by Martin WILSON
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 10 March 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 17 September 2003,
Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),
Having regard to the unsuccessful friendly-settlement negotiations conducted pursuant to Article 38 § 1 (b) of the Convention,
Having regard to the terms of the declaration submitted by the respondent Government on 9 May 2008 requesting the Court to strike the application out of the list of cases,
Having regard to the applicant's response to the Government's unilateral declaration,
Having deliberated, decides as follows:
The applicant, Mr Martin Wilson, is a British national who was born in 1957 and lives in Glasgow. He is represented before the Court by Mr P. Brown, a solicitor practicing in Glasgow. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, formerly a lecturer, claimed that he suffered a back injury resulting from continual stress at work from carrying. He gave up working in September 1995.
In June 1996, the applicant put forward his first claim for disability benefit. This was refused by the Department of Social Security (“the DSS”) in August 1996. His appeal was dismissed by the Appeal Tribunal on 4 December 1996 as he did not suffer from a “prescribed disease”. On 3 March 1998, the Social Security Commissioner dismissed his appeals. Leave to appeal to the Court of Session was refused on 7 April 1998.
Meanwhile, on 30 April 1997, the applicant re-applied for industrial injuries disablement benefit and reduced earnings allowance. The DSS refused his claim on 28 July 1997. The applicant sought leave to appeal. Despite seeking an explanation from the DSS when no notification was received about this application, no explanation was given.
On 11 November 2000, the applicant's application came before the Appeal Tribunal. The Chairman noted that the papers presented by the DSS were incomplete. The representative of the Secretary of State was also not present. The appeal hearing was adjourned.
On 5 July 2001, the appeal reconvened. The representative of the DSS presented the wrong papers and then admitted that the applicant's application had been lost or destroyed. The representative of the Secretary of State was again absent. The Appeal Tribunal accepted that the applicant had suffered from a series of accidents related to lifting and referred the case back to the DSS for assessment.
Following a medical examination on 21 February 2002, the applicant was informed on 12 March 2002 that the DSS had refused his claims, allegedly on the basis of the opinion of the examining doctor who was not an orthopaedic specialist and who chose to ignore the applicant's expert opinions and X-rays. The applicant appealed.
An appeal hearing convened for 14 May 2002 was postponed without explanation. A second hearing scheduled for 6 December 2002 was also adjourned, allegedly due to the absence of the representative of the Secretary of State. The note of the hearing however refers to six weeks being given to the applicant to comment on particular points.
On 25 March 2003, the Appeal Tribunal heard the appeal. It found in the applicant's favour and made lifetime awards of both industrial injuries benefit and reduced earnings allowance, backdated to 30 September 1995, when he gave up work due to his back injury.
The applicant complained under Articles 6 § 1 and 13 of the Convention that the proceedings relating to his claim for industrial injuries disablement benefit and reduced earnings allowance had taken an unreasonable length of time. He relied on Article 6 § 1 which, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by ... [a] tribunal...”
He also relied on Articles 13 of the Convention which, in so far as relevant, provides as follows:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
On 25 March 2004 the respondent Government were given notice of the application and were requested to submit their written observations on the admissibility and merits of the case in respect of the applicant's complaint under Article 6 § 1 of the Convention.
By a letter dated 9 May 2008 the Government informed the Court that they proposed to make a unilateral declaration in respect of the Article 6 complaint and they requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of the United Kingdom regret that there was an unreasonable delay in the way in which proceedings relating to the applicant's claim for industrial injuries disablement benefit and reduced earnings allowance proceeded in the domestic courts. The Government therefore accept that there was a violation of the reasonable time requirement under Article 6 of the Convention in relation to those proceedings.
The applicant's claim to Industrial Injuries Benefits was an exceptionally complex case (involving a number of separate claims and decisions and appeals against those decisions) and the Department of Work and Pensions accept that the time taken to finalise it was excessive. Since the applicant's benefit was awarded, a National Service Agreement has been drawn up between the Department of Work and Pensions and the Tribunals Service. Both partners have declared a commitment to, and are actively working to improve working practices and moving towards, a shared, end-to-end clearance target as the most meaningful measure of performance from the perspective of the individual claimant. Changes have also been made to the publicly available Code of Appeals Procedure for the Department of Work and Pensions – this includes a recording process which should help to ensure that delays of this kind do not happen again.
In these circumstances, and having regard to the particular facts of the applicant's case, the Government declare that it hereby offers to pay ex gratia to the applicant the sum of EUR 5,000, which is to cover costs and expenses, and which will be converted into Pounds Sterling at the rate applicable on the date of payment and free of any taxes that may be applicable and will be payable within three months of the date of the striking out decision of the Court pursuant to Article 37 of the European Convention of Human Rights. In the event of a failure to pay this sum within the said three month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute a final resolution of the case.”
On 30 May 2008 the Court informed the applicant of the Government's proposed unilateral declaration. In a letter dated 16 June 2008 the applicant expressed the view that delays of the kind he had been made to endure continued to occur and that the Government's admission that there had been a violation of the reasonable time requirement should be recorded in the Court's case-law to be relied on by subsequent applicants. Otherwise the declaration and the amount offered remained unacceptable.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government outside the framework of the friendly-settlement negotiations.
The Court also recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part of an application out of its list of cases, even if an applicant wishes the examination of the case to be continued, where the circumstances lead to one of the conclusions under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike out of its list if:
“for any other reason established by the Court, it is no longer justifiable to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and Protocols thereto so requires.”
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against the United Kingdom, its practice concerning complaints about the violation of one's right to a hearing within a reasonable time and about the lack of an effective remedy capable of providing redress for a breach of this right (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-....; Eastaway v. the United Kingdom, no. 74976/01, §§ 57-60, 20 July 2004; Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, §§ 26-33, 29 July 2003); Blake v. the United Kingdom, no. 68890/01, §§ 47-50, 26 September 2006; and King v. the United Kingdom, no. 13881/02, § 43-46, 16 November 2004).
In light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application in so far as it concerns the applicant's complaints under Article 6 § 1 of the Convention (Article 37 § 1 in fine).
Moreover, having regard to the circumstances of the applicant's case, it considers that the concessions, compensation and undertakings set out in the Government's declaration can be considered sufficient redress for the applicant's accessory complaint under Article 13.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's declaration in respect of the complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Lawrence Early Lech Garlicki