In the case of Campbell and Cosans,
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 the Rules of Court (*), as a Chamber composed of the
following judges:
_______________
(*) Note by the registry: In the version of the Rules applicable
when proceedings were instituted. A revised version of the Rules of
Court entered into force on 1 January 1983, but only in respect of
cases referred to the Court after that date.
_______________
Mr. R. Ryssdal, President,
Mr. Thór Vilhjálmsson,
Mr. L. Liesch,
Mr. F. Gölcüklü,
Mr. B. Walsh,
Sir Vincent Evans,
Mr. R. Macdonald,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 January and 21 February 1983,
Delivers the following judgment, which was adopted on the
last-mentioned date, on the application in the present case of
Article 50 (art. 50) of the Convention:
PROCEDURE AND FACTS
1. The present case was referred to the Court in October 1980 by
both the European Commission of Human Rights ("the Commission") and
the Government of the United Kingdom of Great Britain and Northern
Ireland ("the Government"). The case originated in two applications
(nos. 7511/76 and 7743/76) against the United Kingdom lodged with the
Commission in 1976 by Mrs. Grace Campbell and by Mrs. Jane Cosans on
behalf of herself and her son Jeffrey, the latter also being
hereinafter referred to as an "applicant".
2. By judgment of 25 February 1982, the Court held that the
existence of corporal punishment as a disciplinary measure in the
schools attended by the applicants' sons did not constitute, as
regards those children, a violation of Article 3 (art. 3) of
the Convention but did constitute, as regards their parents, a breach
of the second sentence of Article 2 of Protocol No. 1 (P1-2) . It
also held that, as regards Jeffrey Cosans, his suspension from school
following his refusal to accept such punishment had given rise to a
breach of the first sentence of the last-mentioned Article
(P1-2) (Series A no. 48, points 1-3 of the operative provisions and
paragraphs 24-41 of the reasons, pp. 12-20).
The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the present case.
Accordingly, as regards the facts, the Court will confine itself here
to giving the pertinent details; for further particulars, reference
should be made to paragraphs 8-19 of the above-mentioned judgment
(ibid., pp. 6-10).
3. At the hearings on 25 September 1981, counsel for Mrs. Cosans had
stated that, should the Court find a violation, his client would seek
just satisfaction under Article 50 (art. 50) in respect of moral
damage and legal costs. The Government had not taken a stand on the
matter, nor had counsel for Mrs. Campbell.
In its judgment of 25 February 1982, the Court reserved the whole of
this question. The Commission was invited to submit to the Court,
within the coming two months, written observations thereon and, in
particular, to notify the Court of any friendly settlement at which
the Government and the applicants might have arrived (point 4 of the
operative provisions and paragraph 42 of the reasons, ibid., pp. 19
and 20).
4. Following several extensions of the aforesaid time-limit by the
President of the Chamber and in accordance with his Orders and
directions, the registry received:
(a) on 26 August 1982, from the Secretary to the Commission:
- details of the applicants' claims, which had been submitted to him
on 26 March 1982 (Mrs. Campbell) and 20 and 26 April 1982 (Mrs. Cosans
and Jeffrey Cosans);
- the Government's comments on those claims, as set out in a letter to
him dated 24 August 1982;
b) on 7 and 18 October 1982, observations of the Commission's
Delegates on the application of Article 50 (art. 50) as regards
Mrs. Cosans and her son and as regards Mrs. Campbell, respectively;
(c) on 10 December 1982, further observations of the Government;
(d) on 27 January 1983, further observations of the Delegates and
of Mrs. Cosans and her son on the claims of these applicants.
These documents revealed that no friendly settlement had been arrived
at. For ease of reference, further particulars of the applicants'
claims and of the Government's and the Commission's position relative
thereto are set out below in the section "As to the law".
5. Mr. F. Gölcüklü and Mr. B. Walsh, substitute judges, took the
place of Mr. J. Cremona and Mr. L.-E. Pettiti, who were prevented from
taking part in the further consideration of the case
(Rules 22 § 1 and 24 § 1 of the Rules of Court).
