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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> WELCH v. THE UNITED KINGDOM (ARTICLE 50) - 17440/90 [1996] ECHR 12 (26 February 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/12.html
Cite as: [1996] ECHR 12
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In the case of Welch v. the United Kingdom (1),
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 Rules of Court A (2),
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr R. Macdonald,
Mr J. De Meyer,
Mr I. Foighel,
Sir John Freeland,
Mr L. Wildhaber,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 27 January and
22 February 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 1/1994/448/527. 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.
2. Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) (1 October 1994) and
thereafter only to cases concerning States not bound by that
Protocol (P9). They correspond to the Rules that came into force
on 1 January 1983, as amended several times subsequently.
_______________
PROCEDURE AND FACTS
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 15 January 1994
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 17440/90) against the United Kingdom of
Great Britain and Northern Ireland lodged with the Commission
under Article 25 (art. 25) by a British citizen, Mr Peter Welch,
on 22 June 1990.
2. In a judgment of 9 February 1995 ("the principal
judgment", Series A no. 307-A), the Court found that the
confiscation order of 24 August 1988 made against the applicant
following his conviction for drugs offences amounted to the
retrospective imposition of a penalty in breach of Article 7
para. 1 (art. 7-1) of the Convention (ibid., pp. 11-15,
paras. 22-36, and point 1 of the operative provisions).
The Court also held that the respondent State was to pay
the applicant, within three months, £13,852.60, less the sums
paid by way of legal aid, in respect of costs and expenses
(ibid., p. 15, paras. 40-41, and point 2 of the operative
provisions).
3. As the question of the application of Article 50
(art. 50) was not ready for decision in respect of pecuniary and
non-pecuniary damage, the Court reserved it and invited the
Government and the applicant to submit in writing, within three
months, their observations on the matter and, in particular, to
notify the Court of any agreement they might reach (ibid., p. 15,
para. 39, and point 3 of the operative provisions).
4. The negotiations for an agreement having proved
unsuccessful, the Registrar received memorials from the
Government and the applicant on 4 and 5 May 1995 respectively
concerning the question of damage.
5. In accordance with an order of the President of
16 May 1995, comments on the claims made by the applicant were
submitted by the Government on 18 July. The applicant replied
to these submissions on 18 September. On 20 October a further
comment was received from the Government.
6. On 6 November 1995 the Secretary to the Commission
informed the Registrar that the Delegate had no observations to
make as regards the above submissions.
7. Mr R. Pekkanen, who was unable to take further part in
the case, was subsequently replaced by Mr F. Gölcüklü (Rule 22
para. 1 of Rules of Court A).
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."
In reliance upon this provision the applicant sought
compensation for alleged pecuniary and non-pecuniary damage and
reimbursement of costs and expenses incurred during the
Article 50 (art. 50) phase of the proceedings.
9. It is not in dispute that the confiscation order made
under the Drug Trafficking Offences Act 1986 ("the DTOA") has not
been enforced. Indeed it is the understanding of the Court that
the order, which has been found to be in breach of Article 7
para. 1 (art. 7-1) of the Convention, will not be enforced
against the applicant.
10. Since the discussions that followed the principal
judgment did not lead to agreement, the conditions for applying
Article 50 (art. 50) have been satisfied.
A. Pecuniary damage
11. The applicant pointed out that as a result of the
restraint order of 31 July 1987 made pursuant to section 7 of the
DTOA he was prevented from, inter alia, "... disposing of,
diminishing or otherwise in any way dealing with any ... property
... within or without the jurisdiction ...". In consequence, he
incurred various pecuniary losses for which he should be
compensated in order to place him, as far as possible, in the
situation he would have been in had the proceedings under the
DTOA not been instituted against him.
He made the following claims under this head:
(1) £110,000 loss of rental relating to his villa in
Portugal;
(2) £16,300 as a result of the villa in Portugal falling
into disrepair;
(3) £174,296 due to lost capital in properties situated
in the United Kingdom which were said to have
diminished in market value since the restraint order
was made and the cost of repairs; and
(4) £1000 which had been taken from him by the police
when he was arrested.
12. The Government contended, inter alia, that the claims
were wholly unwarranted and extravagant. They maintained that
the applicant had suffered no actual prejudice and that he had
failed to prove any direct or even indirect causal link between
the violation and the alleged pecuniary damage. Moreover, as
regards his various properties he could have applied to the High
Court to obtain a variation of the terms of the restraint order.
In their submission the Court should be on its guard lest
compensation is awarded in respect of damage which resulted, not
from the confiscation order, but from the fact that the applicant
was no longer able to indulge in drug trafficking after his
arrest, with the result that his source of income came to an end.
13. The Court considers that the applicant's claim must be
rejected under this head. In the first place it notes that the
applicant did not complain of the effects of the restraint order
under the DTOA before the Convention institutions, his complaint
being limited to the retrospective application of the
confiscation order in violation of Article 7 para. 1 (art. 7-1)
of the Convention. Moreover, as regards the villa in Portugal,
it was open to him under the relevant provisions of the DTOA to
apply to the High Court for a variation of the restraint order
to enable him to let the property if he so desired. Since rental
and upkeep of the property were also in the interests of the
national authorities who were seeking the confiscation order
there is no reason to suppose that they would have objected to
any such application designed to maintain the value of the asset.
Indeed it is noteworthy in this respect that a variation of the
order was sought and granted on 6 October 1987 in respect of the
applicant's house in the United Kingdom (No. 2 Antique Cottages,
Newcastle Emlyn, Wales).
14. As regards the real property in the United Kingdom, the
Court observes that one of the houses (7 Uplands Crescent,
Swansea, Wales), supposedly affected by the restraint order, in
fact belonged to the applicant's wife who was not associated in
the proceedings before it. It was also open to her to apply to
the High Court for a variation or discharge of the order on the
grounds that her husband was not the owner and had no interest
in the property. In addition, the other property, which was in
the applicant's name (2 Antique Cottages), had been sold, as
indicated above. The proceeds of sale were placed on deposit and
have been returned with interest since the Court's principal
judgment. No basis for his claim in respect of these properties
has thus been established.
15. Finally no claim can arise in respect of the £1,000 which
was seized when the applicant was arrested. This sum was
eventually forfeited by a court order under the Misuse of
Drugs Act 1971 and not as a result of the confiscation order
under the DTOA.
16. In sum, the Court does not consider that the alleged
losses can legitimately be said to result from the application
to Mr Welch of the confiscatory provisions of the DTOA.
B. Non-pecuniary damage
17. The applicant claimed more than £19,000 under this head
for loss of amenities. He referred in this context to, inter
alia, problems with creditors, debts, worries and financial
hardship generally as well as the fact that his wife and children
were denied access to her property.
18. The Government pointed out that the applicant's family
were not "victims" within the meaning of Article 50 (art. 50) and
submitted that no compensation should be paid in this connection.
19. The Court considers that, having regard to the
circumstances of the case, the finding of a violation of
Article 7 para. 1 (art. 7-1) of the Convention constitutes, in
itself, sufficient just satisfaction as to the alleged
non-pecuniary damage.
C. Costs and expenses
20. The applicant claimed £2,750 for costs and expenses
referable to the Article 50 (art. 50) phase of the proceedings.
21. The Government submitted that the Court should refuse the
claim for costs if it rejects the applicant's claim for damage.
22. Since the applicant's claims for compensation have
failed, the Court sees no reason why an award in respect of costs
and expenses should be made.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the finding of a violation of Article 7
para. 1 (art. 7-1) of the Convention constitutes, in
itself, sufficient just satisfaction as to the alleged
non-pecuniary damage;
2. Dismisses the remainder of the applicant's claim for just
satisfaction under Article 50 (art. 50) of the
Convention.
Done in English and in French, and notified in writing on
26 February 1996 pursuant to Rule 55 para. 2, second
sub-paragraph, of Rules of Court A.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar