065).
6.187 Marckx v Belgium[301] concerned a challenge by a mother and her illegitimate daughter to various aspects of Belgian law which discriminated against illegitimate children, and in particular the restrictions on their inheritance rights, failure to recognise maternal affiliation in the absence of a formal act or recognition, and limitations on the extent of their family relationships. The Strasbourg Court found that the applicants' rights to respect for the family in Article 8 had been violated, and further that there was a violation of Article 14 taken in conjunction with Article 8. However, the Court rejected the applicants' request that they each be granted one Belgian franc "as compensation for moral damage". Instead, it held that the finding of several violations against the applications amounted to sufficient just satisfaction for them.[302]
6.188 In Gillow v United Kingdom[303] the applicants complained that they had been refused both a permanent and a temporary licence to occupy the house they owned on Guernsey, and further that they were prosecuted for occupying it unlawfully. The Strasbourg Court found that Article 8 had been violated. The applicants' claims for pecuniary loss of £114,000 on account of the loss sustained on the sale of their property, the costs of a replacement property, and their loss of earnings, were rejected as being unsubstantiated.[304] However their claims for non-pecuniary loss (or 'moral damage') were more successful. The Court rejected the government's submission that the finding of a violation would be adequate just satisfaction.
For one year, [the applicants] lived with a feeling of insecurity, prompted by uncertainty as to whether they would finally be permitted to stay in their home or be expelled from it. Furthermore, their prosecution for unlawful occupation of their home added to their already precarious situation ... In the outcome, they felt obliged to dispose of their home in Guernsey and must have experienced considerable stress and anxiety in consequence of that in settling elsewhere.
The Strasbourg Court awarded them £10,000.
6.189 In Rotaru v Romania[305] the Romanian Intelligence Service had a file on the applicant which recorded, wrongly, that he had been a member of a neo-nazi student group. This information was used against the applicant in civil proceedings he brought in connection with a prison sentence he had served under the Communist regime. An action by the applicant against the Intelligence Service for defamation was thrown out, and his attempts to rectify the record were equally unsuccessful. The Strasbourg Court held that the holding and use by the Intelligence Service of information which the applicant had no opportunity to refute violated the applicant's right to respect for his private life. The Court also held that there had been violations of Article 13 and Article 6. The applicant claimed 20,000 million Romanian lei (£651,020) in damages for non-pecuniary loss for the damage to his reputation suffered as a result of the publication of false information about him and the authorities' refusal for several years to correct the error. The Court accepted that the applicant must have suffered non-pecuniary loss and awarded the applicant 50,000 French francs (£4,585), to be converted into Romanian lei at the date of settlement.
9. ARTICLE 9
6.190 Article 9(1) of the Convention states:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
The Court has dealt with damages for a violation of Article 9 in a number of cases against Greece.
6.191 In Kokkinakis v Greece,[306] the applicant was convicted for encouraging a person to change her Orthodox Christian beliefs and to join the Jehovah's Witnesses; he was sentenced to three months' imprisonment (converted to a pecuniary penalty of 400 Greek drachmas (approximately £1) per day's imprisonment) and a fine of 10,000 Greek drachmas (£30).[307] The Strasbourg Court held that the conviction violated the applicant's right to manifest his religion. The applicant claimed 500,000 Greek drachmas (£1,370) as damages for non-pecuniary loss. The Court awarded 400,000 Greek drachmas (£1,090). A similar conclusion was reached in Larissis v Greece,[308] where the second and third applicants each recovered 500,000 Greek drachmas (£1,370) in damages for non-pecuniary loss. In neither case did the Court identify the nature of the non-pecuniary loss or the basis on which damages were assessed.
6.192 In contrast, in Manoussakis v Greece,[309] the applicants were convicted for operating a place of worship without the prior authorisation of the relevant ecclesiastical and governmental bodies. They were each sentenced to three months' imprisonment (converted to pecuniary penalties of 400 Greek drachmas (£1) per day's imprisonment) and fined 20,000 Greek drachmas (£50).[310] The Court held that the convictions violated the applicants' freedom to manifest their religion in worship and observance. The applicants claimed 6,000,000 Greek drachmas (£14,680) as damages for non-pecuniary loss. The Court rejected this claim, holding that the finding of a violation of Article 9 was sufficient just satisfaction. There is no indication in the judgment why this case was treated differently to the others. Another case, Valsamis v Greece,[311] concerned a one day suspension of a children of Jehovah's Witnesses for refusing to take part in a school parade. Given the short period involved, the refusal of a monetary award is understandable.
10. ARTICLE 10
6.193 Article 10 of the Convention states:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
(1) Pecuniary loss
6.195 Thus in Lingens v Austria[312] the applicant, a journalist and magazine editor, was convicted for describing the Austrian chancellor as an immoral, undignified and base opportunist. The applicant was fined 20,000 Austrian schillings (£990) (reduced on appeal to 15,000 schillings (£745)) and ordered to pay the costs of the criminal proceedings. He was also ordered to publish a copy of the court's judgment in Profil, the magazine in which the offending material had been published. In these circumstances the Strasbourg Court held that there had been a violation of Article 10.
The Court cannot speculate on the amount of profit Mr Lingens might have derived from any paying advertisements that might hypothetically have been put in the magazine in place of the judgment of 29 October 1981. But it does not rule out that the applicant may thereby have suffered some loss of opportunity which must be taken into account. There are also the costs indisputably incurred for reproducing the judgment in question. The foregoing items cannot be calculated exactly. Assessing them in their entirety on a equitable basis, the Court awards Mr Lingens compensation of 25,000 Schillings under this head.[313]
6.197 In Open Door and Dublin Well Woman v Ireland,[314] the applicant, a non-profit organisation that provided counselling services to pregnant women, was made subject to an injunction against providing information about abortion clinics in the United Kingdom. The Court held that the injunction violated Article 10. The applicant claimed 62,172 Irish pounds (£66,840) as damages for pecuniary loss. This sum represented the loss of income flowing from the discontinuance of counselling services. The Government submitted that the claim should be rejected inter alia because it was inconsistent with the applicant's status as a nonprofit organisation. The Court rejected this argument, holding "that even a nonprofit- making company such as the applicant can incur losses for which it should be compensated."[315] It acknowledged that the method by which the applicant had calculated its pecuniary loss was unclear, but accepted that "the discontinuance of the counselling service must have resulted in a loss of income."[316] It awarded 25,000 Irish pounds (£26,880).
6.198 In Baskaya and Okçuoglu v Turkey,[317] the two applicants, who had published a book,[318] were convicted by the Istanbul National Security Court for disseminating propaganda against the indivisibility of the Turkish state. They were sentenced to terms respectively of 20 months and 5 months, and fined. The first applicant was dismissed from his professorship at the University of Ankara, and a request for an order of seizure in respect of the sixth edition of the book was granted. The Strasbourg Court found violations of Articles 6, 7, and 10. By way of pecuniary damages it awarded each of the applicants the same amount as the fines they had paid (41,666,666 Turkish lira, or 7,400 French francs (£700)). Further claims were made, totalling over 1,400,000 French francs (£133,825) for loss of income from expected sales, and loss of earnings. The Court noted that these sums could not be calculated with precision. It awarded the applicants 67,400 French francs (£6,440) and 17,400 French francs (£1,660) respectively, which included the fines, and was assessed on an "equitable basis". There is no other indication of how these figures were arrived at.[319]
6.199 In Bergens Tidende v Norway[320] the applicants, a daily newspaper, its editor-in-chief and a journalist had been ordered to pay substantial damages for defamation to a cosmetic surgeon following a series of articles on operations performed by the surgeon. The Strasbourg Court found that there had been a violation of Article 10.[321] The applicants sought compensation for economic loss, in the form of repayment of the damages, costs and expenses paid to the surgeon. The government did not object, and the full amount sought was awarded. They also sought interest on that sum at the estimated average rates applied by domestic commercial banks at the time. The Court, acknowledging that the period between payment of the damages and the award of just satisfaction would have caused the applicants additional economic loss, awarded the applicants a further 745,700 Norwegian kroner (£54,730), expressed to calculated on an equitable basis and by reference to the rates of inflation [sic] in Norway in the relevant period.
6.200 There are other cases in which applicants have failed to establish a causal link between an alleged pecuniary loss and the violation of Article 10.[322] For example, in Vereinigung Demokratischer Soldaten Österreichs and Gubi v Austria,[323] the first applicant, the publisher of a magazine entitled Der Igel, requested the Minister for Defence to arrange for the distribution of the magazine amongst soldiers together with two other magazines that were periodically distributed.[324] The Minister rejected this request in circumstances that violated Article 10. The applicant claimed 14.8 million Austrian schillings (£858,125) as damages for pecuniary loss. This sum represented lost sales income. The Court rejected this claim, on the grounds that the violation of Article 10 related only to the distribution of Der Igel, and, although the Minister could not refuse to distribute Der Igel, he was not obliged to buy it.
6.201 Similarly, in Informationsverein Lentia v Austria,[325] the applicant, Radio Melody GmbH, applied for a licence to operate a local radio station in Salzburg. The application was refused. The Court held that the operation of the licensing regulations violated the applicant's rights under Article 10. The applicant claimed approximately 5.5 million Austrian schillings (£300,000) as damages for loss of income "on the assumption that they would not have failed to obtain the [licence] applied for if the Austrian legislation had been in conformity with Article 10."[326] The Court rejected this claim, holding that the alleged loss was too speculative in view of the wide discretion in the licensing field. The Court rejected an identical claim in Radio ABC v Austria.[327]
(2) Non-pecuniary loss
6.202 Generally, the Court has not awarded damages for non-pecuniary loss in Article 10 cases. In Castells v Spain[328] the applicant, a senator, was convicted for publishing an article in which he suggested that Government personnel were responsible for a number of murders. His sentence - a term of imprisonment and disqualification from holding any public office - was stayed on appeal. In Jersild v Denmark[329] the applicant was convicted and fined for producing a television documentary in which racists had referred to ethnic minorities in extremely derogatory terms. In De Haes and Gijsels v Belgium[330] the applicants were convicted and fined for publishing an article in which they criticised a decision of the Antwerp Court of Appeal to award custody of young children to a suspected paedophile. In each of these cases the Strasbourg Court held that the finding of a violation of Article 10 was sufficient just satisfaction for any nonpecuniary loss that the applicants might have suffered.[331]
6.203 Awards for non-pecuniary loss have been made in cases where the violation resulted in the imprisonment of the applicants.[332] Thus, in Baskaya and Okçuoglu v Turkey,[333] the Court awarded the first and second applicants 40,000 French francs (£3,825) and 45,000 French francs (£4,300) respectively as damages for non-pecuniary loss. Similarly, in Incal v Turkey,[334] the Court made an award of 30,000 French francs (£3,210) to an applicant who had been imprisoned for a period of approximately seven months for preparing political leaflets that he intended to distribute.
11. ARTICLE 11
6.204 Article 11(1) of the Convention states:
Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
6.206 In Young, James and Webster v United Kingdom,[335] the applicants were dismissed by their employer, British Rail, for refusing to join a trade union. The applicants' dismissals were lawful as a matter of domestic law.[336] In the judgment of the Court, however, the dismissals violated the applicants' right of free association. The applicants sought damages for loss of earnings, loss of pension rights and loss of travelling privileges. Mr Young claimed £24,708, Mr James claimed £57,280 and Mr Webster claimed £6,914.[337] The Court accepted the claims, but it reduced the amounts for Mr Young (£17,626) and Mr James (£45,215) on the basis of figures proposed by the Government. The judgment does not make clear why the reduced figures were adopted.[338] The applicants also sought damages for non-pecuniary loss, citing "the harassment and humiliation... stress and anxiety" suffered.[339] The Court noted that the matters cited by the applicants did not lend themselves to a process of calculation; and on an "equitable basis" (without further explanation) awarded Mr Young £2,000; Mr James £6,000; and Mr Webster £3,000.
