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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> BENHAM v. THE UNITED KINGDOM - 19380/92 [1996] ECHR 22 (10 June 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/22.html
Cite as: (1996) 22 EHRR 293, 22 EHRR 293, [1996] ECHR 22

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

The European Court of Human Rights, sitting, in pursuance of

Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr B. Walsh,

Mr R. Macdonald,

Mr J. De Meyer,

Mrs E. Palm,

Mr I. Foighel,

Mr R. Pekkanen,

Mr A.N. Loizou,

Sir John Freeland,

Mr A.B. Baka,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr G. Mifsud Bonnici,

Mr D. Gotchev,

Mr B. Repik,

Mr P. Jambrek,

Mr K. Jungwiert,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 26 January 1996 and 24 May 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 7/1995/513/597. 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

1. The case was referred to the Court on 23 January 1995 by the

European Commission of Human Rights ("the Commission") and on

26 January 1995 by the Government of the United Kingdom of Great

Britain and Northern Ireland ("the Government"), 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. 19380/92) against the United Kingdom lodged with the Commission

under Article 25 (art. 25) on 20 September 1991 by a British national,

Mr Stephen Andrew Benham.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby the United Kingdom recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46); the

Government's application referred to Article 48 (art. 48). The object

of the request and of the application was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Articles 5 and 6 (art. 5, art. 6) of the

Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he

wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Sir John Freeland, the elected judge of British nationality (Article 43

of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President

of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of

the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot

the names of the other seven members, namely Mr Thór Vilhjálmsson,

Mr B. Walsh, Mr R. Macdonald, Mr I. Foighel, Mr L. Wildhaber,

Mr G. Mifsud Bonnici and Mr D. Gotchev (Article 43 in fine of the

Convention and Rule 21 para. 5) (art. 43).

4. The President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

through the Registrar, consulted the Agent of the Government, the

applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant

to the order made in consequence, the Registrar received the

Government's memorial on 27 July 1995 and the applicant's memorial on

7 August 1995.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

22 November 1995. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr M. Eaton, Deputy Legal Adviser,

Foreign and Commonwealth Office, Agent,

Mr D. Pannick QC,

Mr P. Duffy, Counsel,

Mr M. Collon, Lord Chancellor's Department, Adviser;

(b) for the Commission

Mrs J. Liddy, Delegate;

(c) for the applicant

Mr B. Emmerson,

Professor A. Bradley, Counsel,

Mr J. Wadham Adviser.

The Court heard addresses by Mrs Liddy, Mr Emmerson and

Mr Pannick.

6. Following deliberations on 23 November 1995 the Chamber decided

to relinquish jurisdiction forthwith in favour of a Grand Chamber

(Rule 51 para. 1).

7. The Grand Chamber to be constituted included ex officio

Mr Ryssdal, President of the Court, Mr Bernhardt, Vice-President of the

Court, and the other members and substitute judges (namely,

Mr B. Repik, Mr F. Gölcüklü, Mr R. Pekkanen and Mr K. Jungwiert) of the

Chamber which had relinquished jurisdiction (Rule 51 para. 2 (a) and

(b)). On 5 December 1995, in the presence of the Registrar, the

President drew by lot the names of the seven additional judges called

on to complete the Grand Chamber, namely Mr F. Matscher,

Mr J. De Meyer, Mrs E. Palm, Mr A.N. Loizou, Mr A.B. Baka,

Mr M.A. Lopes Rocha and Mr P. Jambrek (Rule 51 para. 2 (c)).

8. Having taken note of the opinions of the Agent of the Government,

the Delegate of the Commission and the applicant, the Grand Chamber

decided on 26 January 1996 that it was not necessary to hold a further

hearing following the relinquishment of jurisdiction by the Chamber

(Rule 38, taken together with Rule 51 para. 6).

