Is a report in today’s edition of the United Kingdom Times newspaper proof that some facts are just too annoying to be allowed to get in the way of a good story?
The journal claims that “tens of thousands of prisoners are in line for compensation because they have been denied their human right to vote.”
It adds that: “Figures published yesterday show that almost 2,300 have lodged claims with the European Court of Human Rights (ECHR). The applications follow a controversial ruling that Britain breached the human rights of the killer John Hirst with its blanket ban on prisoners voting.
“Ministers are likely to fight any claims. They are resisting bringing in changes to the law to comply with the ruling by the Strasbourg court.”
Yet, it is understood that the court has, to date, not awarded any damages to prisoners from the United Kingdom (UK), nor for that matter, to those from Russia and Turkey complaining about voting bans.
Indeed, the court declared in its 2010 judgment on prisoner voting in the case Greens & MT v. the UK that “no financial compensation is payable: the relief available from this court is of a declaratory nature. The only relevant remedy is change to the law.”
It was also explicit that “in future follow-up cases … [it] would not … be likely to award costs”
In the statement dated 23 November 2010, published to announce the court’s decision on Greens and M.T. v. the United Kingdom, it states: “The Court found that ‘it was a cause for regret and concern’ that, in the five years which had passed since the Hirst judgment, no amending measures had been brought forward by the Government.
“However, the Court did not consider that aggravated or punitive damages were appropriate in the applicants’ cases.
“The Court noted the recent decision of the Committee of Ministers, which made reference to the fact that the new UK Government was ‘actively considering the best way of implementing the judgment’ in Hirst.
“While the Court accepted that the continuing prohibition on voting might be frustrating for prisoners who could reasonably expect potentially to benefit from a change in the law, it nonetheless concluded that the finding of a violation, taken together with the Court’s directions under Article 46, constituted sufficient just satisfaction in the applicants’ cases.
“The Court held that the United Kingdom was to pay the applicants 5,000 euros (EUR) in respect of costs and expenses. The award was limited to the proceedings before the European Court of Human Rights and reflected the fact that extensive written submissions were lodged.
“In any future cases the Court noted that it would be likely to consider that legal costs were not reasonably and necessarily incurred and, therefore, make no award for costs under Article 41.”
Nevertheless, the Times article persists with its view that “it has been suggested that prisoners could win up to £1,000 in damages but the final bill could be much higher as the court is likely to award them costs.”
Fact Check: The key text – Greens and M.T. v. the UK 23.11.10
A. Damage
94. The applicants claimed an unspecified sum in respect of non-pecuniary damage. They noted that although the Court had awarded no damages in the case of Hirst, it had subsequently awarded the sum of 1,500 euros (EUR) in seven cases against Italy involving a ban on voting in respect of undischarged bankrupts (citing, inter alia, Bova, cited above; Pantuso v. Italy, no. 21120/02, 24 May 2006; La Frazia v. Italy, no. 3653/02, 29 June 2006; and Pio and Ermelinda Taiani v. Italy, no. 3641/02, 20 July 2006). Emphasising the continuing failure of the Government to amend the law on prisoners’ voting rights in order to comply with the Court’s judgment in Hirst, the applicants argued that an award of damages would be appropriate.
95. The Government considered that it was not appropriate to award damages in the present cases. They pointed out that the Grand Chamber in Hirst had awarded no compensation for non-pecuniary damage, an approach which had been followed in a subsequent case in which a category of persons had been excluded from the right to vote (see Aziz v. Cyprus, no. 69949/01, ECHR 2004‑V). The Italian cases could be distinguished as the restrictions on bankrupts in those cases were far-reaching and gave rise to serious breaches of the Convention.
In particular, and unlike in Hirst, the Court held in the Italian cases that the relevant provisions of Italian law did not pursue a legitimate aim. The Government concluded that there was no material difference between the present cases and Hirst and invited the Court to conclude that the forthcoming amendment of section 3 of the 1983 Act constituted sufficient just satisfaction. In particular, the delay in introducing amended legislation was a matter for the Committee of Ministers and was, in the Government’s view, irrelevant to the applicants’ just satisfaction claims.
96. The Court notes that in Hirst, the Grand Chamber endorsed the conclusion of the Chamber on the question of non-pecuniary damage that:
“… 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.”
97. It is a cause for regret and concern that in the five years which have passed since the judgment of the Grand Chamber in Hirst, no amending measures have been brought forward by the Government, a matter to which the Court returns below (see paragraphs 103-122).
However, as regards non-pecuniary damage, the Court recalls that it has in the past examined claims by applicants for punitive damages to reflect the particular character of the violations suffered by them and to serve as a deterrent in respect of violations of a similar nature by the respondent State, and for aggravated damages to reflect the fact that they were victims of an administrative practice. It has declined to make any such awards (see Akdivar and Others v. Turkey (Article 50), 1 April 1998, §§ 35-38, Reports 1998‑II; Selçuk and Asker v. Turkey, 24 April 1998, §§ 116-119, Reports 1998‑II; Menteş and Others v. Turkey (Article 50), 24 July 1998, §§ 18-21, Reports 1998‑IV; Hood v. the United Kingdom [GC], no. 27267/95, §§ 88-89, ECHR 1999‑I; and B.B. v. the United Kingdom, no. 53760/00, § 36, 10 February 2004). Similarly, the Court does not consider that aggravated or punitive damages are appropriate in the present case.