6.207 By contrast, in Ezelin v France[340] no award was made. The applicant was an advocate who was reprimanded for participating in a political demonstration against a judgment. He claimed for non-pecuniary loss on the basis that his reputation had been injured by the publicity given to the reprimand in legal journals. The Court refused the claim, holding that the finding was just satisfaction.
6.208 Two Turkish cases concerned the dissolution of political associations. In United Communist Party of Turkey v Turkey,[341] the Party ("TBKP") was dissolved by the Turkish Constitutional Court; its assets were confiscated and transferred to the Turkish Treasury.[342] The second and third applicants, who were respectively the Chairman and Secretary of the Party, were prohibited from holding a similar office in any other political party. The Court held that the dissolution of the first applicant and the prohibitions imposed on the second and third applicants violated their right of association.
The Court notes that the claim in issue is based on an imaginary application of the provisions in the law on political parties governing the grant, subject to certain conditions, of public aid to political parties as well as on an estimation of what contributions from the TBKP's members and supporters would have been. The Court cannot speculate on the effect of those provisions as applied to the TBKP or on the amount of any contribution it might have received. Consequently, the application must be dismissed, there being no causal link between the violation found and the alleged damage.[343]
It also rejected the claims by the individual applicants for damages for nonpecuniary loss, to reflect their exclusion from any form of political activity, on the basis that the finding of a violation was sufficient compensation.[344]
6.210 In Socialist Party v Turkey,[345] the facts were very similar. The Socialist Party ("SP") was also dissolved by the Turkish Constitutional Court; its assets were confiscated and transferred to the Turkish Treasury;[346] and the Chairman and former Chairman were prohibited from holding a similar office in any other political party. Again the Court found a violation of Article 10, but rejected the claims for pecuniary loss. However, in this case the claims for non-pecuniary loss on behalf of the Chairman and former Chairman were accepted in the sums of 50,000 French francs (£5,350) each. The Court distinguished the United Communist Party of Turkey v Turkey:[347]
As to non-pecuniary damage, the Court notes that, unlike the TBKP, the SP's constitution and programme were approved by the Constitutional Court and the party was active for four years before being dissolved by it. Perinçek and Kirit therefore sustained definite non-pecuniary damage.[348]
The distinction therefore appears to be that in the latter case the applicants had
lost an established position, and the element of speculation was therefore less.
12. ARTICLE 12
6.211 Article 12 of the Convention states:
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
6.212 The only case in which the Court has considered the availability of damages for a breach of Article 12 is F v Switzerland.[349] In December 1983, the applicant, who had been married and divorced on three occasions, was prohibited from remarrying for a period of three years. In May 1986, his partner was free to marry, but the relevant authorities refused to publish the banns necessary for a marriage to proceed until the expiry of the prohibition order in December. He was not able to marry until January 1987. He claimed 5,000 Swiss francs (£2,055) as non-pecuniary damages for having to "cohabit unmarried for several years with the person he wished to marry...".[350] His claim was refused.[351] The Court held that the applicant's rights under Article 12 had been violated, but observed that "even if the applicant [had] suffered non-pecuniary damage, it was at most during... a period of eight months."[352]
13. ARTICLE 14
6.213 Article 14 of the Convention states:
The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Article 14 does not, as such, prohibit discrimination on the grounds set out, but it requires that enjoyment of other Convention rights shall be without such discrimination. This does not mean that there must be an actual infringement of some other Article, but that once the matter is within the potential area of operation of an Article, there must be no discrimination in its application.[353]
6.214 The Court has considered whether damages are necessary to afford just satisfaction for a violation of Article 14 in a number of cases.[354] These cases are not susceptible to convenient generalisations. They pertain to discriminatory taxation, social security, inheritance and immigration regimes, discriminatory application of retrospective laws, and discriminatory civil procedure rules. It will be seen that the Court regularly awards damages for pecuniary losses for breaches of Article 14, provided the necessary causal link can be shown, and the Court usually reaches this result without resort to "loss of opportunity" reasoning. In respect of non-pecuniary losses, the Court is likely to hold that the finding of a violation provides just satisfaction.
(1) Discriminatory taxation regimes
6.215 In Schmidt v Germany,[355] the male applicant was required to pay a fire service tax; a similarly situated woman was exempt from this tax. The Strasbourg Court held that this difference in treatment violated Article 14 of the Convention taken together with Article 4. The applicant claimed 225 German marks (£90) as damages for pecuniary loss. The Court allowed the applicant's claim in its entirety.[356]
6.216 Schmidt v Germany can be contrasted with Van Raalte v Netherlands.[357] In the latter case the applicant – an unmarried, childless man aged sixty-three years - was obliged to contribute to the General Child Benefits Scheme; a similarly situated woman was exempt from such contribution. The Strasbourg Court held that this difference of treatment violated Article 14 of the Convention taken together with Article 1 of Protocol No 1. The applicant claimed 1,959 Dutch florins (£590) as damages for pecuniary loss. This sum represented the contributions paid by him to the General Child Benefits Scheme. The Government argued that men and women would have been equally liable to pay contributions, so that the applicant would have had to pay them in any case; and that it had in fact abolished the exemption.[358] The Strasbourg Court noted that the finding of a violation did not entitle the applicant to retrospective exemption from contributions under the scheme in question, and held that the applicant had not, therefore, substantiated his claim.[359] The Court also rejected the claim for non-pecuniary loss, holding that the finding of a violation was sufficient just satisfaction.[360]
(2) Discriminatory social security regimes
6.217 In Gaygusuz v Austria,[361] the applicant, a Turkish national living in Austria, applied for an advance on his pension in the form of emergency assistance. The benefits authority rejected the application, citing section 32(2)(a) of the Unemployment Insurance Act 1972 which restricted payment of emergency assistance to Austrian nationals. The prospect of living without means prompted the applicant to return to Turkey. The Court held that the restriction in the section violated Article 14, taken with Article 1 of Protocol No 1. The applicant claimed 800,000 Austrian schillings (£44,010) as damages for pecuniary loss, arguing that this sum corresponded to the amount of emergency assistance he should have been paid during the period 1987 to 1993. The Court noted that the applicant left Austria in September 1987, after he was refused emergency assistance. It declined to speculate about the applicant's situation after that date, but took into account the fact that his departure was caused by non-payment of emergency assistance, which would have amounted to 235 Austrian schillings (£15) per day. On an "equitable basis" the Court awarded him 200,000 Austrian schillings (£11,000) as damages for pecuniary loss. Judge Matscher, dissenting, thought the award was so excessive as to be inexplicable
... unless the Court wishes to adopt the practice which exists in American law of awarding "punitive damages". That practice is rightly not provided for in European law.[362]
(3) Discriminatory immigration regimes
6.218 In Abdulaziz, Cabales and Balkandali v United Kingdom,[363] a number of men applied for leave to enter or remain in the United Kingdom on the basis of their marriage, or intended marriage, to the applicants, women permanently resident in the United Kingdom. These applications were refused. However, they would have been treated more favourably if the applicants had been men permanently resident in the United Kingdom. The Government argued that at the times of their marriages the applicants knew that they could not live together in the UK, and further that they could have lived together in Portugal or Turkey. The Court held that the difference in treatment constituted a breach of Article 14 of the Convention taken together with Article 8. However, it rejected the applicants' claims for non-pecuniary loss:
By reason of its very nature, non-pecuniary damage of the kind alleged cannot always be the object of concrete proof. However, it is reasonable to assume that persons who, like the applicants, find themselves faced with problems relating to the continuation or inception of their married life may suffer distress and anxiety. Nevertheless, having regard in particular to the factors relied on by the Government in their alternative submission, the Court considers that in the circumstances of these cases its finding of violation of themselves constitutes sufficient just satisfaction.[364]
(4) Discriminatory application of retrospective laws
6.219 In Pine Valley Developments Ltd v Ireland,[365] the second applicant - a holding company that was wholly-owned by the third applicant - had purchased a development site at Clondalkin in reliance on an outline planning permission granted by the Minister of Local Government. The Irish Supreme Court subsequently held that this and other planning permissions were ultra vires. A 1982 statute retrospectively validated permissions affected by the Supreme Court's decision, but not the applicant's permission. The Court held that this difference in treatment violated Article 14 of the Convention taken together with Article 1 of Protocol No 1.
6.220 The applicants claimed compensation for pecuniary loss. The applicants sought to recover the difference between the values of the site with and without the outline planning permission on the date on which the 1982 Act came into force ('the relevant date'). The applicants and the Government agreed that, without outline planning permission, the Clondalkin site had a market value of 65,000 Irish pounds (£55,270) on the relevant date.[366] However, they disagreed on the market value of the site with planning permission. The applicants suggested a sum of 2,200,000 Irish pounds (£1,870,750), the Government a sum of 550,000 Irish pounds (£467,690). Making its assessment on an equitable basis, the Court awarded the applicants a global sum of 1,200,000 Irish pounds (£1,141,120) for pecuniary loss. That sum included interest payable from the relevant date.[367] It held that the appropriate rate was not a commercial rate, which was more appropriate to a claim based on lost development profits, but the rate applicable to Irish court judgments.
6.221 The third applicant also claimed substantial, but unquantified, damages to compensate him for
the effects which the violation found by the Court had had on his personal circumstances, namely loss of status, prospects and enjoyment of life, inability to obtain employment, and bankruptcy.[368]
The Court accepted the claim and awarded 50,000 Irish pounds (£47,550):
Even assuming that, as [the Government] suggested, Mr Healy's personal difficulties originated in problems encountered with other development projects with which he was involved, there is no reason to suppose that the inability to proceed with the Clondalkin development did not compound and aggravate those difficulties. The violation of the Convention therefore caused him non-pecuniary damage and, in the Court's view, the finding in the principal judgment does not of itself constitute just satisfaction therefore.[369]
(5) Discriminatory civil procedure rules
6.222 In Canea Catholic Church v Greece,[370] the applicant initiated proceedings to recover damages from a third party for the destruction of a church wall. The Court of Cassation dismissed the proceedings on the ground that the applicant had not been properly registered as a legal personality. This registration requirement did not apply to the Greek Orthodox Church. The Court held that this difference in treatment violated Article 14 of the Convention taken together with Article 6. The applicant claimed damages of 5,000,000 Greek drachmas (£10,760) to cover the costs of rebuilding the surrounding wall as before and to compensate for consequential loss following the Court of Cassation's judgment, which had caused the Crete Court of Appeal to dismiss an action to regain possession of a building the Church had let.[371]The Court awarded the full amount claimed, describing it as pecuniary damage "on account of its inability to take legal proceedings to secure the rebuilding of the surrounding wall".[372]
14. ARTICLE 1 OF PROTOCOL NO 1
6.223 Article 1 of Protocol No 1 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.
6.224 The Strasbourg Court generally awards damages for pecuniary loss provided that the applicant demonstrates a sufficient causal link between the loss and the violation of Protocol No 1.[373] There are several examples of substantial awards under this Article, sometimes combined with violations of other Articles.[374] The Court accepts and reviews detailed expert evidence on valuation issues, although it is not well-equipped to resolve disputes, and often resorts to an "equitable basis" of compensation. Substantial awards are also made for non-pecuniary loss, particularly to reflect the uncertainty and frustration of prolonged disputes with Government.[375]
(1) Expropriation
6.225 In Papamichalopoulos v Greece,[376] the applicants were dispossessed of their land by the military dictatorship. The land was put at the disposal of the Navy who constructed a naval base and holiday resort for officers. When democracy was restored, the State acknowledged the applicants' grievances, but determined that they could not be restored to their land because it formed part of the State's military infrastructure. Decisions of the national courts were ignored and the applicants were not compensated. In these circumstances, the Court held that there had been a violation of Article 1 of Protocol No 1 and that the applicants were entitled to damages. The Strasbourg Court pointed out that the case involved more than a lawful expropriation without compensation; it amounted to an unlawful dispossession.[377] The compensation was not limited to the value of the land at the date on which it was de facto expropriated.[378] The Court held that the Government should pay the applicants
for damage and loss of enjoyment since the authorities took possession of the land in 1967, the current value of the land, increased by the appreciation brought about by the existence of the buildings and the construction costs of the latter.[379]
6.226 This might seem to be more than the applicants had lost, as when the land was taken the buildings had not been constructed, but the Court was careful to emphasise that the damages referable to the value of the buildings formed part of the restitutio in integrum, compensating the applicants for the loss of enjoyment of the disputed land.[380] In reaching this conclusion, the Court had regard to principles established by the (then) Permanent Court of International Justice, in the Chorzow Factory case:
...reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by a restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.[381]
To assess the damages, the Strasbourg Court considered diverging expert reports from each side, and arrived at figures of 4,000,000 Greek drachmas (£10,920) for the land and 1,351,000 Greek drachmas (£3,690) for the building.[382] In addition it awarded a total of 6,300,000 Greek drachmas[383] (£17,195) for non-pecuniary loss to compensate for "feelings of helplessness and frustration" due to the refusal of the Government authorities to comply with judicial rulings.
