European Court of Human Rights

The only outstanding matter to be settled in the present case is the question of the application of Article 50 (art. 50). Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 30 of the above-mentioned judgment (ibid., pp. 6-14).

In its judgment of 5 November 1981, the Court reserved the whole of this question. The Commission was invited to submit to the Court, within the coming two months, written observations thereon and, in particular, to notify the Court of any friendly settlement at which the Government and the applicant’s next of kin might have arrived (see point 4 of the operative provisions and paragraph 67 of the reasons, ibid., pp. 29 and 28).

On this date, the Secretary to the Commission, acting on the Delegate’s instructions, transmitted to the registry copies of correspondence giving details of the negotiations between the Government and the applicant’s representatives, together with the Delegate’s observations thereon. These documents revealed that although opinions on certain items were not widely diverse, no overall settlement had been reached.

(a) for reform of the domestic law to bring it into line with the requirements of the Convention;

(b) for financial compensation for damage caused by the breach of Article 5 § 4 (art. 5-4);

(c) for reimbursement of costs necessarily incurred.

For ease of reference, further particulars of these claims are set out below in the section "As to the law".

AS TO THE LAW

I. INTRODUCTION

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The claim under Article 50 (art. 50), at any rate in relation to costs and compensation, was formulated by X’s former representatives as being made "on behalf of the applicant’s estate and its beneficiaries". Indeed they, in common with the Government and the Commission, have pleaded on the assumption that a claim for just satisfaction vested in a deceased person may survive for the benefit of his estate. The Court accepts that in principle this will be so, at least in respect of material damage and costs (see the Deweer judgment of 27 February 1980, Series A no. 35, pp. 19-20, § 37, and the above-mentioned judgment of 5 November 1981 in the present case, Series A no. 46, p. 15, § 32). In this context, it is also to be noted that X’s next of kin, while having stated their wish that the case should proceed despite X’s death, did not allege to have suffered any prejudice in their own right apart from a continuing liability in respect of costs.

II. REFORM OF THE LAW

Subject only to the timing of the entry into force of the relevant proposals, the applicant’s estate shared this view; it therefore urged that consideration should be given either to earlier implementation or to some transitional system of compensation.

The Delegate of the Commission had no observations to make on this aspect of the claim.

III. COMPENSATION FOR DAMAGE CAUSED BY THE BREACH

The Government maintained that the claim to financial compensation was ill-founded. In their main submission, insufficient evidence had been adduced to support the claim as made out. In the alternative, they contended that even if the available evidence did suffice to establish the suffering of mental distress as alleged, financial compensation payable to X’s estate was not "necessary" to afford just satisfaction under Article 50 (art. 50).

The Delegate of the Commission had no observations to make on this aspect of the claim.

Consequently, there being no causal link with the sole breach found by the Court (see the Neumeister judgment of 7 May 1974, Series A no. 17, p. 18, § 40), no compensation is recoverable in respect of mental suffering attributable to the deprivation of liberty in itself or to the habeas corpus proceedings in so far as they related to X’s compulsory readmission to hospital as an emergency measure. The only distress capable of giving rise to an award of just satisfaction is that which the applicant would not have sustained had there been available to him an adequate remedy to review the lawfulness of the continuation of his detention until February 1976.

In the light of the foregoing, the Court shares the view put forward by the Government in their alternative submission: in the particular circumstances, the cause of justice would not be advanced by awarding a sum of money to be received by X’s estate in compensation for any mental distress that X might have suffered by reason of the breach of Article 5 § 4 (art. 5-4). Accordingly, it is not necessary for the purposes of Article 50 (art. 50) to afford just satisfaction in the form of pecuniary compensation as claimed.

IV. COSTS

A. Domestic costs

(i) Habeas corpus proceedings

The Government judged that the award sought served no useful purpose as it would involve a mere accounting procedure from one government fund to another. In view of this, the applicant’s estate declared that it did not press the claim, with the result that the Court is not required to rule on this head of claim.

(ii) Attendance before a Mental Health Review Tribunal and at a meeting at the Home Office

In the submission of the Government, no charge ever having being made to X by his representative, it cannot properly be maintained that the costs in issue were actually incurred by X.

The Delegate of the Commission had no observations on this claim, save to note that if the Court were to pursue the matter, it would have to establish a breakdown of the costs and whether they were reasonable and necessary.

The Court is therefore satisfied that the costs in issue were actually incurred by X. Finally, in the absence of any argument to the contrary from the Government, the Court sees no reason to doubt that the costs were necessarily incurred and reasonable as to quantum.

B. Strasbourg costs

- for legal services prior to the grant of legal aid by the Commission: £250 (plus value added tax at 8%);

- for legal services thereafter: £10,000, less the amount paid out in legal aid by the Commission;

- £701.42 for lawyer’s out-of-pocket expenses.

Neither the Government nor the Commission suggested that the applicant or his estate had not actually incurred liability for costs additional to those covered by the Commission’s grant of legal aid (cf., inter alia, the Airey judgment of 6 February 1981, Series A no. 41, p. 9, § 13).

During the negotiations, the Government offered £7,000, less the sums already received from the Commission, in settlement. In reply, the applicant’s estate declared this offer to be acceptable. The Commission’s Delegate indicated that the sums paid under the grant of legal aid amounted to 21,160.22 FF.

FOR THESE REASONS, THE COURT

1.  Unanimously takes formal note of the agreement between the Government and the applicant’s estate concerning the Strasbourg costs;

2.  Holds unanimously that the United Kingdom is to pay to the applicant’s estate, in respect of the domestic costs, the sum of three hundred and twenty-four pounds sterling (£324), value added tax included;

3.  Rejects by six votes to one the remainder of the claim for just satisfaction.

Done in English and in French, the English text being authentic, at the Human Rights Building, Strasbourg, this eighteenth day of October, one thousand nine hundred and eighty-two.

For the President

Denise Bindschedler-Robert

Judge

Marc-André Eissen

Registrar

The separate opinion of Mr. Thór Vilhjálmsson is annexed to the present judgment in accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 50 § 2 of the Rules of Court.

D. B.-R.

M.-A. E.