AS TO THE FACTS

I. Circumstances of the case

9. On 1 April 1990 Mr Benham became liable to pay a community charge

of £325. Since he did not pay it, on 21 August 1990 the Poole

Magistrates' Court ordered the issue of a liability order, entitling

Poole Borough Council ("the charging authority") to commence

enforcement proceedings against him (see paragraph 19 below,

Regulations 29 and 39 (1)).

10. Mr Benham did not pay the amount owed, and bailiffs visited his

parents' house (where he was living), but were told that he had no

goods of any value there or elsewhere which could be seized by them and

sold in order to pay the debt.

11. Under Regulation 41 of the Community Charge (Administration and

Enforcement) Regulations 1989 ("the Regulations": see paragraph 19

below), if a person is found to have insufficient goods on which to

levy outstanding community charge the charging authority may apply to

a magistrates' court for an order committing him to prison. On such

an application being made, the court must inquire in the presence of

the debtor as to his present means and also whether his failure to pay

which led to the liability order being made was due to wilful refusal

or culpable neglect.

The charging authority applied for such an order, and on

25 March 1991 Mr Benham appeared at the Poole Magistrates' Court for

the inquiry required by the Regulations.

He was not assisted or represented by a lawyer, although he was

eligible for "Green Form" legal advice and assistance before the

hearing (see paragraph 29 below), and the magistrates could have made

an order for Assistance by Way of Representation ("ABWOR") if they had

thought it necessary (see paragraph 30 below).

12. The magistrates found that Mr Benham, who had 9 "O" level General

Certificates of Secondary Education, had started a Government

Employment Training Scheme in September 1989, but had left it

in March 1990 and had not worked since. He had applied for income

support, but had been turned down because it is not payable to those

who are voluntarily unemployed, and he had no personal assets or

income.

On the basis of this evidence, the magistrates concluded that his

failure to pay the community charge was due to his culpable neglect,

"as he clearly had the potential to earn money to discharge his

obligation to pay". Accordingly, they decided that he ought to be sent

to prison for thirty days unless he paid what was owing.

Mr Benham was taken to Dorchester prison on the same day.

13. On 27 March 1991 a solicitor went on the record as representing

Mr Benham and lodged a notice of appeal by way of case stated (see

paragraph 21 below) and an application for bail pending appeal (see

paragraph 22 below). Legal aid was obtained for the appeal, but not

for the bail application, because it is not available for such

proceedings. In the event, the solicitor appeared without payment

before the magistrates on 28 March 1991 to apply for bail, but he was

unsuccessful.

14. On 4 April 1991 Mr Benham's solicitor lodged an application for

leave to apply for judicial review and for bail in the High Court. He

was obliged to ask for judicial review, despite the fact that he had

already lodged an appeal by way of case stated, because otherwise he

could not have applied for bail in the High Court until the magistrates

had stated a case (see paragraph 22 below). Bail was granted on

5 April 1991 and Mr Benham was thus released from prison, having served

eleven days.

15. The Divisional Court heard the appeal by way of case stated and

the application for judicial review together on 7 and 8 October 1991

(Regina v. Poole Magistrates, ex parte Benham, 8 October 1991,

unreported). Mr Benham was represented and legally aided. The court

noted that it had been necessary to apply for judicial review in order

to get bail, but that the case stated procedure was more appropriate.

Accordingly no order was made on the judicial review application.

16. Mr Justice Potts in the Divisional Court held that the

magistrates had been mistaken in concluding that Mr Benham's failure

to pay the community charge had been due to culpable neglect:

"In my view this finding was wrong on the evidence available to

the justices. In certain circumstances a failure on the part of

the debtor to work and put himself in funds to pay the community

charge might constitute culpable neglect. In my judgment,

however, before such a finding could be sustained, at the very

least there would have to be clear evidence that gainful

employment, for which he was fit, was on offer to the debtor and

that he had rejected or refused that offer. There was no such

evidence in this case. In my judgment, the justices' finding of

culpable neglect cannot be sustained on the evidence adduced

before them."