6.227 In Vasilescu v Romania[384] the applicant's necklace and earrings made of gold coins had been taken without compensation some thirty years before. The Strasbourg Court stated that the best way to "put the applicant as far as possible in a situation equivalent to the one she would have been in had there not been a breach of Article 1 of Protocol No 1" would be for the items to be returned; but as the Government claimed to be unable to locate them, the applicant would be awarded damages assessed on an equitable basis of 60,000 French francs (£6,420) for pecuniary damage.[385] As the Court could not "exclude that the applicant, who [had] been deprived of her property for more than 30 years, [had] experienced some distress on this account", it also awarded 30,000 French francs (£3,210) for non-pecuniary loss.[386]
(2) Frustrated Court judgments
6.228 In Stran Greek Refineries and Stratis Andreadis v Greece,[387] the Government enacted legislation that invalidated an arbitration award made in favour of the applicant, in circumstances that violated Article 1 of Protocol No 1. The Strasbourg Court held that the applicant was entitled to recover a sum equivalent to the arbitration award plus interest.[388]
6.229 In Pressos Compania Naviera SA v Belgium,[389] the applicants were shipowners and shipping insurance associations whose vessels were in involved in collisions in Belgian or Netherlands territorial waters. In legal proceedings in respect of the damage caused by the collisions several actions were brought against the Belgian State, on the ground that the collisions were due to the negligence of Belgian pilots employed by the State. Belgium passed a law which retrospectively extinguished any claim that the applicants might have had against the Belgian State. For one of the applicants,[390] this meant that its third party proceedings against Belgium were finally dismissed and it was ordered to pay 9,686,039 Belgian francs (£212,500) to the owner of a jetty damaged in the collision. In the case of the other applicants, no final ruling had been given when an application was made under the Convention. In these circumstances, the Court held that there had been a violation of Article 1 of Protocol No 1. 6.230 The twenty-fifth applicants claimed a sum of 9,686,039 Belgian francs (£212,500) for the damages they had paid to the owners of the jetty.[391] The Government contested this claim, arguing that it was not clear that the third party proceedings would have succeeded, and that the applicants should at most receive damages for loss of opportunity. The Court treated these competing arguments as follows:
The amount of damage is not disputed. However, the apportionment of liability is uncertain. Accordingly, making an assessment on an equitable basis, the Court considers it reasonable for the respondent State to bear one half of the damage resulting from the accident concerned. Consequently, it awards [the applicant] 4,843,019.50 Belgian francs [£106,260].[392]
(3) Delayed proceedings
6.231 In some cases, the breach of this Article has been linked to a violation of Article 6, due to unreasonable delay in civil proceedings. In Sporrong and Lönnroth v Sweden,[393] the Court upheld the applicants' complaint of breaches of Article 6(1) and Article 1 of Protocol No 1 of the Convention. They were owners of property in an area subject to planned redevelopment, and both properties were subject to expropriation permits issued by the Government at the request of the local authority, together with prohibitions on construction. The properties were never expropriated, and the permits were cancelled after 23 years and 8 years respectively, while the prohibition notices lapsed after 25 years and 12 years respectively. The applicants had not been not compensated for any of their losses during the relevant periods.
6.233 Scollo v Italy[394] was another case involving violations of both Article 6(1) and Article 1 of Protocol No 1. The applicant, who was 71 per cent disabled, had sought eviction of the tenant of a flat owned by him. He was granted an eviction order, but it was suspended four times. Eventually the tenant left the flat of his own accord 11 years and 10 months after the eviction order. The Court found a violation of the applicant's right to peaceful enjoyment of his possessions, and held that his case had not been heard within a reasonable time. He claimed pecuniary damages of 13,634,280 lire (£5,560) representing bailiff's fees and lawyers' fees in the enforcement proceedings, together with 30,000,000 lire (£12,220) for non-pecuniary damage, referring to the prolonged period during which he had been unable to recover the flat and the fact that he and his family had been forced to lodge with his mother-in-law throughout that time. The Court rejected the Government's arguments based on lack of causation, and upheld the claim for both pecuniary and non-pecuniary damage in full.[395]
6.234 The Strasbourg Court may award damages for delay in obtaining compensation even if it appears that the national courts will ultimately grant it. In Guillemin v France,[396] the facts of which were given earlier,[397] the Court at first reserved the question of pecuniary loss because a settlement appeared likely, though it awarded the applicant non-pecuniary damages for "uncertainty and anxiety" about the outcome of the proceedings in France. In subsequent proceedings, after a French court had made an award but the applicant had still not received any of the money, the Strasbourg Court, without prejudice to the amount that would finally be paid to the applicant at the end of the proceedings in France, awarded 60,000 French francs (£6,420) pecuniary damages "for the loss of availability of the sum already awarded"[398] plus the full cost of a lawyer to defend her interests. It emphasised that compensation under Article 1 Protocol No 1 must be paid within a reasonable time to be adequate reparation.[399]
(4) Destruction of property
6.235 The Strasbourg Court has dealt with a number of cases in which it has been faced with valuing property wrongfully destroyed by government forces. Often the properties were in rural areas and there were not always accurate records of their size, and inspection by experts was not possible. In such cases, the Strasbourg Court has been willing to make an "equitable assessment" of the value of the property destroyed. Thus in Akdivar v Turkey[400] the court awarded damages based on the records which did exist and, where there were no records, on 50 per cent of the size claimed by the applicants.[401] The applicants were also awarded damages for loss of livestock and loss of household possessions, but not for loss of the land as this still belonged to them. However, as they could not live or work on the land, they were also awarded loss of income and the cost of alternative accommodation, as well as non-pecuniary loss.[402] The Strasbourg Court rejected a claim by the applicants for punitive damages.
15. ARTICLE 2 OF PROTOCOL NO 1
6.236 Article 2 of Protocol No 1 states:
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religion and philosophical convictions.
6.237 The availability of damages for a violation of this Article was considered in Campbell and Cosans v United Kingdom.[403] In that case, the applicants' sons attended schools that utilised corporal punishment as a form of discipline. The Court held that the local education authority's refusal to exempt Mrs Campbell's son from corporal punishment violated the second sentence of Article 2 of Protocol No 1. Similarly, the Court held that the authority's refusal to allow Mrs Cosans' son to return to school after suspension, because he would not agree to submit to corporal punishment, violated both sentences. The Court held that the finding of a violation was sufficient just satisfaction for any non-pecuniary loss suffered by Mrs Campbell and Mrs Cosans.[404]
6.238 Jeffrey Cosans claimed £25,000 as moral damage, reflecting the alleged effects on his education and future employment opportunities, as well as the embarrassment suffered.[405] The Court accepted that he had suffered nonpecuniary loss:
In addition to initial mental anxiety, he must have felt himself to be at a disadvantage as compared with others in his age-group. Furthermore, his failure to complete his schooling perforce deprived him of some opportunity to develop his intellectual potential.[406]
With regard to "material damage" the evidence was that Jeffrey's schooling would probably have led to no more than "a limited qualification"; and further he bore some responsibility for his situation, since he did not appear "to have pursued to the full the possibility of undertaking further study and training", and had "remained for a considerable period unregistered with the local employment exchange".
The Court therefore concludes that, whilst the suspension may well have contributed to the material difficulties which Jeffrey encountered, it cannot be regarded as the principal cause thereof.[407]
Taking these and other factors together on "an equitable basis", the Court awarded just satisfaction assessed at £3,000.[408]
16. ARTICLE 3 OF PROTOCOL NO 1
6.239 Article 3 of Protocol No 1 states:
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
6.240 In Labita v Italy,[409] the Court awarded damages for non-pecuniary loss for numerous violations of the Convention, including this Article.[410] The applicant had been arrested on suspicion of being a member of the Mafia (and related offences). Though he was eventually acquitted, he was made subject to 'preventative' measures which included his disenfranchisement. He was awarded 75 million lire (£23,180) in compensation for the non-pecuniary loss he had suffered in relation to all the violations of the Convention, but it is not clear what part of that award, if any, is referable to the violation of Article 3 of Protocol No 1.[411]
(Signed) ROBERT CARNWATH, Chairman, Law Commission
HUGH BEALE
DIANA FABER
CHARLES HARPUM
ALAN WILKIE
MICHAEL SAYERS, Secretary
BRIAN GILL, Chairman, Scottish Law Commission
PATRICK S HODGE
GERARD MAHER
KENNETH G C REID
JOSEPH M THOMSON
NORMAN RAVEN, Secretary
21 August 2000
