II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

86. The applicant complained that he had been discriminated against as a convicted prisoner, relying on Article 14 of the Convention which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

87. Having regard to the conclusion above under Article 3 of Protocol No. 1, the Grand Chamber, like the Chamber, considers that no separate issue arises under Article 14 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

88. The applicant complained that the disenfranchisement prevented him from exercising his right to freedom of expression through voting, relying on Article 10 of the Convention, the relevant parts of which provide:

“1. Everyone has the right to freedom of expression. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

89. The Court considers that Article 3 of Protocol No. 1 is to be seen as the lexspecialis as regards the exercise of the right to vote and, like the Chamber, findsthat no separate issue arises under Article 10 of the Convention in the present case.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

90. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

91. The applicant claimed 5,000 pounds sterling (GBP) for suffering and distress caused by the violation.

92. The Government were of the view that any finding of a violation would in itself constitute just satisfaction for the applicant. In the alternative, they considered that, if the Court were to make an award, the amount should not be more than GBP 1,000.

93. The Chamber found as follows (see paragraph 60 of the Chamber judgment):

“The Court has considered below the applicant’s claims for his own costs in the proceedings. As regards non-pecuniary damage, the Court notes that it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment. In the circumstances, it considers that this may be regarded as providing the applicant with just satisfaction for the breach in this case.”

94. Like the Chamber, the Grand Chamber does not make any award under this head.

B. Costs and expenses

95. The applicant claimed the costs incurred in the High Court and Court of Appeal in seeking redress in the domestic system in relation to the breach of his rights, namely his solicitors’ and counsel’s fees and expenses in the High Court of GBP 26,115.82 and in the Court of Appeal of GBP 13,203.64. For costs in Strasbourg, the applicant had claimed before the Chamber GBP 18,212.50 for solicitors’ and counsel’s fees and expenses. For proceedings before the Grand Chamber since the Chamber judgment, the applicant claimed additional reimbursement of GBP 20,503.75 for his solicitors’ and counsel’s fees and expenses broken downas GBP 7,800 for twenty-six hours of work (at GBP 300 an hour), GBP 1,650 for fifty-five letters and phone calls (at GBP 30 each), GBP 1,653.75 for value-added tax (VAT), GBP8,000 for counsel’s fees during two days in connection with the hearing and twenty hours of work plus GBP 1,400 for value-added tax. He also claimed GBP 300 as out of pocket expenses(the cost of telephone calls etc.).

96. The Government submitted that, as the applicant had received legal aid during the domestic proceedings, he did not actually incur any costs. To the extent that the applicant appeared to be claiming that further sums should be awarded that were not covered by legal aid, they submitted that any such further costs should not be regarded as necessarily incurred or reasonable as to quantum and that they should be disallowed. As regards the additional costs claimed for the Grand Chamber proceedings in Strasbourg,the Government submitted that the hourly rate (GBP 300) charged by the solicitor was excessive, as was the flat rate for correspondence. No more than GBP 4,000 should be awarded in respect of solicitors’ fees. As regards counsel’s fees, the hourly rate was also excessive, as was the number of hours charged for the preparation of a very short pleading. No more than GBP 3,000 should be recoverable.

97. The Chamber found as follows (see paragraphs 63 and 64 of the Chamber judgment):

“The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96,§ 79, ECHR 1999-II, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX). This may include domestic legal costs actually and necessarily incurred to prevent or redress the breach of the Convention (see, for example, I.J.L. and Others v. the United Kingdom (just satisfaction), nos. 29522/95, 30056/96 and 30574/96, §18, 25 September 2001). Since however in the present case the costs of the applicant’s legal representation in his application to the High Court and Court of Appeal contesting his disenfranchisement were paid by the legal aid authorities, it cannot be said that he incurred those expenses and he has not shown that he was required, or remains liable, to pay his representatives any further sums in that regard. This application before the Court cannot be used as a retrospective opportunity to charge fees above the rates allowed by domestic legal aid scales.

As regards the costs claimed for the proceedings in Strasbourg, the Court notes the Government’s objections and finds that the claims may be regarded as unduly high, in particular as regards the claim for three days for a hearing which lasted one morning and the lack of itemisation of work done by the solicitor. While some complaints were declared inadmissible, the applicant’s essential concern and the bulk of the argument centred on the bar on his right to vote, on which point he was successful under Article 3 of Protocol No. 1. No deduction has therefore been made on that account. Taking into account the amount of legal aid paid by the Council of Europe and in light of the circumstances of the case, the Court awards 12,000 euros (EUR) inclusive of VAT for legal costs and expenses. In respect of the applicant’s own claim for expenses in pursuing his application, the Court notes the lack of any itemisation but accepts that some costs have been incurred by him. It awards to the applicant himself EUR 144.”

98. The Court maintains the Chamber’s finding that no award for costs in domestic proceedings is appropriate. Although significant work was necessarily involved in preparation for and attendance at the Grand Chamber hearing, it finds the amount claimed for the period after the Chamber judgment excessive and unreasonable as to quantum. Taking into account the amount paid by way of legal aid by the Council of Europe, it increases the award for legal costs and expenses to a total of 23,000 euros (EUR), inclusive of VAT. For the applicant’s own out of pocket expenses, which are largely unitemised, it awards EUR 200.

C. Default interest

99. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Holdsby twelve votes to five that there has been a violation of Article 3 of Protocol No. 1;

2. Holds unanimously that no separate issue arises under Article 14 of the Convention;

3. Holds unanimously that no separate issue arises under Article 10 of the Convention;

4. Holds unanimouslythat the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

5. Holdsby twelve votes to five

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into pounds sterling at the rate applicable at the date of settlement:

(i) EUR 23,000 (twenty three thousand euros) in respect of costs and expenses incurred by the applicant’s legal representatives in the Strasbourg proceedings;

(ii) EUR 200(two hundred euros) in respect of his own costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 6 October 2005.

LuziusWildhaber
President
ErikFribergh
Deputy Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the followingseparateopinions are annexed to this judgment:

(a) concurring opinion of Mr Caflisch;

(b) joint concurring opinion of Mrs Tulkens and Mr Zagrebelsky;

(c) joint dissenting opinion of Mr Wildhaber, Mr Costa, Mr Lorenzen, Mr Kovler and Mr Jebens;

(d) dissenting opinion of Mr Costa.

L.W.

E.F.

Date: 2015-01-29; view: 775