6. Having consulted, through the Registrar, the Agent of the
Government and the Delegates of the Commission, the Court decided on
21 February 1983 that there was no call to hold hearings.
AS TO THE LAW
I. Introduction
7. Article 50 (art. 50) of the Convention, the applicability of
which was not contested in the present case, reads as follows:
"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 present 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."
8. Mrs. Campbell, Mrs. Cosans and her son Jeffrey sought just
satisfaction under a number of different heads. Their various claims
will be considered in turn.
II. Mrs. Campbell
A. Pecuniary and non-pecuniary loss
9. Mrs. Campbell initially claimed the sum of £3,000 in respect of
(a) her personal expenses in making the application in so far as not
already covered by any payment which she had received from the
Commission and (b) "due compensation".
10. (a) This applicant received from the Commission legal aid
payments which covered her travel and subsistence expenses in
attending the hearings before the Convention institutions. In the
absence of any evidence establishing that she incurred other personal
expenses, the Court is unable to make any award in respect of this
item.
(b) As regards the claim for compensation, the Government contended
that the finding of a violation, contained in the Court's
above-mentioned judgment, together with the payment by the United
Kingdom of the applicant's reasonable expenses necessarily and
actually incurred, would provide "just satisfaction". The
Commission's Delegates, having regard to the circumstances of the
case, saw no basis for an award under this head.
The Court shares the view of the Delegates and therefore rejects this
claim.
11. On 2 October 1982, Mrs. Campbell submitted a supplementary but
unquantified claim "in respect of the cost of obtaining private
education for her children".
However, the applicant has furnished no supporting evidence as far as
this item is concerned. Furthermore, following a newspaper report to
the effect that her son Gordon was attending an independent school
which used corporal punishment, the Delegates asked her to provide the
name of the school involved; she declined to answer this request and
has not denied the truth of the newspaper report. In these
circumstances, the Court sees no justification for making any award in
respect of her supplementary claim.
B. Legal costs and expenses
12. Mrs. Campbell claimed in respect of legal costs and expenses
referable to the proceedings before the Convention institutions the
following sums, subject to deduction of the amounts received from the
Commission by way of legal aid:
(a) £700, for certain "expenses" of Mr. MacEwan, solicitor, who
represented her before the Commission and the Court;
(b) £1,700, for the fees and travel expenses of Mr. Thornberry,
barrister-at-law, who was instructed by Mr. MacEwan and also
represented her before the Commission and the Court;
(c) £8,456.60, in respect of the services of Mr. Baker, who attended
the hearing of 11 October 1978 before the Commission as her adviser.
The Government indicated that they were prepared to pay the reasonable
and necessary costs actually incurred by the applicant which were not
covered by the Commission's legal aid. However, they:
(a) requested for this purpose a breakdown of Mr. MacEwan's expenses,
which has not, in fact, been supplied by the applicant;
(b) declined to pay that part of Mr. Thornberry's expenses that was
attributable to travel between New York and London, submitting that
the extra cost of bringing him from America was not necessarily or
reasonably incurred;
(c) stated that they were "not ... prepared to make an offer in
respect of any of the costs which Mr. Baker has incurred", since he
had not acted in a capacity which would have entitled him, under the
Commission's rules on legal aid, to receive a fee.
13. To be entitled to an award of costs and expenses under
Article 50 (art. 50), the injured party must have incurred them in
order to seek, through the domestic legal order, prevention or
rectification of a violation, to have the same established by the
Commission and later by the Court or to obtain redress therefor (see,
inter alia, the Neumeister judgment of 7 May 1974, Series A no. 17,
pp. 2O-21, § 43). Furthermore, it has to be shown that the costs and
expenses were actually incurred, were necessarily incurred and were
also reasonable as to quantum (see, inter alia, the Le Compte, Van
Leuven and De Meyere judgment of 18 October 1982, Series A no. 54,
p. 8, § 17).