Note 1 Para 3.30 above. [Back] Note 2 See McCann v United Kingdom A 324 (1995), 21 EHRR 97. [Back] Note 3 See Kaya v Turkey 1998-I p 297, 28 EHRR 1 (see para 6.8 below); Güleç v Turkey 1998-IV p 1698, 28 EHRR 121 (see para 6.10 below); Yasa v Turkey 1998-VI p 2411, 28 EHRR 408 (see para 6.9 below); Salman v Turkey Application no 21986/93, 27 June 2000 (see para 6.11 below); Timurtas v Turkey Application no 23531/94, 13 June 2000; 18 May 2000; Kiliç v Turkey Application no 22492/93, 28 March 2000 (see paras 6.13 - 6.14 below). Valikova v Bulgaria Application no 41488/98, 18 May 2000 is an example of a case on Article 2 which did not involve Turkey (see para 6.12 below). [Back] Note 4 A 324 (1995), 21 EHRR 97. [Back] Note 5 The Court pointed out that it was not clear from the applicants’ submissions whether the claim was made in respect of pecuniary damage or non-pecuniary damage or both. [Back] Note 6 A 324 (1995) 21 EHRR 97, 178. See para 3.56 above. [Back] Note 7 Article 13 protects the right to an effective remedy. It does not form part of the Human Rights Act 1998. See Part II para 2.3 above. [Back] Note 8 1998-I p 297, 28 EHRR 1. [Back] Note 9 The award appears to be for non-pecuniary damage only. The applicant had claimed £30,000 for the loss of the support for the widow and children, and £10,000 for the authorities’ failure to investigate. The latter appears to be the basis of the award. [Back] Note 10 1998-VI p 2411, 28 EHRR 408. [Back] Note 11 The nephew was treated as “a person who is himself affected” and “not as his uncle’s representative”: 1998-VI p 2411, 28 EHRR 408, para 63. As far as appears from the judgments, the refusal of any award to the deceased’s family in this case merely reflected the fact that they had not been made parties to the application, whereas in Kaya v Turkey 1998-I p 297, 28 EHRR 1 para 122, the application was expressly made on behalf of the deceased’s family. [Back] Note 12 1998-IV p 1698, 28 EHRR 121. [Back] Note 13 Two judges voted against the award of non-pecuniary damages, because the son had voluntarily and deliberately taken part in an illegal and violent demonstration; and further objected in principle to awarding non-pecuniary damages to the relatives of a victim because it was “unseemly to derive financial gain from the death of a relative”: see the joint partly dissenting opinion of Judges Gölcüklu and Matscher 1998-IV p 1698, 28 EHRR 121, 167. [Back] Note 14 Application no 21986/93, 27 June 2000. [Back] Note 15 The Court also found a violation in respect of Article 3 in respect of the torture to which her husband had been submitted. [Back] Note 16 Application no 41488/98, 18 May 2000. [Back] Note 17 The Court specified that the award should be paid to the applicant in full, free from any attachment for tax or other reasons. [Back] Note 18 Application no 22492/93, 28 March 2000. [Back] Note 19 See also Kaya v Turkey, Application no 22535/93, 28 March 2000 (see para 6.8 above). [Back] Note 20 A 161 (1989), 11 EHRR 439. [Back] Note 21 A 161 (1989) 11 EHRR 439, para 126. [Back] Note 22 The applicant invited the Court to give directions on the implementation of its judgment, but the Court held that it had no power to give directions to give effect to its decision. The Committee of Ministers is responsible for supervising the enforcement of the Court’s judgment. See para 3.31 above. [Back] Note 23 1996-V p 1831, 23 EHRR 413. See further para 6.76 below. [Back] Note 24 1996-VI p 2195, 24 EHRR 278. [Back] Note 25 The judgment does not further explain the nature of the non-pecuniary damage. [Back] Note 26 1997-VI p 1866, 25 EHRR 251 [Back] Note 27 1997-VI p 1866, 25 EHRR 251, para 131. [Back] Note 28 1998-III p 1152, 27 EHRR 373. [Back] Note 29 The Strasbourg Court also awarded £15,000 to the son in respect of a breach of Article 5, to be held by the mother for her son and his heirs. [Back] Note 30 1996-VI p 2260, 23 EHRR 553. Violations of Arts 3, 5(3) and 13 were established in this case. “In view of the extremely serious violations”, the Court awarded 4,283,450,000 Turkish lira (£24,325) for pecuniary and non-pecuniary damage. See also 3.45 above. [Back] Note 31 1998-II p 891, 26 EHRR 477. In addition to substantial sums awarded to compensate for homes and property that had been destroyed, and losses of income derived from such property, the Court awarded £10,000 for non-pecuniary damage to each applicant, “bearing in mind the seriousness of the violations which it has found in respect of Articles 3, 8 and 13... and Article 1 of Protocol No 1”. [Back] Note 32 The applicants claimed £10,000 for “aggravated damages” and a further £10,000 for “punitive damages”. The Strasbourg Court gave no reason for rejecting either of these claims. The distinction being drawn by the applicants between “punitive damages” and “aggravated damages” is unclear. There is no indication that the term “aggravated damages” was being used in the English sense of compensation for the manner in which the breach was committed by the defendant. See the discussion at Part III paras 3.45 - 3.48 above. [Back] Note 33 Application no 22277/93, 27 June 2000. [Back] Note 34 See Salman v Turkey, Application no 21986/93, 27 June 2000, discussed in para 6.11 above. [Back] Note 35 To be held by the applicant on behalf of his brother. [Back] Note 36 A 336 (1995) 21 EHRR 573. [Back] Note 37 The applicant alleged that he had received punches to the head, kidneys and right arm and kicks to the upper leg and kidneys, and that his head was banged against the floor. When released he had bruises on his right arm and one thigh and was suffering from a cervical syndrome, vomiting, diarrhoea and a violent headache. [Back] Note 38 1998-VI p 2692, 27 EHRR 611. [Back] Note 39 He was acquitted at his trial for assault, having pleaded “reasonable chastisement”. [Back] Note 40 1998-VIII p 3264, 28 EHRR 652. [Back] Note 41 Application no 32357/96, 11 April 2000. [Back] Note 42 See, for example, Erkalo v Netherlands 1998-VI p 2464, 28 EHRR 509, para 6.32 below. [Back] Note 43 1997-III p 909, 25 EHRR 198. See paras 3.45 - 3.46 above. [Back] Note 44 It is simply recorded that they sought “compensation for damage” in the amount of 14.7 million Greek drachmas (£31,645) each. [Back] Note 45 See para 3.22 above. [Back] Note 46 1997-III p 909, 25 EHRR 198, para 80 (footnotes omitted). [Back] Note 47 1998-VI p 2464, 28 EHRR 509. [Back] Note 48 1998-VI p 2464, 28 EHRR 509, para 70. [Back] Note 49 1996-III p 826, 22 EHRR 533. [Back] Note 50 See para 3.44 above. [Back] Note 51 1997-VII p 2657, 26 EHRR 390. [Back] Note 52 A 182 (1990), 13 EHRR 157; A 202 (1991), 14 EHRR 108. They had been arrested in Northern Ireland on suspicion of terrorist offences, but the Government had failed to provide adequate information as to the grounds. [Back] Note 53 The Government had declined on security grounds to provide details of the full reasonable grounds for their arrest. [Back] Note 54 A 148 (1989), 13 EHRR 346. [Back] Note 55 Note also Engel v The Netherlands (No 2) A 22 (1976), 1 EHRR 707, where the applicant claimed “a purely symbolic sum” for 33 hours unlawful detention, and was awarded a “token indemnity” of 100 Dutch guilders (£24). But see the discussion of “nominal damages” in para 4.74 above. In Litwa v Poland Application no 26629/95, 4 April 2000 the applicant, who had been detained unlawfully for approximately six and a half hours, was awarded 8,000 Polish zloties (£1,195) on an equitable basis for non-pecuniary loss. The Strasbourg Court may have been influenced by the fact that the applicant was elderly and nearly blind. [Back] Note 56 1998-VII p 2719, 28 EHRR 603. [Back] Note 57 1998-VII p 2719, 28 EHRR 603, para 122. See also Raninen v Finland 1997-VIII p 2804, 26 EHRR 563 (an award of 10,000 Finnish markka (£1,120), for the humiliation of public arrest and handcuffing, lasting 2 hours). [Back] Note 58 A 111 (1986), 9 EHRR 297; A 124-F (1987), 13 EHRR 428. See also para 3.49 above. [Back] Note 59 A 124-F (1987), 13 EHRR 428, para 8 (footnotes omitted). [Back] Note 60 A 124-F (1987), 13 EHRR 428, para 9 (footnotes omitted). [Back] Note 61 A 311 (1995), 21 EHRR 529. [Back] Note 62 1997-II p 529, 24 EHRR 121. [Back] Note 63 The Court only had jurisdiction to examine the facts and circumstances of the applicant’s complaint in so far as they related to the period after 7 September 1992, when Bulgaria ratified the Convention and recognised the Court’s compulsory jurisdiction: 1997-II p 529, 24 EHRR 121, para 40. [Back] Note 64 Their right to do so was not challenged, on the basis of previous case-law: Ahmet Sadik v Greece 1996-V p 1652, 24 EHRR 323, para 26. See para 2.15(6) above. [Back] Note 65 1997-VII p 2391, 27 EHRR 296. [Back] Note 66 The Tribunal made similar orders on 9 May 1990 and 9 April 1991. In each case the
order was suspended until arrangements could be made for suitable hostel
accommodation. [Back] Note 67 1997-VII p 2391, 27 EHRR 296, para 77. [Back] Note 68 He had claimed £100,000 for non-pecuniary loss, relying on comparative English awards, and the award in Lukanov v Bulgaria 1997-II p 529, 24 EHRR 121. See paras 3.54 - 3.57 above. [Back] Note 69 A 170 (1990), 12 EHRR 567. [Back] Note 70 A 170 (1990), 12 EHRR 567, para 42. [Back] Note 71 The effect of Art 5(3) is discussed in detail in Bail and the Human Rights Act 1998, Law Commission Consultation Paper No 157 (1999) p 37 ff. See also ibid para 1.21 ff, on the approach of the Strasbourg Court in relation to damages. [Back] Note 72 A 135 (1988), 11 EHRR 238. [Back] Note 73 A 135 (1988), 11 EHRR 238, para 43. He also wished to secure reform of the Belgian law concerning military personnel. The Strasbourg Court noted that its judgments leave the State concerned the choice of the appropriate means to give affect to the decision. See further para 3.31 above. [Back] Note 74 A 135 (1988), 11 EHRR 238, para 43. See para 3.58 above. See also Brincat v Italy A 249-A (1992), 16 EHRR 591, para 25. Surprisingly, an award was made in this case for non-pecuniary loss relating to “effects on his reputation” and “feelings of insecurity”; under more modern practice this award would have been unlikely (see para 6.49 below). [Back] Note 75 A 79 (1984), 13 EHRR 478, para 45 (footnotes omitted). The Court expressed itself in nearly identical terms in De Jong, Baijet and Van den Brink v Netherlands A 77 (1984), 8 EHRR 20, para 65, and Van der Sluijs, Zuiderveld and Klappe v Netherlands A 78 (1984), 13 EHRR 461, para 52. [Back] Note 76 A 145-B (1989), 11 EHRR 117 (merits); A 152-B (1989), 13 EHRR 439 (just satisfaction). [Back] Note 77 The Court itself has acknowledged this trend: Nikolova v Bulgaria Application no 31195/96, 25 March 1999; see above, paras 3.39 - 3.41. See also Niedbala v Poland Application no 27915/95, 4 July 2000. [Back] Note 78 Application nos 25644/94 and 25642/94, 29 April 1999, 29 EHRR 185. [Back] Note 79 Application no 30280/96, 14 March 2000. [Back] Note 80 Application no 30280/96, 14 March 2000, para 37. [Back] Note 81 1997-VII p 2609, 26 EHRR 662. [Back] Note 82 A 207 (1991), 14 EHRR 83. [Back] Note 83 Though released under supervision in December 1985, she returned to prison in January 1986 following an appeal by the public prosecutor. [Back] Note 84 A 207 (1991), 14 EHRR 83 para 62. See para 3.58. The same conclusion was reached for the same reasons in Mansur v Turkey A 321 (1995), 20 EHRR 535, on which see para 6.56 below. [Back] Note 85 Application no 31195/96, 25 March 1999. [Back] Note 86 See paras 3.40 and 3.41 n 85 above. [Back] Note 87 See paras 3.39 - 3.40 above. The substantive aspects of the case are discussed in detail in Bail and the Human Rights Act 1998 (1999) Law Commission Consultation Paper No 157, paras 9.10 - 9.14. [Back] Note 88 The same conclusion was reached in Letellier v France A 207 (1991), 14 EHRR 83 above, para 6.53. [Back] Note 89 A 321 (1995), 20 EHRR 535. [Back] Note 90 The Court had jurisdiction only in respect of the period after 22 January 1990. [Back] Note 91 See note 84 above. [Back] Note 92 A 321 (1995), 20 EHRR 535, para 72. Thus the applicant confined his claim to losses flowing from the violation of Art 5(3). [Back] Note 93 The Commission had proposed an award of 50,000 - 60,000 French francs (£6,550 - £7,860). See also Yagci and Sargin v Turkey A 319 (1995), 20 EHRR 505: the applicants were arrested in November 1987 on suspicion of various political offences and detained pending trial until May 1990. They were acquitted of all charges. The Court awarded them 30,000 French francs (£3,930) each. [Back] Note 94 Application no 26772/95, 6 April 2000. [Back] Note 95 The Strasbourg Court also found violations of Article 3 (due to the failure to investigate his allegation of ill treatment properly); Article 8 (because of interference with his correspondence); Protocol No 1, Article 3 (because of his disenfranchisement) and Protocol No 4, Article 2 (because his freedom of movement had been severely restricted). [Back] Note 96 He also claimed compensation for the confiscation of some of his property and the attachment of his shareholding. These claims were rejected on causal grounds. [Back] Note 97 Application no 32819/96, 8 February 2000. [Back] Note 98 Application no 32819/96, 8 February 2000 para 31. [Back] Note 99 A 224 (1991), 14 EHRR 551. See further Scott v Spain 1996-VI p 2382, 24 EHRR 391. [Back] Note 100 A 224 (1991), 14 EHRR 551, para 89. [Back] Note 101 A 224 (1991), 14 EHRR 551, para 91. [Back] Note 102 A 224 (1991), 14 