17. In addition, he found that the decision to commit Mr Benham to

prison would have been wrong even if there had been evidence of

culpable neglect, because he did not have any means with which to pay

the debt at the time of the hearing before the magistrates, and because

"[s]uch an order is only to be made if payment can be made and there

is no other way of inducing the [debtor] to do so". In the

circumstances it was incumbent upon them to consider the alternatives

to immediate detention provided for by the Regulations: they could have

suspended the term of imprisonment subject to such conditions as they

thought fit, or refused to issue a warrant, since the local authority

could have renewed their application at a later date if Mr Benham's

circumstances had changed (see paragraph 19 below).

18. Mr Benham was not able to apply for compensation in respect of

the time he spent in prison, because he was unable to show bad faith

on the part of the magistrates, as was required by section 108 of the

Courts and Legal Services Act 1990 (see paragraph 28 below).

II. Relevant domestic law and practice

A. Provisions concerning enforcement of payment of the

community charge

19. The relevant subordinate legislation is the Community Charge

(Administration and Enforcement) Regulations 1989 (Statutory

Instrument 1989/438) ("the Regulations").

The relevant provisions of Regulation 29 ("application for a

liability order") are as follows:

"(1) If an amount which has fallen due ... is wholly or partly

unpaid ... the charging authority may ... apply to a magistrates'

court for an order against the person by whom it is payable.

...

(5) The court shall make the order if it is satisfied that the

sum has become payable by the defendant and has not been paid."

Regulation 39 (1) provides for the seizure and sale of a debtor's

property ("levying of distress"):

"Where a liability order has been made the authority which

applied for the order may levy the appropriate amount by distress

and sale of goods of the debtor against whom the order was made."

Regulation 41 is concerned with the committal to prison of a

debtor, and provides, so far as is relevant:

"(1) Where a charging authority has sought to levy an amount by

distress under Regulation 39, the debtor is an individual, and

it appears to the authority that no (or insufficient) goods of

the debtor can be found on which to levy the amount, the

authority may apply to a magistrates' court for the issue of a

warrant committing the debtor to prison.

(2) On such application being made the court shall (in the

debtor's presence) inquire as to his means and inquire whether

the failure to pay which led to the liability order concerned

being made against him was due to his wilful refusal or culpable

neglect.

(3) If (and only if) the court is of the opinion that his failure

was due to his wilful refusal or culpable neglect it may if it

thinks fit -

(a) issue a warrant of commitment against the debtor, or

(b) fix a term of imprisonment and postpone the issue of the

warrant until such time and on such conditions (if any) as

the court thinks just.

...

(7) The order in the warrant shall be that the debtor be

imprisoned for a time specified in the warrant which shall not

exceed three months, unless the amount stated in the warrant is

sooner paid ..."

The relevant part of Regulation 42 provides:

(3) Where an application under regulation 41 has been made but

no warrant is issued or term of imprisonment fixed, the

application may be renewed ... on the ground that the

circumstances of the debtor have changed."

20. In Regina v. Highbury Corner Magistrates, ex parte Watkins

(9 October 1992, unreported) Mr Justice Henry said in the High Court

that "The proceedings under Regulation 41 are plainly legal proceedings

other than criminal proceedings. They are proceedings for the recovery

of an unpaid tax." However, in Regina v. Hebburn Justices, ex parte

Martin (31 July 1995, unreported), Mr Justice Sedley in the High Court

held that although the initial obligation to pay community charge was

a civil one, magistrates "who have reached the point of committal are

entertaining a criminal process".

B. Appeal from a decision of a magistrates' court by way of

case stated

21. By virtue of section 111 of the Magistrates' Court Act 1980 a

party to proceedings before a magistrates' court may "question the

proceeding on the ground that it is wrong in law or is in excess of

jurisdiction by applying to the justices composing the court to state

a case for the opinion of the High Court on the question of law or

jurisdiction involved ...". This is known as the "case stated"

procedure.

