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You are here: BAILII >> Databases >> European Court of Human Rights >> WELCH v. THE UNITED KINGDOM (ARTICLE 50) - 17440/90 [1996] ECHR 12 (26 February 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/12.html Cite as: [1996] ECHR 12

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In the case of Welch v. the United Kingdom (1),

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 Rules of Court A (2),

as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr R. Macdonald,

Mr J. De Meyer,

Mr I. Foighel,

Sir John Freeland,

Mr L. Wildhaber,

Mr K. Jungwiert,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 27 January and

22 February 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 1/1994/448/527. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

2. Rules A apply to all cases referred to the Court before the

entry into force of Protocol No. 9 (P9) (1 October 1994) and

thereafter only to cases concerning States not bound by that

Protocol (P9). They correspond to the Rules that came into force

on 1 January 1983, as amended several times subsequently.

_______________

PROCEDURE AND FACTS

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 15 January 1994

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 17440/90) against the United Kingdom of

Great Britain and Northern Ireland lodged with the Commission

under Article 25 (art. 25) by a British citizen, Mr Peter Welch,

on 22 June 1990.

2. In a judgment of 9 February 1995 ("the principal

judgment", Series A no. 307-A), the Court found that the

confiscation order of 24 August 1988 made against the applicant

following his conviction for drugs offences amounted to the

retrospective imposition of a penalty in breach of Article 7

para. 1 (art. 7-1) of the Convention (ibid., pp. 11-15,

paras. 22-36, and point 1 of the operative provisions).

The Court also held that the respondent State was to pay

the applicant, within three months, £13,852.60, less the sums

paid by way of legal aid, in respect of costs and expenses

(ibid., p. 15, paras. 40-41, and point 2 of the operative

provisions).

3. As the question of the application of Article 50

(art. 50) was not ready for decision in respect of pecuniary and

non-pecuniary damage, the Court reserved it and invited the

Government and the applicant to submit in writing, within three

months, their observations on the matter and, in particular, to

notify the Court of any agreement they might reach (ibid., p. 15,

para. 39, and point 3 of the operative provisions).

4. The negotiations for an agreement having proved

unsuccessful, the Registrar received memorials from the

Government and the applicant on 4 and 5 May 1995 respectively

concerning the question of damage.

5. In accordance with an order of the President of

16 May 1995, comments on the claims made by the applicant were

submitted by the Government on 18 July. The applicant replied

to these submissions on 18 September. On 20 October a further

comment was received from the Government.

6. On 6 November 1995 the Secretary to the Commission

informed the Registrar that the Delegate had no observations to

make as regards the above submissions.

7. Mr R. Pekkanen, who was unable to take further part in

the case, was subsequently replaced by Mr F. Gölcüklü (Rule 22

para. 1 of Rules of Court A).

AS TO THE LAW

8. Under Article 50 (art. 50) of the Convention,

"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 ... 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."

In reliance upon this provision the applicant sought

compensation for alleged pecuniary and non-pecuniary damage and

reimbursement of costs and expenses incurred during the

Article 50 (art. 50) phase of the proceedings.

9. It is not in dispute that the confiscation order made

under the Drug Trafficking Offences Act 1986 ("the DTOA") has not

been enforced. Indeed it is the understanding of the Court that

the order, which has been found to be in breach of Article 7

para. 1 (art. 7-1) of the Convention, will not be enforced

against the applicant.

10. Since the discussions that followed the principal

judgment did not lead to agreement, the conditions for applying

Article 50 (art. 50) have been satisfied.

A. Pecuniary damage

11. The applicant pointed out that as a result of the

restraint order of 31 July 1987 made pursuant to section 7 of the

DTOA he was prevented from, inter alia, "... disposing of,

diminishing or otherwise in any way dealing with any ... property

... within or without the jurisdiction ...". In consequence, he

incurred various pecuniary losses for which he should be

compensated in order to place him, as far as possible, in the

situation he would have been in had the proceedings under the

DTOA not been instituted against him.