EHRR 551, para 89. [Back] Note 103 A 241-A (1992), 15 EHRR 1. For an earlier case in which the Strasbourg Court made an award of damages for non-pecuniary loss, see Ringeisen v Austria (No 2) A 15 (1972), 1 EHRR 504, discussed above at para 3.35. [Back] Note 104 The applicant was physically abused by the police in violation of Art 3. The length of the investigation relating to the abuse - five years and ten months - violated Art 6(1). [Back] Note 105 He had claimed pecuniary loss of over 1,000,000 French francs (£119,410), for loss of salary, loss of commercial income, and expenses incurred by his family in visiting him. He also claimed non-pecuniary loss of 1,000,000 French francs (£119,410) for the violation of Art 5(3), and 500,000 French francs (£59,705) for the violations of Arts 3 and 6. [Back] Note 106 Application no 33644/96, 6 June 2000. [Back] Note 107 Application no 33644/96, 6 June 2000. [Back] Note 108 Application no 31315/96, 25 April 2000. [Back] Note 109 The applicant had claimed 500,000 German marks (£152,990) in non-pecuniary loss in compensation for the deterioration in his health due to the conditions of his detention on remand. [Back] Note 110 In addition to the cases noted below, see, for example, Luberti v Italy A 75 (1984), 6 EHRR 440 (para 3.54 above); Lamy v Belgium A 151 (1989), 11 EHRR 529; Bezicheri v Italy A 164 (1989), 12 EHRR 210; and Kampanis v Greece A 325 (1995), 21 EHRR 43 (para 6.74 below). [Back] Note 111 De Wilde, Ooms and Versyp v Belgium (No 1) A 12 (1971), 1 EHRR 373; De Wilde, Ooms and Versyp v Belgium (No 2) A 14 (1972), 1 EHRR 438. [Back] Note 112 A 14 (1972) 1 EHRR 438, para 24 (footnotes omitted). This precedent was invoked to justify refusing a claim in similar circumstances in Van Droogenbroeck v Belgium (Just Satisfaction) A 63 (1983), 13 EHRR 546. (In the latter case, an award for non-pecuniary loss was made, but this was not followed in Nikolova v Bulgaria Application no 31195/96, 25 March 1999: see above paras 6.54 - 6.55). [Back] Note 113 A 114 (1987), 10 EHRR 293 (merits), A 143-A (1988), 13 EHRR 435 (just satisfaction). See further para 3.64 above. [Back] Note 114 He had entered a pet shop with a starting pistol loaded with blank cartridges, and told the owner of the shop to hand over the cash in the till (35 pence, which was later found on the shop floor). He had committed the robbery for money to pay his mother, who had told him to find lodgings elsewhere. [Back] Note 115 In this context, the Court held that detention is lawful only insofar as it is based on grounds consistent with the objectives of the sentencing court: A 114 (1987), 10 EHRR 293, para 58. [Back] Note 116 Totalling £35-45,000. [Back] Note 117 He claimed around £50,000, based on the level of ex-gratia payments made by the Home Secretary in cases of wrongful imprisonment. [Back] Note 118 A 143 (1988), 13 EHRR 437, paras 12-15 (footnotes omitted). [Back] Note 119 A 237-A (1992), 15 EHRR 584. [Back] Note 120 See paras 3.39 - 3.41 above. [Back] Note 121 Application no 32340/96, 28 March 2000. [Back] Note 122 The recommendation had been rejected by the Secretary of State. [Back] Note 123 A 325 (1995), 21 EHRR 43. [Back] Note 124 1996-I p 252, 22 EHRR 1. [Back] Note 125 Although not stated in terms, one may infer that a distinction fromWeeks v United Kingdom, noted at para 6.68 - 6.71 above, was the fact that the Parole Board had consistently refused release. In Weeks v United Kingdom the fact that the Parole Board had recommended that the applicant be released on licence provided some evidence that in the absence of a breach of Article 5(4) the applicant might have been released earlier. [Back] Note 126 1996-V p 1831, 23 EHRR 413. See further para 6.18 above. [Back] Note 127 1997-VI p 2003, 28 EHRR 224. [Back] Note 128 This is recognised in the HRA by the special provision for the award of damages in the case of judical acts contrary to Article 5: see s 9(3), discussed in Part II paras 2.26 - 2.27 above, and Appendix A. [Back] Note 129 See Neumeister v Austria (No 2) A 17 (1974), 1 EHRR 136, para 30, discussed at para 3.34 above. For the principal proceedings, seeNeumeister v Austria (No 1), A 8 (1968),1 EHRR 91. [Back] Note 130 See Tsirlis and Kouloumpas v Greece 1997-III p 909, 25 EHRR 198 (para 6.30 above). See para 3.17 above. [Back] Note 131 This practice has not escaped criticism. See the discussion of Nikolova v Bulgaria Application no 31195/96, 25 March 1999, Part III paras 3.39 - 3.40 above. [Back] Note 132 In Tsirlis and Kouloumpas v Greece 1997-III p 909, 25 EHRR 198, noted at para 6.30 above, the Court awarded the applicants damages for pecuniary and non-pecuniary loss for violations of Art 5(1) and 5(5), but without any separate consideration of the latter. [Back] Note 133 See, for example, Fox, Campbell and Hartley v United Kingdom A 202 (1991), 14 EHRR 108 (noted at para 6.35 above) and Brogan v United Kingdom A 152-B (1989), 13 EHRR 439 (noted at para 6.48 above).The Court has awarded damages for non-pecuniary loss in a number of cases involving a violation of Art 5(1), 5(2), 5(3) or 5(4), coupled with a violation of Art 5(5): Tsirlis and Kouloumpas v Greece 1997-III p 909, 25 EHRR 198, noted at para 6.30 above; Sakik v Turkey 1997-VII p 2609, 26 EHRR 662, noted at para 6.51 above; and Caballero v United Kingdom Application no 32819/96, 8 February 2000, noted at para 6.58 above. However, again there is no indication that any part of the damages awarded in these cases is referable to the violation of Art 5(5). [Back] Note 134 See paras 3.38 - 3.43; 3.58 - 3.69 above. [Back] Note 135 A 41 (1981), 3 EHRR 592 (just satisfaction). [Back] Note 136 A 125-B (1987), 10 EHRR 367. [Back] Note 137 See for example Allan Jacobsson v Sweden A 163 (1989), 12 EHRR 56. [Back] Note 138 See paras 3.38 - 3.43 above. [Back] Note 139 A 136-C (1988), 13 EHRR 453 (just satisfaction). For the principal proceedings, see W v United Kingdom A 121 (1987), 10 EHRR 29. See further para 6.161 below. [Back] Note 140 Ibid, para 12. Compare para 3.27 above. The reasoning is almost identical to that in H v United Kingdom A 120 (1987), 10 EHRR 95, discussed in detail in Part III para 3.65. See also R v United Kingdom A 136-E (1988), 13 EHRR 457: damages of £100,000 claimed in comparable circumstances: sum of £8, 000 awarded; O v United Kingdom A 136-A (1988), 13 EHRR 578: damages of £100,000 claimed, £5, 000 awarded; R (B) v United Kingdom (Just satisfaction) A 136-D (1988), 13 EHRR 588: award of £12, 000. See also Olsson v Sweden (No 2) A 250 (1992) 17 EHRR 134: violation of Article 8 and Article 6(1) Court awarded 50,000 Swedish krona (£4,680) (see further para 6.162). See also Starmer, European Human Rights Law (1999), 2.66, who observes that damages awarded in child-care cases are relatively generous by the Court’s standards, ‘often reflecting the degree of anxiety and distress presumed by the Court.’ See paras 6.159 - 6.164 below where this issue is discussed in relation to violations of Article 8. [Back] Note 141 W v United Kingdom A 136-C (1988), 13 EHRR 453 (just satisfaction), para 10. [Back] Note 142 For the potential problems in following the case-law under the HRA, due to the immunity for judicial acts (s 9(3)) see Part IV paras 4.82 - 4.84 above. [Back] Note 143 A 125-A (1987), 10 EHRR 380. [Back] Note 144 A 125-A (1987), 10 EHRR 380, para 47. [Back] Note 145 A 125-A (1987), 10 EHRR 380, para 48. [Back] Note 146 See Philis v Greece A 209 (1991), 13 EHRR 741, para 73. Here, a pecuniary loss claim was rejected on the basis that Strasbourg Court could not speculate on what the outcome of domestic proceedings would have been, had the applicant been able to bring them; but the Strasbourg Court accepted that the feeling of frustration engendered by the applicant’s inability to assume control of the defence of his own interests and the prolonged anxiety he had suffered as to the outcome of the dispute must have caused him some non-pecuniary injury, and, making the assessment on an equitable basis, awarded the applicant 1,000,000 drachmas (£3,055) under this head). See also Fredin v Sweden A 192 (1991) 13 EHRR 784. [Back] Note 147 A 53 (1982), 5 EHRR 169 (merits), A 85 (1984), 7 EHRR 251 (just satisfaction). [Back] Note 148 A pecuniary award was made “on an equitable basis” in respect of his costs in the first abortive proceedings, as well as his costs before the Strasbourg Court. See also para 3.33 n 67 above. [Back] Note 149 A 154 (1989), 12 EHRR 266. See also, for example, Sramek v Austria A 84 (1984), 7 EHRR 351; Langborger v Sweden A 155 (1989), 12 EHRR 416. Claims for pecuniary loss failed on similar grounds in cases discussed below: De Cubber v Belgium A 124-B (1987), 13 EHRR 422 (just satisfaction) (see para 6.98); Findlay v United Kingdom 1997-I p 263, 24 EHRR 221 (see para 6.99). [Back] Note 150 The applicant had also asked the Court to quash his conviction, but the Court affirmed that it was not empowered to quash a judgment or to give any directions. See para 3.31 above. [Back] Note 151 See the discussion of “loss of opportunity” in Part III paras 3.62 - 3.63 above. [Back] Note 152 A 103 (1985), 13 EHRR 409 (just satisfaction). See also paras 3.36 and 3.63 above. [Back] Note 153 A 103 (1986), 13 EHRR 409, para 11. [Back] Note 154 Para 6.97 above. [Back] Note 155 A 124 (1987), 13 EHRR 422 (just satisfaction). [Back] Note 156 See also De Moor v Belgium A 292-A (1994), 18 EHRR 372; Beaumartin v France A 296- B (1994), 19 EHRR 485. [Back] Note 157 1997-I p 263, 24 EHRR 221. [Back] Note 158 1997-I p 263, 24 EHRR 221, para 25. Damages for pecuniary losses were denied on the basis that, inasmuch as the Strasbourg Court could not speculate as to the decision which a properly constituted tribunal would have made, the applicant had failed to establish a causal link between those losses and the violation of his Art 6(1) rights. See also De Haan v Netherlands 1997-IV p 1379, 26 EHRR 417; and Gautrin v France 1998-III p 1009, 28 EHRR 196; and see Oberschlick v Austria A 204 (1991), 19 EHRR 389. [Back] Note 159 See De Haan v Netherlands 1997-IV p 1379, 26 EHRR 417; and Gautrin v France 1998- III p 1009, 28 EHRR 196. [Back] Note 160 See Engel and Others v The Netherlands (No 2) A 22 (1976), 1 EHRR 647; Le Compte, van Leuven and de Meyere v Belgium (Article 50) A 54 (1982), 5 EHRR 183; Albert and Le Compte v Belgium (Article 50) A 68 (1983), 6 EHRR 50; Campbell and Fell v United Kingdom A 80 (1984), 7 EHRR 165; Weber v Switzerland A 177 (1990), 12 EHRR 508; Fischer v Austria A 312 (1995), 20 EHRR 349; Diennet v France A 315-B (1995), 21 EHRR 554; Lobo Machado v Portugal 1996-I p 195, 23 EHRR 79; Stallinger and Kuso v Austria 1997-II p 666, 26 EHRR 81; and Werner v Austria, Szücs v Austria 1997-VII p 2496, 26 EHRR 310. [Back] Note 161 A 285-C (1994). [Back] Note 162 Which included loss of earnings and career prospects, though the Strasbourg Court rejected the methods of calculation of that loss which were put forward by the applicants. [Back] Note 163 This was first recognised in Neumeister v Austria (No 1) A 8 (1968) 1 EHRR 91. [Back] Note 164 A 274-A (1993), 18 EHRR 213. [Back] Note 165 A 274-A (1993), 18 EHRR 213, para 33. [Back] Note 166 There are many examples of claims for damages being refused on similar grounds. See Bricmont v Belgium A 158 (1989), 12 EHRR 217; Borgers v Belgium A 214 (1991), 15 EHRR 92; Saidi v France A 261-C (1993) 17 EHRR 251; Ruiz-Mateos v Spain A 262 (1993), 16 EHRR 505; Bulut v Austria 1996-II p 346, 24 EHRR 84; Mantovanelli v France 1997-II p 424, 24 EHRR 370; Nideröst-Huber v Switzerland 1997-I p 101, 25 EHRR 709; and Van Orshoven v Belgium 1997-III p 1039, 26 EHRR 55. [Back] Note 167 A 191-A (1990), 16 EHRR 574. See also para 6.144. [Back] Note 168 Application no 27752/95, 27 April 2000. [Back] Note 169 A 127 (1987), 10 EHRR 339. [Back] Note 170 A 303-A (1994), 19 EHRR 553. [Back] Note 171 1997-III p 949, 24 EHRR 606. [Back] Note 172 A 256-A (1993), 16 EHRR 297. [Back] Note 173 A 256-A (1993), 16 EHRR 297, para 61. [Back] Note 174 A 256-A (1993), 16 EHRR 297, para 62. [Back] Note 175 1996-VI p 2044, 23 EHRR 313. [Back] Note 176 K Reid, A Practitioner’s Guide to the European Convention on Human Rights (1998) p 410-
