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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GILLOW v. THE UNITED KINGDOM (ARTICLE 50) - 9063/80 [1987] ECHR 23 (14 September 1987)
URL: http://www.bailii.org/eu/cases/ECHR/1987/23.html
Cite as: (1991) 13 EHRR 593, [1987] ECHR 23
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In the Gillow case*,
_______________
* Note by the Registrar: The case is numbered 13/1984/85/132.
The second figure indicates the year in which the case was
referred to the Court and the first figure its place on
the list of cases referred in that year; the last two figures
indicate, respectively, the case's order on the list of
cases and of originating applications (to the Commission)
referred to the Court since its creation.
_______________
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr. G. Wiarda, President,
Mr. R. Ryssdal,
Mr. J. Cremona,
Mr. W. Ganshof van der Meersch,
Mr. F. Gölcüklü,
Sir Vincent Evans,
Mr. C. Russo,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,
Deputy Registrar,
Having deliberated in private on 22 May and on 24 and 25 August 1987,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE AND FACTS
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 19 December 1984. The case
originated in an application (no. 9063/80) against the United Kingdom
of Great Britain and Northern Ireland lodged with the Commission in
1980 by Mr. Joseph and Mrs. Yvonne Gillow, British citizens.
2. By judgment of 24 November 1986, the Court held, inter alia,
that there had been a breach of Article 8 (art. 8) of the Convention
by reason of the way in which the Guernsey Housing Laws were applied
in the applicants' case (Series A no. 109, paragraphs 57-58 of the
reasons and point 2 of the operative provisions, pp. 23-24 and 29).
The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the present case.
Accordingly, as regards the facts, reference should be made to
paragraphs 9-37 of the above-mentioned judgment (ibid., pp. 8-17).
3. The applicants had reserved their position on the application
of Article 50 (art. 50) until after having knowledge of the Court's
judgment on the merits. In these conditions, neither the Government
of the United Kingdom ("the Government") nor the Commission were able
to take any stand on the issue.
In its judgment of 24 November 1986, the Court accordingly reserved
the question, and invited the applicants, duly represented by a lawyer
in accordance with Rule 30 of the Rules of Court, to file within the
forthcoming three months any claim for just satisfaction that they
might have (ibid., paragraph 76 of the reasons and point 6 of the
operative provisions, p. 29).
4. Having duly appointed a lawyer, Mr. and Mrs. Gillow, in a
memorial of 17 February 1987, claimed just satisfaction in respect of
material and moral damage, as well as costs and expenses.
In accordance with the President's directions, the Government filed a
memorial on 24 April. On 19 May, the Secretary to the Commission
informed the Registrar that its Delegate did not intend to submit any
observations.
5. On 22 May 1987, the Chamber decided that, in the particular
circumstances, there was no need to hold oral hearings and directed
the Registrar to ask the applicants for particulars of the costs and
expenses claimed. This information was received on 20 July and
3 August 1987. The Government and the Commission commented thereon
on 5 and 21 August 1987, respectively.
6. On 30 June, Mrs. Gillow informed the Court that her husband
had died on 8 June 1987.
7. Subsequently, Mr. Cremona, Mr. Ganshof van der Meersch,
Mr. Gölcüklü and Mr. Russo, substitute judges, replaced
Mr. Thór Vilhjálmsson, Mr. Lagergren, Mr. Pettiti and Mr. Macdonald,
who were prevented from taking part in the final deliberation on 24
and 25 August 1987 (Rules 22 § 1 and 24 § 1).
AS TO THE LAW
8. Under Article 50 (art. 50) of the Convention,
"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 ... 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."
9. Mr. and Mrs. Gillow claimed just satisfaction in respect of
both pecuniary and moral damage and costs and expenses.
In addition, throughout the proceedings before the Court, they sought
an order directing the Government to restore their "residence
qualifications" in respect of Guernsey. The Court is not, however,
empowered under the Convention to make an order of this kind (see,
mutatis mutandis, the McGoff judgment of 26 October 1984,
Series A no. 83, p. 28, § 31).
I. Pecuniary damage
10. Mr. and Mrs. Gillow alleged that, as a result of the refusals
of permanent and temporary licences (see the above-mentioned Gillow
judgment, Series A no. 109, pp. 9-11, §§ 15, 16 and 20), they had been
obliged to sell their home "Whiteknights" and, on account of their
inferior bargaining position at the time, to accept a price less than
the true market value. They further contended that the compensation
payable to them should include a sum equal to the difference between
the proceeds of sale of "Whiteknights" and what they would have to pay
for a replacement property in Guernsey. Under these heads, they
claimed a total sum of £50,000. They also sought reimbursement of
estate agents' fees on the sale of "Whiteknights" and fees for a house
survey, totalling £735.
The Government contested these claims. In their view, the sale in
question had not been necessitated by the refusal of licences and, in
any event, had been premature in that it was effected prior to the
determination of Mrs. Gillow's appeal to the Royal Court (ibid.,
p. 12, §§ 24-25). Furthermore, the claims in respect of loss on the
sale and the costs of a replacement property were imprecise and
unsubstantiated by evidence.
11. It is true that the refusal of licences did not oblige the
applicants to sell "Whiteknights", for there was nothing to prevent
them from letting the property. However, since they were refused a
licence to occupy the house themselves, the Court does not consider
that they acted unreasonably in deciding to dispose of it. It is
therefore appropriate that the above-mentioned fees of £735 should be
reimbursed.