14. (a) Mrs. Campbell, who alone has the status of "injured party"
for the purposes of Article 50 (art. 50), has not established that
she paid or is liable to pay to Mr. MacEwan any sums, over and above
the amount received by way of legal aid, for which she might seek
reimbursement; it follows that, in this respect, she has borne no
expenses herself and has suffered no loss capable of being compensated
under Article 50 (art. 50) (see, inter alia, the Airey judgment of
6 February 1981, Series A no. 41, p. 9, § 13).
(b) The Court, like the Commission's Delegates, accepts the
Government's submission regarding Mr. Thornberry's travel expenses.
Whilst Mrs. Campbell was free to employ representatives of her own
choosing, she has not established that it was necessary to have
recourse to counsel who, at the relevant time, was in America. No sum
is therefore awarded in respect of his travel expenses, those
referable to his journeys within Europe in connection with the
Strasbourg proceedings having already been paid by the Council of
Europe.
There remains the amount claimed in respect of Mr. Thornberry's
professional fees, namely £1,000. It was not disputed that this
expense was actually incurred (cf. the above-mentioned Airey judgment,
loc. cit.) and that it was necessarily incurred and reasonable as to
quantum; the applicant should accordingly receive just satisfaction
therefor, subject to deduction of the amount received by her for this
item from the Commission by way of legal aid, namely £60.
(c) The Commission informed the Court that it made no payments to
Mr. Baker. The applicant did not contest the Government's submission
regarding the capacity in which he acted for her but stated that his
costs "should be re-submitted ... as a direct cost" to her. Assuming
that the expense in question was actually incurred, the Court does not
consider that it can be regarded as necessarily incurred, bearing in
mind that Mrs. Campbell also had the services of a barrister and a
solicitor (see, mutatis mutandis, the Young, James and Webster
judgment of 18 October 1982, Series A no. 55, p. 8, § 15). The
claim for this item is therefore rejected.
C. Claim for an undertaking
15. Mrs. Campbell also sought an undertaking from the Government that
her children would not be subjected to any form of corporal punishment
at schools within the United Kingdom's jurisdiction.
The Government, in addition to pointing out that Strathclyde Regional
Council had decided that with effect from August 1982 corporal
punishment would be abolished in the area for which it was
responsible, stressed that they were actively considering the
implications for the whole of the United Kingdom of the Court's
above-mentioned judgment of 25 February 1982.
16. The Court's judgments leave to the Contracting State concerned
the choice of the means to be utilised in its domestic legal system
for performance of its obligation under Article 53 (art. 53) (see
the Marckx judgment of 13 June 1979, Series A no. 31, p. 25,
§ 58). The Court is therefore not empowered to direct the United
Kingdom to give the undertaking sought (see also the Dudgeon judgment
of 24 February 1983, § 15 in fine).
III. Mrs. Cosans
A. Pecuniary and non-pecuniary loss
17. Mrs. Cosans claimed £5,000, for "moral damage".
18. The Commission's Delegates observed that this claim contained an
element of material damage, in that it referred to "constant medical
treatment", but they informed the Court that it had not been possible
to obtain from the applicant a medical report. They therefore
accepted the Government's objection that no evidence had been produced
to substantiate such damage.
In these circumstances, the Court finds no basis for an award in
respect of pecuniary loss under this head.
19. So far as the remainder of the claim was concerned, the
Government submitted that the finding of a violation contained in the
Court's above-mentioned judgment of 25 February 1982, together with
the payment by the United Kingdom of the applicant's reasonable
expenses necessarily and actually incurred, would provide "just
satisfaction". The Delegates took the view, on the other hand, that
Mrs. Cosans' mental suffering, caused by her son's suspension from
school, called for some satisfaction under Article 50 (art. 50).
20. Although the Court recognises, and the Government did not deny,
that Mrs. Cosans suffered some distress as a result of her son's
suspension, it considers that adequate just satisfaction therefor has
already been provided by the finding of a breach of her rights. The
Court accordingly accepts the Government's submission.