1 has a separate section devoted to Italian cases, in her table of cases on “Length of
Proceedings”. [Back] Note 177 Discussed below under Article 1 of Protocol No 1, paras 6.231 - 6.232 and 6.233
respectively. [Back] Note 178 A 272 (1993), 18 EHRR 205. [Back] Note 179 A 272 (1993), 18 EHRR 205, para 24. [Back] Note 180 A 162-A (1989), 12 EHRR 74. [Back] Note 181 A 265-B (1993), 18 EHRR 266. [Back] Note 182 A 265-B (1993), 18 EHRR 266, para 31. [Back] Note 183 See also Vallee v France A 289 (1994), 18 EHRR 549; Frydlender v France Application no 30979/96, 27 June 2000. [Back] Note 184 A 278 (1993), 17 EHRR 493. [Back] Note 185 See para 2.15 above. [Back] Note 186 A 100 (1986), 8 EHRR 448. [Back] Note 187 See for example, Luberti v Italy A 75 (1984), 6 EHRR 440, discussed in Part III para 3.54. See also A and others v Denmark 1996-I p 3264, 22 EHRR 458. The Danish proceedings related to claims for compensation for HIV infection caused by blood transfusions. The Strasbourg Court found that the proceedings had been unreasonably delayed. In similar French cases it had awarded non pecuniary damages of 200,000 French francs (£23,700). In the Danish cases it awarded 100,000 Danish krone (£10,110) in each case, taking account of ex gratia payments already made, and the fact that the “applicants contributed significantly to the length of the proceedings.” [Back] Note 188 Application no 35382/97, 6 April 2000. See para 3.28. [Back] Note 189 1997-I p 149, 25 EHRR 435 (merits), 1998-VI p 2544 (just satisfaction). [Back] Note 190 See below, para 6.234 below. [Back] Note 191 1997-I p 149, 25 EHRR 435 (merits), para 62. [Back] Note 192 See 1998-VI p 2544 (just satisfaction). [Back] Note 193 See 1998-VI p 2544 (just satisfaction), para 22. [Back] Note 194 See 1998-VI p 2544 (just satisfaction), para 25. [Back] Note 195 See paras 3.70 - 3.74 above. [Back] Note 196 A 175 (1990), 13 EHRR 20. [Back] Note 197 For a rare example of a (partly) successful claim for pecuniary loss caused by excessive delay in criminal proceedings, see Foti v Italy A 69 (1983) 6 EHRR 310. [Back] Note 198 A 119 (1987), 10 EHRR 333. [Back] Note 199 See also Mansur v Turkey A 321 (1995), 20 EHRR 535 which also involved an
infringement of Article 5(3) and was described earlier at para 6.56 above; Baggetta v Italy
A 119 (1987), 10 EHRR 325; Milasi v Italy A 119 (1987) 10 EHRR 333; Mitap and
Müftüoglu v Turkey 1996-II p 402, 22 EHRR 209. [Back] Note 200 A 65 (1983), 13 EHRR 556 (see further para 3.58 above). See also Abdoella v Netherlands
A 248-A (1992), 20 EHRR 585. [Back] Note 201 Para 24. See also Abdoella v Netherlands A 248-A (1992), 20 EHRR 585: the applicant
had been sentenced to 12 years for incitement to murder. The period of unreasonable
delay counted towards his sentence, and, although the Court accepted that he may have
suffered “some frustration and anxiety” it made no award for non-pecuniary loss. [Back] Note 202 A 266-A (1993), 17 EHRR 221. See also Minelli v Switzerland A 62 (1983), 5 EHRR
554: A private prosecution for criminal defamation against the applicant failed because the
limitation period expired, but he was ordered to pay costs; this was held to be a violation
of Article 6(2), because of the implicit assumption that, but for limitation period, he would
have been convicted. However, the finding of the Strasbourg Court and the award of his
costs were held to provided just satisfaction. [Back] Note 203 A 266-A (1993), 17 EHRR 221, para 30. [Back] Note 204 A 266-A (1993), 17 EHRR 221, para 35. [Back] Note 205 A 308 (1995), 20 EHRR 557. [Back] Note 206 The applicant was charged with aiding and abetting murder but these charges were later dropped and he was released. [Back] Note 207 A 308 (1995), 20 EHRR 557, para 62. [Back] Note 208 A 308 (1995), 20 EHRR 557, para 62. [Back] Note 209 A 167 (1989), 12 EHRR 371. [Back] Note 210 Reading between the lines, one may detect some scepticism about the merits of the case. [Back] Note 211 Application no 25444/94, 25 March 1999. [Back] Note 212 On account of the length of the proceedings. [Back] Note 213 The applicants had each claimed 405,000 French francs (£38,715) for pecuniary loss and 250,000 French francs (£26,290) for non-pecuniary loss. [Back] Note 214 See Granger v United Kingdom A 174 (1990), 12 EHRR 469; Poitrimol v France A 277-A (1993), 18 EHRR 130; Zana v Turkey 1997-VII p 2533, 27 EHRR 667. [Back] Note 215 A 300-C (1994), 19 EHRR 97. [Back] Note 216 See Pakelli v Germany A 64 (1983), 6 EHRR 1; FCB v Italy A 208-B (1991), 14 EHRR 909; Lala v Netherlands A 287-A (1994), 18 EHRR 586; Pelladoah v Netherlands A 297-B (1994), 19 EHRR 81; Maxwell v United Kingdom A 300-C (1994), 19 EHRR 97; Boner v United Kingdom A 300-B (1994), 19 EHRR 246; John Murray v United Kingdom 1996-I p 30, 22 EHRR 29. Cf paras 3.38 - 3.43 above. [Back] Note 217 1996-III p 738, 22 EHRR 293. See further paras A.10 - A.12 below. [Back] Note 218 The Strasbourg Court also held that the finding of a violation would amount to sufficient just satisfaction in Averill v United Kingdom Application no 36408/97, 6 June 2000, and Magee v United Kingdom Application no 28135/95, 6 June 2000, where the applicants, who had been detained on suspicion of terrorism, complained that they had been denied access to a solicitor during the first days of their detention. [Back] Note 219 In addition to the examples discussed, see further S v Switzerland A 220 (1991), 14 EHRR 670; Zana v Turkey 1997-VII, 27 EHRR 667. [Back] Note 220 A 37 (1980), 3 EHRR 1. [Back] Note 221 A 37 (1980), 3 EHRR 1, para 47. [Back] Note 222 A 76 (1984), 6 EHRR 457. [Back] Note 223 A 76 (1984), 6 EHRR 457, para 35. [Back] Note 224 Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33. [Back] Note 225 For anecdotal evidence of the basis of the amount, see Part III para 3.10 n 15 above. See also paras 3.66 - 3.67 above. The case is also discussed in Appendix A at paras A.16 - A.22. [Back] Note 226 Windisch v Austria A 186 (1990), 13 EHRR 281 (merits); A 255-D (1993) (just
satisfaction). [Back] Note 227 See para 3.31 above. [Back] Note 228 See the discussion in Part III, paras 3.59 - 3.69. [Back] Note 229 A 191-A (1990), 16 EHRR 574, considered at para 6.105 above. [Back] Note 230 A 235-B (1992) (merits); A 235-E (1992) (just satisfaction). The Court thought it “not unreasonable” to regard the applicant as having suffered “a loss of real opportunities”; and non-pecuniary damage in the distress caused by the length of the proceedings. In Unterpertinger v Austria A 110 (1986), 13 EHRR 175, where the applicant’s conviction was based on the statements of witnesses who did not appear, the state conceded the claim for loss of earnings but disputed the remainder. The Strasbourg Court awarded 100,000 Austrian schillings (£4,970) as compensation for both pecuniary and non-pecuniary damage. See also Van Mechelen v Netherlands 1997-III p 691, 25 EHRR 647 (merits); 1997-VII p 2426 (just satisfaction). [Back] Note 231 A 261-C (1993), 17 EHRR 251. [Back] Note 232 A 29 (1978), 2 EHRR 149. [Back] Note 233 A 307-A (1995), 20 EHRR 247 (merits); 1996-II p 386, 21 EHRR CD1 (just satisfaction). [Back] Note 234 The applicant was also prohibited from “disposing of, diminishing or otherwise in any way dealing with any ??property ??within or without the jurisdiction”. The restraining order was imposed to ensure the effective enforcement of the confiscation order. [Back] Note 235 See Part II para 2.15 above. [Back] Note 236 The Strasbourg Court had been given to understand (presumably by the Government) that the order would not be enforced against the applicant. See 1996-II p 386, 21 EHRR CD1, at para 9. [Back] Note 237 A 320 (1995), 21 EHRR 65. [Back] Note 238 The warrant of committal for default was subsequently rescinded upon payment of 6,000 French francs (£785) by the applicant to the customs authorities. The applicant maintained that “the conclusion of a friendly settlement with the customs authorities was not unconnected with the fact that he had lodged an application with the Convention institutions.” (A 320 (1995), 21 EHRR 65, para 40). [Back] Note 239 A 320 (1995), 21 EHRR 65, para 38. [Back] Note 240 A 320 (1995), 21 EHRR 65, para 39. [Back] Note 241 Applications nos 23536/94 and 24408/94, 8 July 1999. [Back] Note 242 This aspect of the case is discussed in detail at paras 6.198 and 6.203 below. [Back] Note 243 On these points see paras 3.38 - 3.43 and 3.44 above respectively. [Back] Note 244 A 18 (1975), 1 EHRR 524 considered above, para 3.38. [Back] Note 245 It is not clear what type of damage the applicant was claiming. [Back] Note 246 A 67 (1983), 6 EHRR 62. See also para 3.44 above. [Back] Note 247 A 67 (1983), 6 EHRR 62, 63, para 10. Further illustrations of this approach can be found in Campbell and Fell v United Kingdom A 48 (1982), 4 EHRR 293, Schönenberger and Durmaz v Switzerland A 137 (1988), 11 EHRR 202, McCallum v United Kingdom A 183 (1990), 13 EHRR 597, Pfeiffer and Plankl v Austria A 227 (1992), 14 EHRR 692 and Campbell v United Kingdom A 233-A (1992), 15 EHRR 137. [Back] Note 248 Silver v United Kingdom A 67 (1983), 6 EHRR 62 (just satisfaction) para 16. [Back] Note 249 A 257-H (1993). See also Herczegfalvy v Austria A 242-B (1992), 15 EHRR 437, where the Court awarded 100,000 Austrian schillings (£5,790) for the non-pecuniary damages suffered by the applicant as a result of violations of Articles 5(4), Art 8 and Art 10. It is not clear though what portion of the award represents the non-pecuniary damage attributable to the interference with the applicant’s correspondence during his detention in a psychiatric hospital. [Back] Note 250 There is no indication in the judgment of the “intensity” of the interference; indeed there was a dispute as to whether there had in fact been any interference. One distinguishing factor, not referred to expressly, might have been that the applicant was in detention on remand. However, in Schönenberger and Durmaz v Switzerland A 137 (1988), 11 EHRR 202, where damages were refused, the applicant was in detention on remand. A factor noted by the Strasbourg Court was that, in contrast to other ‘correspondence cases’, the applicant complained that he had never received correspondence addressed to him. In most of the cases where damages were not awarded, the applicants were convicted criminals serving prison sentences, and were subject to restrictions on their correspondence, rather than being denied it. [Back] Note 251 In H v United Kingdom A 120 (1987) 10 EHRR 95, the Court emphasised the importance of timely proceedings because children taken into care may subsequently be adopted or placed in foster homes where they will begin to develop bonds with their new families. As a result “there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing”. See the discussion of this case in Part III para 3.65 above. [Back] Note 252 See W v United Kingdom A 121 (1987), 10 EHRR 29 (merits), discussed under Article 6 above, at paras 6.90 - 6.91. [Back] Note 253 See Part III para 3.65 above. [Back] Note 254 See para 3.27 above. [Back] Note 255 In H v United Kingdom A 120 (1987), 10 EHRR 95 para 85, the Court referred to the “importance of what was at stake” and the “particular quality of irreversibility” in relation to the proceedings found to be in violation of Art 8. In considering the application of Art 41 in H v United Kingdom (Just Satisfaction) A 136-B (1988), 13 EHRR 449 para 10 the Court laid further emphasis on the importance of the right in question: “Whilst the applicant was thus the victim of a deficiency of a procedural nature, it was all the same a deficiency that was intimately connected with an interference with one of the most fundamental of rights namely that of respect for family life”. [Back] Note 256 See para 6.90 - 6.91 and in particular 6.91 n 141 above. [Back] Note 257 A 136-C (1988), 13 EHRR 453 (just satisfaction), discussed at paras 6.90 - 6.91 above. [Back] Note 258 See above para 6.91 n 141. The reasons for the amounts of the awards are not apparent