As regards the alleged loss on the sale, the Court notes that the
applicants obtained a price which fell within the range of the initial
valuation made by the estate agents (see paragraph 150 of the
Commission's report). It is not established that the price was less
than the market value at the time. This claim cannot therefore be
accepted.
The claim relating to the costs of a replacement property is likewise
unsubstantiated by evidence.
12. The applicants maintained that had they been permitted to
continue to live in Guernsey, they would have been able to work there
for a further four years, each at a salary of £8,000 a year
- Mr. Gillow as a horticultural consultant and Mrs. Gillow as a
teacher. They accordingly sought £64,000 for loss of earnings.
The Court agrees with the Government that this claim must be rejected,
since there is no evidence establishing that the applicants would have
been able to find employment in these capacities in Guernsey at the
time.
II. Moral damage
13. The applicants claimed £100,000 for "moral damage". In their
submission, they had since 1978 sustained substantial prejudice as a
result of the Housing Authority's decisions; during this long period,
their inability to lead a settled existence had dominated their lives;
and the denial of their right to respect for their home and the
subsequent prolonged hardship occasioned by the repeated refusals of
temporary licences had caused them severe stress and anxiety.
The Government contended that, in the circumstances of the case, the
Court's finding of violation of the Convention constituted in itself
sufficient just satisfaction under this head. In the alternative,
they argued that the sum claimed was disproportionate and suggested a
figure of £1,000.
14. In the Court's view, Mr. and Mrs. Gillow undoubtedly sustained
significant moral damage which cannot be compensated solely by the
finding of a violation. For one year, they 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 (see the above-mentioned
Gillow judgment, Series A no. 109, p. 23, § 57). 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 and
in settling elsewhere.
15. Taking all the relevant factors into account and making an
assessment on an equitable basis, as is required by Article 50
(art. 50), the Court awards the sum of £10,000 under this head.
III. Costs and expenses
16. The applicants sought reimbursement of various items of
expenditure which they said they had incurred.
The Government pointed out that no vouchers had been supplied in
respect of these items and contended that certain of them were either
not necessary or not reasonable in amount.
17. The Court has examined the claims under this head in the light
of the criteria which emerge from its established case-law (see,
amongst other authorities, the Zimmermann and Steiner judgment
of 13 July 1983, Series A no. 66, p. 14, § 36).
(a) Miscellaneous expenses
18. The applicants claimed £634 for legal and court costs incurred
in Guernsey and for other sundry expenses. These items were not
contested by the Government. The Court allows this sum, which it
finds reasonable.
(b) Travel and subsistence expenses
19. The applicants sought reimbursement of travel and subsistence
expenses relating to:
(i) five visits by them to Strasbourg for consultations with the
Secretariat of the Commission and the registry of the Court (£1,950);
(ii) their attendance at the Commission's hearing on 9 December 1982
(£600);
(iii) their attendance at the delivery of the Court's judgment
of 24 November 1986 (£600);
(iv) Mr. Dun's services in connection with the Court's hearing
on 18 February 1986 (£1,300).
The applicants made no claim in respect of their attendance at the
last-mentioned hearing, their expenses on this occasion having being
paid by the Council of Europe.
20. No vouchers have been supplied in respect of item (i), but the
Court is in any event unable to accept it. The matters discussed in
the consultations could have been dealt with by correspondence, with
the result that this expenditure cannot be regarded as necessarily
incurred.
The same applies to item (iv). Mr. Dun attended the Court's hearing
of his own free will and the Court had not been informed in advance of
his presence. He acted neither as the representative of the
applicants nor as a person approved by the President of the Chamber to
assist them (Rule 30 of the Rules of Court).
21. On the other hand, the Court considers that items (ii) and
(iii) can be regarded as necessarily incurred. The applicants
presented their own case before the Commission and thus obviously had
to be present at its hearing. The Court also finds that it was
justified for them to attend at the delivery of its 1986 judgment;
unlike the applicants in the Sunday Times case, on which the
Government relied on this point (see the judgment of 6 November 1980,
Series A no. 38, p. 16, § 35), Mr. and Mrs. Gillow were still not, at
this stage, represented by a lawyer.
The amounts claimed for items (ii) and (iii) appear to the Court to be
reasonable, and it therefore allows them both.
(c) Costs relating to the Article 50 (art. 50) proceedings
22. Finally, the applicants claimed £1,000 in respect of the fees
of Mr. Bencini, the lawyer who represented them in the Article 50
(art. 50) proceedings. Fees for this purpose were incurred in
compliance with the Court's own direction (see the above-mentioned
Gillow judgment, Series A no. 109, point 6 (b) of the operative
provisions, p. 29). As to quantum, the Court, in view of the limited
role played by this lawyer at this final stage of the proceedings,
considers £300 (three hundred pounds sterling) to be reasonable.
IV. Payment of the amounts awarded
23. Since this case relates to events and their consequences which
were experienced by Mr. and Mrs. Gillow together, the Court considers
it equitable that all the sums awarded in this judgment should be paid
to the survivor of them, Mrs. Gillow.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the United Kingdom is to pay to Mrs. Gillow £10,735
(ten thousand seven hundred and thirty-five pounds) for damage and
£2,134 (two thousand one hundred and thirty-four pounds) for costs and
expenses;
2. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, and notified in writing on
14 September 1987 pursuant to Rule 54 § 2, second sub-paragraph, of
the Rules of Court.
Signed: Gérard WIARDA
President
Signed: Marc-André EISSEN
Registrar