98. The Court notes the recent decision of the Committee of Ministers, which made reference to the fact that “the new government is actively considering the best way of implementing the judgment” in Hirst (see paragraph 47 above).
While the Court accepts that the continuing prohibition on voting may give rise to some feelings of frustration in respect of those prisoners who can reasonably expect potentially to benefit from any change in the law, it nonetheless concludes that the finding of a violation, when viewed in tandem with the Court’s direction under Article 46 below (see paragraph 115), constitutes sufficient just satisfaction in the present cases.
B. Costs and expenses
99. The applicants also claimed costs and expenses incurred in the proceedings before the Court. Mr Greens claimed the total sum of 6,991.26 pounds sterling (GBP) inclusive of VAT, which was comprised of GBP 2,408.76 in respect of solicitors’ fees and GBP 4,582.50 in respect of counsel’s fees (representing one half of the fees charged by counsel in respect of work done for both applicants). M.T. claimed the sum of GBP 1,802.91 in respect of solicitors’ fees and GBP 4,582.50 in respect of counsel’s fees, amounting to a total of GBP 6,385.41 inclusive of VAT. Both applicants provided a detailed break down of the fees claimed.
100. The Government argued that the costs claimed by the applicants were excessive and unreasonable, pointing out that the cases were follow-ups to Hirst. More specifically, the Government considered the rates charged to be unduly high, particularly for a solicitors’ firm based outside central London. They contended that no more than GBP 2,000 should be allowed for solicitors’ fees in total and that the overall sum claimed in respect of counsel’s fees – over GBP 9,000 for 19 hours worked – should be reduced to GBP 3,000 in total.
101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.
In the present case, the Court agrees that the sums claimed were excessive. In particular, the Court notes that the Government accepted that, if the applications were admissible, there had been a violation of Article 3 of Protocol No. 1. The Court further recalls that it has found no violation of Article 13 in the present cases. In the circumstances, regard being had to the documents in its possession, the Court considers it reasonable to award to the applicants a total sum of EUR 5,000 for the costs of the proceedings before the Court in these two applications.
120. In light of the considerations set out above (see paragraphs 116-118) and the six-month deadline fixed by the Court in the present judgment for the bringing forward of legislative proposals, the Court is of the view that the continued examination of every application asserting a violation of Article 3 of Protocol No. 1 as a result of the current blanket ban on voting applicable to serving prisoners is no longer justified.
Such applications can be distinguished from cases where some form of individual measure might be necessary in order for any future judgment to be implemented. Examples of the latter type of case include applications complaining of non-enforcement of domestic judgments or length of domestic proceedings, where financial recompense is usually required.
The Court emphasises that it has clearly established, both in the present judgment and in its judgment in Hirst, that the prevailing situation has given rise and continues to give rise to a violation of Article 3 of Protocol No. 1 in respect of every prisoner who is unable to vote in an election to the legislature and whose ineligibility arises solely by virtue of his status of prisoner.
It has further declined to award non-pecuniary damages in respect of this violation. The award made in respect of costs in the present cases was limited to the proceedings before this Court and reflected the fact that extensive written submissions were lodged. In future follow-up cases, in light of the above considerations, the Court would be likely to consider that legal costs were not reasonably and necessarily incurred and would not, therefore, be likely to award costs under Article 41.
As a consequence of the Court’s approach to just satisfaction outlined above, an amendment to the electoral law to achieve compliance with the Court’s judgment in Hirst will also result in compliance with the judgment in the present cases and with any future judgment handed down in any of the comparable cases currently pending before the Court.
In these circumstances, the Court considers that it has discharged its obligation under Article 19 of the Convention, “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto” and concludes that nothing is to be gained, nor will justice be best served, by the repetition of its findings in a lengthy series of comparable cases, at a significant burden on its own resources and with the resulting impact on its considerable caseload. In particular, such an exercise would not contribute usefully or in any meaningful way to the strengthening of human rights protection under the Convention.
121. The Court accordingly considers it appropriate to discontinue its examination of applications registered prior to the date of delivery of this judgment and raising complaints similar to those in the case of Hirst pending compliance by the respondent State with the terms of point 6(a) of the operative part of this judgment. It would propose, in the event of such compliance, to strike out such complaints pursuant to Article 37 § 1 (c), without prejudice to the Court’s power to decide, pursuant to Article 37 § 2, to restore such applications to the list should the respondent State fail to enact an amendment to the electoral law to achieve compliance with the Court’s judgment in Hirst in accordance with point 6(b) of the operative part of this judgment.
122. The Court similarly considers it appropriate to suspend the treatment of any applications not yet registered at the date of delivery of this judgment, as well as future applications, raising such complaints, without prejudice to any decision to recommence the treatment of these cases in the event of any non-compliance with the terms of point 6(a) of the operative part of this judgment or in such other event as may justify such course.