from the judgments. [Back] Note 259 A 130 (1988), 11 EHRR 259. [Back] Note 260 A 156 (1989), 12 EHRR 183. [Back] Note 261 A 226 (1992), 14 EHRR 615. [Back] Note 262 A 160 (1989), 12 EHRR 36. [Back] Note 263 The Court stated that even if such a procedure has been in place there was no guarantee that the result would have been the release of all the records to the applicant. Further, even if all the records had been released, there was no evidence to support the conclusion that the release of all the records would have had a favourable impact on the applicant’s earnings. [Back] Note 264 A 308 (1995), 20 EHRR 205. [Back] Note 265 A 299-A (1994), 19 EHRR 139. [Back] Note 266 The Court held that after 21 October 1993 the competent authorities had acted reasonably in taking account of the daughter’s wishes to remain with her grandparents. [Back] Note 267 A 290 (1994), 18 EHRR 342. [Back] Note 268 The applicant had brought guardianship and custody proceedings in an unsuccessful attempt to impede the adoption. As the Strasbourg Court noted, by the time these proceedings finished the scales concerning the child’s welfare “had tilted inevitably in favour of the prospective adopters”. A 290 (1994), 18 EHRR 342, para 59. [Back] Note 269 A 290 (1994), 18 EHRR 342, para 68. [Back] Note 270 See the discussion in Part III, paras 3.54 - 3.57 above. [Back] Note 271 See Khan v United Kingdom Application no 35394/97, 12 May 2000. [Back] Note 272 A 176-B (1990), 12 EHRR 547. [Back] Note 273 See also A v France A 277-B (1993), 17 EHRR 462, where the Strasbourg Court also gave no reasons for its decision. For more recent decisions in a similar vein, see Kopp v Switzerland 1998-II p 524, 27 EHRR 91 and Valenzuela Contreras v Spain 1998-V p 1909, 28 EHRR 485. [Back] Note 274 1997-III p 1004, 24 EHRR 523, discussed in Part III para 3.50. [Back] Note 275 Cf above, paras 3.47 - 3.51. An alternative view might be that this is a disguised form of punitive damages. [Back] Note 276 A 256-A (1993), 16 EHRR 297. [Back] Note 277 A 256-B (1993), 16 EHRR 357. [Back] Note 278 A 256-C (1993), 16 EHRR 332 (merits); A 277-C (1993) (just satisfaction). [Back] Note 279 On the grounds that Mr Miailhe’s bank accounts had been frozen for eight years following asset freezing orders made by the authorities, that he had incurred secretarial expenses in restoring order to his office and the documents seized, and travel expenses; and that his wife and mother had been deprived of papers they needed for day-to-day living and incurred other expenses. [Back] Note 280 Though the Strasbourg Court considered that he “must” have suffered non-pecuniary damage. Cf para 3.26 above. [Back] Note 281 A 251-B (1992), 16 EHRR 97. [Back] Note 282 In Abdulaziz, Cabales and Balkandali v United Kingdom A 94 (1985), 7 EHRR 471, the Court did not award damages for a violation of Art 8 taken together with Art 14. There was no violation of Art 8 standing alone. This case is considered in the discussion of Art14, see para 6.218. In Beldjoudi v France A 234-A (1992), 14 EHRR 801, the decision to deport had not yet been implemented, and accordingly no loss had been suffered. [Back] Note 283 A 138 (1988), 11 EHRR 322. [Back] Note 284 The first applicant also claimed pecuniary damage for loss of earnings because he was dismissed from his former job and was finding it impossible to find work in Morocco. The Court rejected this part of the claim because a causal link had not been established. [Back] Note 285 A 193 (1991), 13 EHRR 802. [Back] Note 286 A 45 (1981), 4 EHRR 149 (merits); A 59 (1983), 5 EHRR 573 (just satisfaction), referred to above, para 3.37. [Back] Note 287 In this case, the applicant had also been the subject of a police investigation with a view to a prosecution being initiated against him though in the event it was decided not to proceed with the investigation. However, damages in respect of the intrusion into the applicant’s private life due to the investigation were denied. The Court held that “the additional element of prejudice suffered as a consequence of the police investigation is not such as to call for further compensation by way of just satisfaction”. A 59 (1983), 5 EHRR 573 (just satisfaction), para 18. [Back] Note 288 A 142 (1988), 13 EHRR 186. [Back] Note 289 A 142 (1988), 13 EHRR 186, para 50. [Back] Note 290 Application no 35765/97, 31 July 2000. [Back] Note 291 Application no 35765/97, 31 July 2000, para 50, citing Dudgeon v United Kingdom A 59 (1983), 5 EHRR 573 (just satisfaction). [Back] Note 292 Application nos 33985/96 and 33986/96, 25 July 2000 (just satisfaction). [Back] Note 293 Though they were unable to submit expert evidence in support. [Back] Note 294 A 232-C (1992), 16 EHRR 1. [Back] Note 295 A 303-C (1994), 20 EHRR 277. [Back] Note 296 Though the environmental problems continued: the plant continued to emit “fumes, repetitive noise and strong smells”. [Back] Note 297 1998-I p 210, 26 EHRR 357. [Back] Note 298 A number of accidents affecting local people had already occurred by the time of the application. [Back] Note 299 1997-I p 323, 25 EHRR 371. [Back] Note 300 The Strasbourg Court rejected the applicant’s complaints in relation to the seizure of her medical records and the fact that her doctor had been obliged to testify against her. [Back] Note 301 A 31 (1979), 2 EHRR 330. [Back] Note 302 The judgment of the Strasbourg Court on Article 50 was given by a majority of nine judges to six. The minority gave an opinion arguing that an award of compensation for moral damage was necessary to give the applicants just satisfaction in the light of the affront to the feelings of the mother and the discrimination against the daughter. They noted that nothing in the Convention prevented the grant of ‘a token satisfaction appropriate to the individual concerned’. Cf para 4.74 n 139 above. [Back] Note 303 A 109 (1986), 11 EHRR 335 (merits); A124-C (1987) (just satisfaction). [Back] Note 304 Though the applicants were awarded £735 in respect of estate agents’ fees and the cost of a survey. [Back] Note 305 Application no 28341/95, 4 May 2000. [Back] Note 306 A 260-A (1993), 17 EHRR 397. [Back] Note 307 It is not clear whether the applicant paid the penalty or fine. If he did, it is puzzling that he did not claim an equivalent amount as damages for pecuniary loss. [Back] Note 308 1998-I p 362, 27 EHRR 329. [Back] Note 309 1996-IV p 1346, 23 EHRR 387. [Back] Note 310 Again, it is not clear whether the applicants paid the penalties or fines. [Back] Note 311 1996-VI p 2312, 24 EHRR 294. [Back] Note 312 A 103 (1986), 8 EHRR 407. [Back] Note 313 A 103 (1986), 8 EHRR 407, para 51. [Back] Note 314 A 246 (1992), 15 EHRR 244. [Back] Note 315 A 246 (1992), 15 EHRR 244, para 87. [Back] Note 316 A 246 (1992), 15 EHRR 244, para 87. [Back] Note 317 Applications nos 23536/94 and 24408/94, 8 July 1999. See also para 6.151 above, and 6.203 below. [Back] Note 318 The second applicant, the owner of a publishing house, had published a book by the first applicant, a professor of economics, entitled “Westernisation, Modernisation, Development - Collapse of a Paradigm/An Introduction to the Critique of Official Ideology”. [Back] Note 319 They were also awarded 40,000 French francs (£3,825) and 45,000 French francs (£4,300) respectively as damages for non-pecuniary loss: see below para 6.203. [Back] Note 320 Application no 26132/95, 2 May 2000. [Back] Note 321 It noted that in the circumstances, given that the articles were accurate and the criticisms of the doctor justified, his interest in protecting his reputation was not sufficient to outweigh the public interest in the freedom of the press to impart information on matters of legitimate public concern. [Back] Note 322 In addition to the cases noted here, see for example Castells v Spain A 236 (1992), 14 EHRR 445 (see para 6.202 below in relation to non-pecuniary loss); Thorgeir Thorgeirson v Iceland A 239 (1992), 14 EHRR 843; Grigoriades v Greece 1997-VII p 2575, 27 EHRR 464; Incal v Turkey 1998-IV p 1547 (see para 6.203 below); Hertel v Switzerland 1998-VI p 2298, 28 EHRR 534; and News Verlags GmbH & Co KG v Austria Application no 31457/96, 11 January 2000. [Back] Note 323 A 302 (1994), 20 EHRR 56. [Back] Note 324 The second applicant was the distributor of the magazine. [Back] Note 325 A 276 (1993), 17 EHRR 93. [Back] Note 326 A 276 (1993), 17 EHRR 93, para 46. [Back] Note 327 1997-VI p 2188, 25 EHRR 185. [Back] Note 328 A 236 (1992), 14 EHRR 445. [Back] Note 329 A 298 (1994), 19 EHRR 1. [Back] Note 330 1997-I p 198, 25 EHRR 1. [Back] Note 331 See further Barthold v Germany A 90 (1985), 7 EHRR 383; Weber v Switzerland A 177 (1990), 12 EHRR 508; Oberschlick v Austria A 204 (1991), 19 EHRR 389; Piermont v France A 314 (1995), 20 EHRR 301; Bowman v United Kingdom 1998-I p 105, 26 EHRR 1; and News Verlags GmbH & Co v Austria Application no 31457/96, 11 January 2000. [Back] Note 332 In addition to the cases immediately following, see Steel v United Kingdom 1998-VII p 2719, 28 EHRR 603, noted at para 6.36 above. [Back] Note 333 Applications nos 23536/94 and 24408/94, 8 July 1999: see paras 6.151 and 6.198 above. [Back] Note 334 1998-IV p 1547. [Back] Note 335 A 44 (1981), 4 EHRR 38 (merits); A 55 (1982), 5 EHRR 201 (just satisfaction). See further Sigurjonsson v Iceland A 264 (1993), 16 EHRR 462. [Back] Note 336 The Trade Union and Labour Relations Act 1974 permitted an employer to dismiss an employee for refusing to join a specified trade union. [Back] Note 337 Mr Webster claimed an additional sum of £6,200 for personal expenses. The Court dismissed this claim, observing that it was unsupported by any evidence. [Back] Note 338 The Court was probably influenced by Mr Young’s statement that he was “reasonably satisfied” with the Government’s offer, and the fact that Mr James “did not lay stress on the differences in question”: A 55 (1982), 5 EHRR 201, para 11. [Back] Note 339 A 55 (1982), 5 EHRR 201, para 12. [Back] Note 340 A 202 (1991), 14 EHRR 362. [Back] Note 341 1998-I p 1, 26 EHRR 121. [Back] Note 342 A puzzling feature of this case is the TBKP’s failure to claim, as a separate head of pecuniary loss, damages in respect of the confiscated assets. [Back] Note 343 1998-I p 1, 26 EHRR 121, para 69. [Back] Note 344 See further Sidiropoulos v Greece 1998-IV p 1594, 27 EHRR 633. [Back] Note 345 1998-III p 1233, 27 EHRR 51. [Back] Note 346 A puzzling feature of this case is the SP’s failure to claim, as a separate head of pecuniary loss, damages in respect of the confiscated assets. [Back] Note 347 1998-I p 1, 26 EHRR 121, discussed at paras 6.208 - 6.209 above. [Back] Note 348 1998-III p 1233, 27 EHRR 51, para 67. The TBKP had never been active. [Back] Note 349 A 128 (1987), 10 EHRR 411. [Back] Note 350 A 128 (1987), 10 EHRR 411, para 44. [Back] Note 351 The applicant had also demanded that Switzerland should abolish the prohibition on remarriage in Article 150 of the Swiss Civil Code. The Strasbourg Court noted that the Convention does not give it jurisdiction to order Switzerland to alter its legislation. Cf para 3.31 above. [Back] Note 352 A 128 (1987), 10 EHRR 411, para 45. The Court may have doubted the applicant’s sincerity. In describing the circumstances surrounding his third marriage and divorce, the Swiss Federal Court characterised the applicant’s attitude as “capricious”.
He pressed his mistress to marry him despite the shortness of their acquaintance [a little over a month] and then only a few days after the ceremony said he wanted a divorce without giving any valid explanation. By this capricious attitude he showed that he was making a mockery of the institution of marriage.
[Back] Note 353 Lord Lester of Herne Hill and D Pannick (eds), Human Rights Law and Practice (1999), 4.14.4. [Back] Note 354 In addition to the cases discussed here, see Marckx v Belgium A 31 (1979), 2 EHRR 330 (see para 6.187 above); Inze v Austria A 126 (1987), 10 EHRR 394 and Schuler-Zgraggen v Switzerland A 263 (1993), 16 EHRR 405 (merits), A 305-A (1995), 21 EHRR 404 (just satisfaction) discussed at para 3.73 above; Thlimmenos v Greece Application no 34369/97. [Back] Note 355 A 291-B (1994), 18 EHRR 513. [Back] Note 356 See further Darby v Sweden A 187 (1990), 13 EHRR 774 (see para 3.71 above). [Back] Note 357 1997-I p 173, 24 EHRR 503. [Back] Note 358 1997-I p 173, 24 EHRR 503, para 48. [Back] Note 359 Judge Foighel dissented on the grounds that this decision was inconsistent with Schmidt v Germany. See 1997-I p 173, 24 EHRR 503, 522. [Back] Note 360 The Strasbourg Court may have been influenced by the fact that, in the absence of discrimination in violation of Article 14, the applicant would not have had to pay less - others would have been obliged to pay more. [Back] Note 361 1996-IV p 1129, 23 EHRR 364. [Back] Note 362 “The sum of 200,000 Austrian schillings which the Court has awarded him is more than twice as high as the pecuniary damage he can possibly have sustained; that is manifestly contrary to all the principles governing compensation for pecuniary damage”: 1996-IV p 1129, 23 EHRR 364, 385. The calculations on which he based these comments do not appear from the judgment. [Back] Note 363 A 94 (1985), 7 EHRR 471. [Back] Note 364 A 94 (1985), 7 EHRR 471, para 96. [Back] Note 365 A 222 (1991), 14 EHRR 319 (merits); A 246-B (1993), 16 EHRR 379 (just satisfaction). [Back] Note 366 It was also common ground that 13,500 Irish pounds (£11,260) fell to be deducted from the from the applicants’ compensation. This sum represented the potential rental income of the site from 28 July 1982 to June 1988, the date on which the site was sold by the second applicant’s receivers. [Back] Note 367 The judgment is of interest in the unusual degree of detail with which the issue of pecuniary loss was considered. The Court referred to the evidence of the purchase price of the land in 1978 and increases in value since then; sale prices of comparable land; the likely costs of infrastructure improvements; likely delays in obtaining detailed permission; and the fact that the limited period of the retrospective permission would have limited the potential market: A 246-B (1993), 16 EHRR 379, para 11. On the interest point, see para 3.71 above. [Back] Note 368 A 246-B (1993), 16 EHRR 379, para 16. [Back] Note 369 A 246-B (1993), 16 EHRR 379, para 17. [Back] Note 370 1997-VIII p 2843, 27 EHRR 521. [Back] Note 371 1997-VIII p 2843, 27 EHRR 521, para 52. [Back] Note 372 1997-VIII p 2843, 27 EHRR 521, para 55. The award of the full amount is surprising, since it makes no allowance for the uncertainty of the legal proceedings, had they been allowed to continue. [Back] Note 373 In addition to the cases noted in the following paragraphs, see AO v Italy Application 22534/93, 30 May 2000. [Back] Note 374 See also Pine Valley Developments Ltd v Ireland A 222 (1991), 14 EHRR 319 (merits); A 246-B (1993), 16 EHRR 379 (just satisfaction). In this case there was a breach of Article 14 taken in conjunction with Article 1 of Protocol No 1, and substantial awards were made for both pecuniary and non-pecuniary loss. See above, paras 6.219 - 6.222. [Back] Note 375 For examples not described in detail here, see Raimondo v Italy A 281-A (1994), 18 EHRR 237 and AO v Italy Application 22534/93, 30 May 2000. [Back] Note 376 A 260-B (1993), 16 EHRR 440 (merits); A 330-B (1995), 21 EHRR 439 (just satisfaction). [Back] Note 377 A 330-B (1995), 21 EHRR 439, para 36. [Back] Note 378 A 330-B (1995), 21 EHRR 439, para 37. For a similar approach, see Hentrich v France A 296-A (1994), 18 EHRR 440 (merits); A 322 (1995), 21 EHRR 199 (just satisfaction). [Back] Note 379 A 330-B (1995), 21 EHRR 439, para 39. [Back] Note 380 A 330-B (1995) 21 EHRR 439, para 40 (read in conjunction with para 38). Cf paras 4.77 and 5.5 above. [Back] Note 381 (1928) PCIJ Series A no 17, p 47. [Back] Note 382 With interest at 6%, running from 6 months after the date of the decision until payment. See para 3.75 above. [Back] Note 383 450,000 Greek drachmas (£1,230) to each of the fourteen applicants. [Back] Note 384 1998-III p 1064, 28 EHRR 241. [Back] Note 385 1998-III p 1064, 28 EHRR 241, para 61. [Back] Note 386 1998-III p 1064, 28 EHRR 241, para 64. She was also awarded costs and expenses; and interest would be payable on any sums not paid to her within three months of judgment: see paras 66 - 67. [Back] Note 387 A 301-B (1994), 19 EHRR 293. See also para 3.72 above. [Back] Note 388 On the question of interest, the Court noted that “the adequacy of the compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as the fact that 10 years have elapsed since the arbitration decision was rendered”. Simple interest was awarded at 6% from 27 February 1984 to the date of the judgment (A 301-B (1994), 19 EHRR 293, paras 82 - 83). Cf paras 3.70 - 3.74 above. [Back] Note 389 A 332 (1995), 21 EHRR 301 (merits); 1997-IV p 1292, 24 EHRR CD 16 (just satisfaction). [Back] Note 390 The twenty-fifth. [Back] Note 391 The Strasbourg Court held that it was not appropriate to apply Article 50 to the other applicants until the Belgian courts had given a final ruling on the disputes in question. [Back] Note 392 1997-IV p 1292, 24 EHRR CD16, para 20. Cf para 3.68. [Back] Note 393 A 85 (1984), 7 EHRR 256. See also para 3.24 above. [Back] Note 394 A 315-C (1995), 22 EHRR 514. [Back] Note 395 See also Salesi v Italy A 257-E (1993), 26 EHRR 187; and see Guincho v Portugal A 81 (1984), 7 EHRR 223; Lechner and Hess v Austria A 118 (1987), 9 EHRR 490; Martins Moreira v Portugal A 133 (1988), 13 EHRR 517 (see para 3.62 above); Unión Alimentaria Sanders SA v Spain A 157 (1989), 12 EHRR 24; Silva Pontes v Portugal A 286-A (1994), 18 EHRR 156; and Matos e Silva Lda v Portugal 1996-IV p 1092, 24 EHRR 573. [Back] Note 396 1997-I p 149, 25 EHRR 435 (merits), 1998-VI p 2544 (just satisfaction). [Back] Note 397 See para 6.124 above. [Back] Note 398 1998-VI p 2544 (just satisfaction), para 24. Cf paras 3.70 - 3.74 above. [Back] Note 399 1998-VI p 2544 (just satisfaction), para 24. [Back] Note 400 1996-IV p 1192, 23 EHRR 143 (merits), 1998-II p 711 (just satisfaction). [Back] Note 401 A similar approach was used in Selçuk and Asker v Turkey 1998-II p 891, 26 EHRR 477. [Back] Note 402 See also Loizidou v Turkey 1998-VI p 1807, 26 EHRR CD5 (just satisfaction). [Back] Note 403 A 48 (1982), 4 EHRR 293. [Back] Note 404 In respect of Mrs Campbell, the Court might have been influenced by a newspaper report that her son was attending a fee-paying secondary school that also utilised corporal punishment (a report which was not denied by Mrs Campbell). [Back] Note 405 A 48 (1982), 4 EHRR 293, para 23. In fact, between 1976 and 1982, Jeffrey had been in gainful employment for little more than twelve weeks. [Back] Note 406 A 48 (1982), 4 EHRR 293, para 26. [Back] Note 409 Application no 26772/95, 6 April 2000. [Back] Note 410 The Court found violations of Articles 3, 5(1), 5(3), 8, Article 3 of Protocol No 1 and Article 2 of Protocol 4. See further para 6.57 above. [Back] Note 411 The Court also found a violation of Article 3 of Protocol No 1 in Matthews v United Kingdom Application no 24833/94, 18 February 1999, 28 EHRR 361. However, there the applicant limited his claim under Article 41 to costs and expenses. [Back]
