European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 5519/08
by Kousai ALMASRI
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 19 January 2010 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 7 December 2007,

Having regard to the schedule of costs submitted by the applicant and the comments in reply submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kousai Almasri, is a Syrian national who was born in 1986 and lives in London. He was represented before the Court by OJN Solicitors, a firm of solicitors practising in London.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was made the subject of a deportation order as a result of his conviction for assault on 29 September 2004. His deportation was set for 26 July 2008 and the applicant applied to the Court for interim measures under Rule 39 to stop his flight. Rule 39 was refused on 18 July 2008 as the primary basis of the applicant’s complaints fell outside the scope of Rule 39; although he also made complaints under Article 3, these were not substantiated. However, urgent notification of the application was given to the Government under Rule 40, on the grounds that the application raised an arguable issue under Article 8.

The applicant’s complaints under Articles 6, 8 and 14 were communicated to the Government for observations on 17 February 2009. The Government were granted an extension for the submission of observations until 1 May 2009.

On 1 May 2009, the Government notified the Court that, in the light of all of the facts of the case, a decision had been taken to revoke the applicant’s deportation order and to restore his leave to remain. The Government therefore invited the applicant to agree to his application before the Court being struck out of the list. On 6 July 2009, the applicant’s representatives stated that they had yet to receive official confirmation of the applicant’s indefinite leave to remain and that they wished the Government to pay the applicant’s legal costs. The Government responded on 17 July 2009, stating that while there had been some administrative delays, the applicant’s passport had now been endorsed with evidence of his indefinite leave to remain and returned to him, and that the Government were prepared to pay reasonable costs that had actually and necessarily been incurred by the applicant in respect of his application to the Court, upon receipt of a schedule of costs.

The Court received the applicant’s schedule of costs on 19 October 2009, and the Government’s comments thereon on 25 November 2009.

COMPLAINTS

The applicant complained under Articles 3, 5, 6, 8 and 14 of the Convention about his scheduled deportation to Syria.

THE LAW

I. ARTICLE 37 § 1 (b) OF THE CONVENTION

The Court recalls that Article 37 § 1 of the Convention provides as relevant:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; ...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court observes that in his representatives’ letter of 6 July 2009, the applicant indicated that his only objections to his application being struck out of the list were that i) he had not yet received official confirmation of the reinstatement of his indefinite leave to remain; and ii) he sought reimbursement of his legal costs from the Government. The Court notes that, since the applicant’s passport has now been endorsed and returned to him, as confirmed in the Government’s letter of 17 July 2009, his first objection is no longer applicable. The Court further notes that the matter of the applicant’s costs is dealt with below.

The Court therefore concludes that applicant no longer intends to pursue his application. The requirements of Article 37 (1) (a) being met, it is therefore appropriate that the application should be struck out of the Court’s list of cases. Moreover, the Court considers that respect for human rights as defined in the Convention does not require that the Court continues its examination of the application, in terms of Article 37 § in fine.

II. APPLICATION OF RULE 43 § 4 OF THE RULES OF COURT

Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

The applicant claimed a total of GBP 9,311.55 in legal costs and expenses, which is approximately EUR 10,244.68. This comprised the costs of the applicant’s solicitor incurred in connection with proceedings before the Court, and with seeking to have the deportation order revoked by the domestic authorities. The hourly rate was GBP 210 before VAT.

The Government considered the hourly rate of GBP 210 charged by the applicant’s solicitors to be excessive, particularly given that all work on the case was carried out by the same solicitor. The Government considered that routine tasks could have been carried out by a more junior assistant. They submitted that a more reasonable hourly rate would have been GBP 120 per hour. They considered that a total award of GBP 5,000 (inclusive of any VAT payable) would be a reasonable sum to award.

The Court recalls that in order for costs and expenses to be recoverable under Article 41 of the Convention, it must be established that they were actually and necessarily incurred, and reasonable as to quantum (Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 VIII; D.G. v. Ireland, no. 39474/98, § 128, ECHR 2002 III). In addition, it is in principle open to applicants to seek costs and expenses incurred before the domestic courts but the Court will only make such an award where these proceedings were concerned with preventing or seeking redress for the alleged violation of the Convention (King v. the United Kingdom, no. 13881/02, § 52, 16 November 2004; Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 58, ECHR 2007 ...; I.J.L., G.M.R. and A.K.P. v. the United Kingdom (Article 41), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001). The Court finds this requirement was met in the present case since the proceedings before the domestic authorities were directly concerned with revoking the applicant’s deportation order to Syria.

For the Strasbourg costs, the Court notes the lack of complexity of proceedings and in particular the fact that it has decided to strike the case out of its list at a relatively early stage in the proceedings. However, it also notes that the total number of hours work claimed by the applicant’s representatives reflects this lack of complexity and the Court accepts that these were actually and necessarily incurred. It does, however, also accept the Government’s submission that the hourly rate for the applicant’s solicitor was excessive, and considers that a more appropriate hourly rate would be GBP 160. It therefore considers that the applicant’s costs should be met in full, substituting the hourly rate of GBP 160 for the applicant’s solicitor’s claimed rate of GBP 210.

The Court thus awards him GBP 7,157.60, inclusive of VAT, which is approximately EUR 7,910.18.

For these reasons, the Court unanimously

1. Decides to strike the application out of its list of cases;

2. Further decides

(a)  that the respondent State is to pay the applicant EUR 7,910.18 (seven thousand, nine hundred and ten euros and eighteen cents) plus any tax that may be chargeable, in respect of costs, to be converted into pounds sterling at the rate applicable at the date of settlement;

(b)  that if settlement has not been made upon the expiry of three months from the date of notification of the decision, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Lawrence Early Lech Garlicki
Registrar President