He made the following claims under this head:

(1) £110,000 loss of rental relating to his villa in

Portugal;

(2) £16,300 as a result of the villa in Portugal falling

into disrepair;

(3) £174,296 due to lost capital in properties situated

in the United Kingdom which were said to have

diminished in market value since the restraint order

was made and the cost of repairs; and

(4) £1000 which had been taken from him by the police

when he was arrested.

12. The Government contended, inter alia, that the claims

were wholly unwarranted and extravagant. They maintained that

the applicant had suffered no actual prejudice and that he had

failed to prove any direct or even indirect causal link between

the violation and the alleged pecuniary damage. Moreover, as

regards his various properties he could have applied to the High

Court to obtain a variation of the terms of the restraint order.

In their submission the Court should be on its guard lest

compensation is awarded in respect of damage which resulted, not

from the confiscation order, but from the fact that the applicant

was no longer able to indulge in drug trafficking after his

arrest, with the result that his source of income came to an end.

13. The Court considers that the applicant's claim must be

rejected under this head. In the first place it notes that the

applicant did not complain of the effects of the restraint order

under the DTOA before the Convention institutions, his complaint

being limited to the retrospective application of the

confiscation order in violation of Article 7 para. 1 (art. 7-1)

of the Convention. Moreover, as regards the villa in Portugal,

it was open to him under the relevant provisions of the DTOA to

apply to the High Court for a variation of the restraint order

to enable him to let the property if he so desired. Since rental

and upkeep of the property were also in the interests of the

national authorities who were seeking the confiscation order

there is no reason to suppose that they would have objected to

any such application designed to maintain the value of the asset.

Indeed it is noteworthy in this respect that a variation of the

order was sought and granted on 6 October 1987 in respect of the

applicant's house in the United Kingdom (No. 2 Antique Cottages,

Newcastle Emlyn, Wales).

14. As regards the real property in the United Kingdom, the

Court observes that one of the houses (7 Uplands Crescent,

Swansea, Wales), supposedly affected by the restraint order, in

fact belonged to the applicant's wife who was not associated in

the proceedings before it. It was also open to her to apply to

the High Court for a variation or discharge of the order on the

grounds that her husband was not the owner and had no interest

in the property. In addition, the other property, which was in

the applicant's name (2 Antique Cottages), had been sold, as

indicated above. The proceeds of sale were placed on deposit and

have been returned with interest since the Court's principal

judgment. No basis for his claim in respect of these properties

has thus been established.

15. Finally no claim can arise in respect of the £1,000 which

was seized when the applicant was arrested. This sum was

eventually forfeited by a court order under the Misuse of

Drugs Act 1971 and not as a result of the confiscation order

under the DTOA.

16. In sum, the Court does not consider that the alleged

losses can legitimately be said to result from the application

to Mr Welch of the confiscatory provisions of the DTOA.

B. Non-pecuniary damage

17. The applicant claimed more than £19,000 under this head

for loss of amenities. He referred in this context to, inter

alia, problems with creditors, debts, worries and financial

hardship generally as well as the fact that his wife and children

were denied access to her property.

18. The Government pointed out that the applicant's family

were not "victims" within the meaning of Article 50 (art. 50) and

submitted that no compensation should be paid in this connection.

19. The Court considers that, having regard to the

circumstances of the case, the finding of a violation of

Article 7 para. 1 (art. 7-1) of the Convention constitutes, in

itself, sufficient just satisfaction as to the alleged

non-pecuniary damage.

C. Costs and expenses

20. The applicant claimed £2,750 for costs and expenses

referable to the Article 50 (art. 50) phase of the proceedings.

21. The Government submitted that the Court should refuse the

claim for costs if it rejects the applicant's claim for damage.

22. Since the applicant's claims for compensation have

failed, the Court sees no reason why an award in respect of costs

and expenses should be made.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that the finding of a violation of Article 7

para. 1 (art. 7-1) of the Convention constitutes, in

itself, sufficient just satisfaction as to the alleged

non-pecuniary damage;

2. Dismisses the remainder of the applicant's claim for just

satisfaction under Article 50 (art. 50) of the

Convention.

Done in English and in French, and notified in writing on

26 February 1996 pursuant to Rule 55 para. 2, second

sub-paragraph, of Rules of Court A.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar