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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM (ARTICLE 50) - 12244/86;12245/86;12383/86 [1991] ECHR 27 (27 March 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/27.html
Cite as: (1992) 14 EHRR 108, [1991] ECHR 27, 14 EHRR 108
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In the case of Fox, Campbell and Hartley*,
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 R. Ryssdal, President,
Mr J. Cremona,
Mr J. Pinheiro Farinha,
Sir Vincent Evans,
Mr R. Bernhardt,
Mr S.K. Martens,
Mrs E. Palm,
and also of Mr M.-A. Eissen, Registrar,
Having deliberated in private on 20 February and 21 March 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Notes by the Registrar: The case is numbered 18/1989/178/234-236.
The first number is the case's position on the list of cases
referred to the Court in the relevant year (second number). The
last two numbers indicate the case's position on the list of cases
referred to the Court since its creation and on the list of the
corresponding originating applications to the Commission.
** The amendments to the Rules of Court which entered into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE AND FACTS
1. The case was brought before the Court by the European
Commission of Human Rights ("the Commission") on 13 July 1989.
It originated in three applications (nos. 12244/86, 12245/86 and
12383/86) against the United Kingdom of Great Britain and Northern
Ireland lodged with the Commission on 16 June 1986 by
Mr Bernard Fox and Ms Maire Campbell and on 2 September 1986
by Mr Samuel Hartley, who are all three Irish citizens.
As regards the facts of the case, reference is made to
paragraphs 8 to 23 of the Court's judgment of 30 August 1990 ("the
principal judgment" - Series A no. 182, pp. 8-14). The applicants'
complaints were directed against their arrest and detention under
criminal legislation enacted to deal with acts of terrorism
connected with the affairs of Northern Ireland.
2. In the principal judgment the Court arrived at the
following conclusions as regards all three applicants:
(a) there had been a breach of Article 5 para. 1 (art. 5-1) of the
Convention, in that although the applicants' arrest and detention
had been based on a bona fide suspicion that they were terrorists,
the explanations furnished by the United Kingdom Government were
insufficient to support the conclusion that there was "reasonable
suspicion"; that being so, it was not necessary to go into the
applicants' further allegation that the purpose of their arrest was
not to bring them before the "competent legal authority" but rather
to gather information (paragraphs 29-36 of the reasons and point 1
of the operative provisions, pp. 15-18 and 22);
(b) there had been no breach of Article 5 para. 2 (art. 5-2) since
the reasons for the applicants' detention had been brought to their
attention with sufficient promptness after their arrest
(paragraphs 37-43 of the reasons and point 2 of the operative
provisions, pp. 18-20 and 22);
(c) it was unnecessary to examine the complaint under
Article 5 para. 4 (art. 5-4) as the applicants had been released
speedily before any judicial control of their detention had taken
place and it was not for the Court to rule in abstracto on the
scope of the remedies available (paragraphs 44-45 of the reasons
and point 4 of the operative provisions, pp. 20-21 and 22);
(d) there had been a breach of Article 5 para. 5 (art. 5-5), in
that the applicants had no enforceable claim for compensation
before the domestic courts for the breach of Article 5 para. 1
(art. 5-1) (paragraph 46 of the reasons and point 3 of the
operative provisions, pp. 21 and 22);
(e) it was unnecessary to examine the complaint under Article 13
(art. 13) having regard to the findings on Article 5 paras. 2 and
4 (art. 5-2, art. 5-4) (paragraph 47 of the reasons and point 4 of
the operative provisions, pp. 21 and 22).
3. In written observations of 9 March, 18 May and
21 June 1990, the applicants had claimed compensation for pecuniary
and non-pecuniary damage and reimbursement of their costs and
expenses referable to the proceedings before the Convention
institutions. The Government had commented on the costs claim on
23 May and 27 July but had considered it more appropriate to
reserve their submissions as to the compensation claim until the
delivery of the judgment on the substantive issues.
As the question of the application of Article 50 (art. 50) was
therefore not ready for decision, the Court in the principal
judgment reserved the whole of the said question and invited the
Government and the applicants to submit their written comments
within the next three months and, in particular, to notify the
Court of any agreement reached between them (paragraph 48 of the
reasons and point 5 of the operative provisions, pp. 21-22).
4. In accordance with the foregoing invitation and the
President's directions, there were filed at the registry,
on 23 November 1990, a memorial of the Government and,
on 28 January 1991, further observations of the applicants, in
which they requested an oral hearing. These documents revealed
that no agreement as aforesaid had been reached.
On 14 February 1991 the Delegate of the Commission lodged
observations on the question of the application of Article 50
(art. 50) in the present case.
5. The Court decided on 20 February 1991 that there was no
need to hold a hearing.
AS TO THE LAW
6. Article 50 (art. 50) of the Convention provides as follows:
"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."