B. Legal costs and expenses
21. Mrs. Cosans claimed in respect of legal costs and expenses
referable to the proceedings before the Convention institutions the
following sums, subject to deduction of the amounts received from the
Commission by way of legal aid:
(a) £3,236.60 (inclusive of value added tax) - including £230 for
services rendered in connection with the Article 50 (art. 50) claim -
for the fees and disbursements of Messrs. Stirling, Eunson, Ferguson,
solicitors, who represented her before the Commission and the Court;
(b) £9,234.50 (inclusive of value added tax), for the fees of
Mr. MacLean, Q.C., who was instructed by Messrs. Stirling, Eunson,
Ferguson and also represented her before the Commission and the Court.
The Government indicated that they were prepared to pay the reasonable
and necessary costs actually incurred by the applicant which were not
covered by the Commission's legal aid. However, they described the
amount claimed in respect of Mr. MacLean as "excessive" and offered to
pay for this item £2,000 plus value added tax at 8% in respect of the
hearing before the Commission and £3,000 plus value added tax at 15%
in respect of the hearing before the Court, that is a total of £5,610.
22. The Court notes that, as regards the amount claimed in respect of
Messrs. Stirling, Eunson, Ferguson, there is no dispute that the
criteria referred to in paragraph 13 above are satisfied. The whole
of this item therefore falls to be retained for the purposes of
Article 50 (art. 50).
As for Mr. MacLean's fees, the sole issue to be determined is whether
they are "reasonable as to quantum". Having regard to the submissions
of the Government and the applicant, the Court considers that the
amount offered by the former is reasonable; the figure to be taken
into account for this item is therefore £5,610.
From the resulting total figure of £8,846.60 falls to be deducted the
sum of 2,300 FF which Mrs. Cosans has received from the Commission by
way of legal aid.
IV. Jeffrey Cosans
23. Jeffrey Cosans claimed £25,000, for "moral damage". He alleged
that his suspension from school had prevented him from taking certain
examinations and from continuing study and training at further
education establishments or night school, with the result that he was
denied the opportunity of acquiring a skill for the future. It was
further stated that since his suspension he had, except during a short
period, been unemployed and had had to rely for financial support on
his parents and on social security. He claimed that the suspension
had not only caused him considerable embarrassment at the time but,
being a matter of common knowledge, would have enduring adverse
effects on his employment opportunities and prospects.
The Government contested this claim, notably on the ground that there
was no evidence to suggest that Jeffrey's inability to find employment
arose from the fact that he did not complete his schooling. They also
questioned some of the factual assertions made by the applicant.
24. The relevant facts, as they appear from the documents before the
Court, are summarised below, together with an indication of the
matters on which there was disagreement.
(a) Jeffrey did not take certain "O" level examinations which would
normally have been taken by a pupil of his age before leaving school.
The Government maintained that, at the time of his suspension in
September 1976, he was not scheduled to do so, whereas he contended
that he was, albeit in three subjects only.
(b) Subsequently, Jeffrey did not attend a further education
establishment or night school. His parents alleged that this was
because they had been told by an official of the local education
authority that the suspension from school applied equally to such
institutions; the Government, on the other hand, maintained that he
could have applied for a place at either type of establishment and
that his suspension would not have affected his acceptance for a
course. The Government also suggested that he should make appropriate
approaches to the Training Opportunities Scheme to seek enrolment on a
training course of his choice which would be provided free of charge
by the Government; he did not follow up this suggestion.
(c) Jeffrey registered with the local employment exchange on
11 June 1977. According to the Government, he was referred, during
the following nine months, to eight potential employers for interview,
attended on six occasions and was each time rejected without any
information about his school record or suspension being given or
requested; the applicant, however, stated that he received only two
referrals, both of which proved fruitless as the job had already been
filled, and claimed that his suspension was recorded in the material
made available to the employment exchange.
(d) Jeffrey started a job on 13 March 1978, but left it - according
to the Government, of his own accord - on 31 March. He attributed his
leaving to the fact that he found himself working with persons of
undesirable character and pointed out that the job was, in any event,
scheduled to last for only six weeks.
(e) From May 1978 to May 1980, Jeffrey was not registered with the
employment exchange. He said that during this period he firstly
assisted his father, who was self-employed, and later attempted to
work on his own account but was unsuccessful financially.