A. Costs and expenses
7. For costs and expenses referable to the proceedings before
the Convention institutions the applicants jointly sought
reimbursement of £70,001, exclusive of value-added tax, and
7,993 French francs; the amounts claimed related to the fees and
disbursements of their solicitors and counsel and to travel and
subsistence expenses.
The Government submitted that the applicants' overall claim was
"wholly excessive": while they had claimed £27,000 as fees for
senior and junior counsel, the Government considered that £15,000
would be appropriate; and whereas the applicants had claimed
solicitors' fees for 115 hours of work at £300 per hour, the
Government considered that 80 hours at £75 per hour would be
reasonable. The Government also noted that some of the items had
already been covered by the payments received from the Council of
Europe by way of legal aid. Furthermore, they argued that, as
the Court had found a violation in respect of only one of the
applicants' substantive claims - the claim under Article 5
para. 1 (art. 5-1) concerning "reasonable suspicion" -, only an
appropriate proportion of their claim should be allowed. They
suggested that a sum not in excess of £11,000 should be awarded.
These submissions were contested by the applicants, who maintained
notably that their cases were prepared and presented as a whole.
The Delegate of the Commission considered that the applicants
should receive a sum to cover their reasonable legal costs, but
made no proposal as to quantum, leaving the matter to the Court's
discretion.
8. The Court has examined the claim in the light of the
criteria followed in its case-law and of the above-mentioned
observations.
The applicants have received from the Council of Europe
32,257.19 French francs in respect of their travel and subsistence
expenses and the Court does not find it necessary to make any
further award under this head.
As regards lawyers' fees, the Court finds that, for the reasons
advanced by the Government, the claim cannot be accepted in full.
Taking this into account and also the legal aid payment of
12,690.00 French francs already made in respect of fees and making
an assessment on an equitable basis, the Court holds that the
applicants should be awarded jointly £11,000. This figure is to be
increased by any value-added tax that may be chargeable.
B. Damage
9. The applicants claimed, by way of pecuniary damage, only
the difference between the costs and expenses actually awarded and
the amount they were legally obliged to pay. This claim cannot be
entertained, the issue of costs having been determined in
paragraphs 7-8 above (see, mutatis mutandis, the Brogan and Others
judgment of 30 May 1989, Series A no. 152-B, p. 44, para. 7).
10. By way of non-pecuniary damage, the applicants sought
compensation for the prejudice sustained as a result of the
breaches of Article 5 (art. 5). They submitted that the amount
payable by way of just satisfaction ought not to be less than that
which would have been payable under domestic law if any relief had
been available thereunder. Furthermore they requested that the
Court have particular regard to the conditions of detention in
assessing compensation.
The Government contended that an award of any sum by way of
compensation for non-pecuniary loss was in the present case both
inappropriate and unnecessary, no causal link having been
established between the non-pecuniary damage alleged and the
particular violation of Article 5 para. 1 (art. 5-1) found by the
Court. Even if it had been, they submitted that, having regard to
all the circumstances, the finding of a violation of
Articles 5 para. 1 and 5 para. 5 (art. 5-1, art. 5-5) constituted
sufficient just satisfaction for the purposes of Article 50
(art. 50).
The Delegate of the Commission considered that the applicants
should be awarded a sum in compensation; he left the matter of
quantum to the Court.
11. The Court does not exclude that the applicants may have
sustained some non-pecuniary damage as a result of the breaches of
Article 5 (art. 5). However, having regard to the circumstances of
the case and the reasons leading to the decisions recorded in
paragraphs 2 (b) and (c) above, it considers that even in that
event the finding in the principal judgment of violations of
Article 5 (art. 5) in itself constitutes sufficient just
satisfaction for the purposes of Article 50 (art. 50).
FOR THESE REASONS, THE COURT
1. Holds unanimously that the United Kingdom is to pay to the
applicants jointly, in respect of costs and expenses, the sum of
£11,000 (eleven thousand pounds), together with any value-added tax
that may be chargeable;
2. Holds by six votes to one that, in respect of non-pecuniary
damage, the principal judgment in itself constitutes sufficient
just satisfaction for the purposes of Article 50 (art. 50);
3. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and notified in writing on
27 March 1991 pursuant to Rule 55 para. 2, second sub-paragraph,
of the Rules of Court.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 53 para. 2 of the Rules of Court, the dissenting opinion
of Mr Pinheiro Farinha is annexed to this judgment.
Initialled: R. R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE PINHEIRO FARINHA
(Translation)
1. I am unable to agree with the position adopted by my
colleagues in paragraph 11 of the judgment.
2. I share the view of the Delegate of the Commission that
the applicants should have been awarded compensation. Under
Article 5 para. 5 (art. 5-5) a "victim of arrest or detention in
contravention of the provisions of [the] Article" must always be
compensated.
In this instance "the applicants had no enforceable claim for
compensation before the domestic courts for the breach of
Article 5 para. 1 (art. 5-1)" (see paragraph 2 (d) of the
Article 50 judgment). For this reason I consider that they should
have been awarded some financial compensation for non-pecuniary
damage.