(f) Thereafter and until July 1982, Jeffrey was unemployed and
registered, except from 19 May to 14 June 1980 when he held a job
which he left - according to him - as a result of certain unacceptable
conduct on the part of his employer.
(g) The applicant stated that he had been without work since
July 1982, except for a period of three weeks when he was
self-employed.
(h) The press publicity given to Jeffrey's suspension arose, at
least in part, from an article in a local newspaper. The article
originated in information supplied, according to the Government, by
Mrs. Cosans or, according to the applicant, by her sister-in-law.
25. The Commission's Delegates recognised that the fact, asserted by
the Government, that in 1976 Jeffrey was not scheduled to take the
above-mentioned examinations was relevant as regards the level of any
future employment. They also regretted that he had not reacted to the
suggestion by the Government that he should seek enrolment on a
training course which they would provide free of charge. However, the
Delegates considered, both in their initial and in their final
observations, that Jeffrey's suspension negatively affected his career
"to a measurable degree"; they saw his claim as comprising elements of
material and moral damage, for both of which he was entitled to
compensation in an amount to be determined by the Court.
26. The Court, in considering this claim, has not overlooked the fact
that the incident which led to Jeffrey's suspension was the breach by
him of the school's disciplinary rules. Nevertheless, his suspension
from school was both out of proportion to the disciplinary offence
committed and, as the Court found in its judgment of 25 February 1982,
in violation of Article 2 of Protocol No. 1 (P1-2) to the Convention.
In the opinion of the Court, the applicant must be regarded as having
suffered some non-pecuniary loss. In addition to initial mental
anxiety, he must have felt himself to be at a disadvantage as compared
with others in his age-group. Furthermore, his failure to complete
his schooling perforce deprived him of some opportunity to develop his
intellectual potential.
The extent to which Jeffrey suffered material damage is even more
problematical. It is true that, in the normal course of events, an
individual who has not had the full benefit of educational
opportunities will be likely to encounter greater difficulties in his
future career than one who has. On the other hand, the evidence
suggests that, even had the suspension not occurred, Jeffrey's
schooling would probably have led to no more than a limited
qualification. Moreover, the entire responsibility for his situation
cannot be attributed to the respondent State: Jeffrey does not appear
to have pursued to the full the possibility of undertaking further
study and training, and he did not react to the suggestion made by the
Government in this connection (see paragraph 24, sub-paragraph (b),
above). Again, whilst he did make some attempts to earn a living on a
self-employed basis, he remained for a considerable period
unregistered with the local employment exchange. Finally, it has to
be recognised that in the current economic situation even many of
those who have completed their education and training experience
problems in finding employment. The Court therefore concludes that,
whilst the suspension may well have contributed to the material
difficulties which Jeffrey encountered, it cannot be regarded as the
principal cause thereof.
One further factor to be taken into account is his entitlement, when
unemployed, to social security benefits.
None of the above factors lends itself to a process of calculation.
Taking them together on an equitable basis, as is required by
Article 50 (art. 50), the Court considers that the applicant should be
afforded satisfaction assessed at £3,000.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares that Mrs. Campbell's claim for just satisfaction is
inadmissible in so far as it seeks an undertaking from the United
Kingdom Government;
2. Holds that the United Kingdom is to pay
(a) to Mrs. Campbell, in respect of legal costs and expenses
referable to the proceedings before the Commission and the Court, the
sum of nine hundred and forty pounds sterling (£940);
(b) to Mrs. Cosans, in respect of legal costs and expenses as
aforesaid, the sum of eight thousand eight hundred and forty-six
pounds sterling and sixty pence (£8,846.60) less two thousand three
hundred French francs (2,300 FF) to be converted into pounds sterling
at the rate applicable on the date of delivery of the present
judgment;
(c) to Jeffrey Cosans, in respect of pecuniary and non- pecuniary
loss, the sum of three thousand pounds sterling (£3,000);
3. Rejects the remainder of the applicants' claims.
Done in English and in French, the English text being authentic, at
the Human Rights Building, Strasbourg, this twenty-second day of
March, one thousand nine hundred and eighty-three.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
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