22. Under section 113 of the 1980 Act, magistrates may grant bail to

a party who applies to them to state a case; but if they refuse to do

so, in cases categorised as "civil" under the domestic law, the High

Court has no jurisdiction to grant bail until it is seized of some

substantive proceedings to which the grant of bail can be ancillary.

23. Acts performed pursuant to an order made by a magistrates' court

which is subsequently set aside by a superior court are not themselves

inherently unlawful. It is at the discretion of the higher court

whether these collateral acts are also invalid: Regina v. Deputy

Governor of Parkhurst Prison, ex parte Hague [1992] 1 Appeal Cases 58,

124D-G (per Lord Justice Taylor in the Court of Appeal); London and

Clydeside Estates Ltd v. Aberdeen District Council [1980] 1 Weekly Law

Reports 182, 189C-190C (per Lord Hailsham, Lord Chancellor, in the

House of Lords); Regina v. Panel on Take-overs and Mergers, ex parte

Datafin PLC [1987] Queen's Bench 815, 840A-C (per Sir John Donaldson,

Master of the Rolls).

C. The distinction between an act of a magistrates' court

which is merely wrong in law and one which is so wrong as

to be in excess of jurisdiction

24. In English law, orders of a magistrates' court which are in

excess of jurisdiction are void from the outset, whereas orders made

within jurisdiction remain valid until set aside by a superior court.

It is only in respect of the former type of error that a court can

be held civilly liable in damages (under section 108 of the Courts and

Legal Services Act 1990, which replaced section 45 of the Justices of

the Peace Act 1979 - see paragraphs 27-28 below).

25. The appropriate test for whether an order of a magistrates' court

is void for lack of jurisdiction is that set out by the House of Lords

in McC. v. Mullan [1985] Appeal Cases 528. In that case magistrates

had made an order sending a 14-year-old boy to a training school after

a hearing at which he was not legally represented, had not applied for

legal aid and had not been informed of his right so to do. The order

was quashed on judicial review on the ground that, by virtue of

Article 15 (1) of the Treatment of Offenders (Northern Ireland)

Order 1976, magistrates were not permitted to pass a custodial sentence

for the first time on a juvenile who was not legally represented,

unless he had applied for legal aid and been refused on grounds of

means or had been informed of his right to apply for it but had refused

or neglected to do so.

The boy then applied for damages for false imprisonment against

the magistrates. Since the case was decided prior to the enactment of

the Courts and Legal Services Act 1990 and at a time when it was the

law that magistrates were liable in damages for false imprisonment if

they acted in excess of jurisdiction (see paragraph 26 below), the

House of Lords was required to decide the jurisdictional question.

In its judgment, a magistrates' court acted in excess of

jurisdiction in three circumstances only: (1) if it acted without

having jurisdiction over the cause, (2) if it exercised its powers in

a procedural manner that involved a gross and obvious irregularity, or

(3) if it made an order that had no proper foundation in law because

of a failure to observe a statutory condition precedent. The instant

case fell within the third limb of the rule: the magistrates were

liable in damages because they had not observed the requirements of

Article 15 (1) of the 1976 Order.

During the course of his judgment speech, Lord Bridge commented

(at page 546 E-F), on the jurisdiction of magistrates in conducting a

criminal trial:

"... once justices have duly entered upon a summary trial of a

matter within their jurisdiction, only something quite

exceptional occurring in the course of their proceeding to a

determination can oust their jurisdiction ... [A]n error

(whether of fact or law) in deciding a collateral issue on which

jurisdiction depends will not do so. Nor will the absence of any

evidence to support a conviction ..."

26. The final limb of the rule formulated by the House of Lords in

McC. v. Mullan (that is, that magistrates exceed their jurisdiction

when they make an order which has no foundation in law because of a

failure to observe a statutory condition precedent) was applied by the

Court of Appeal in R. v. Manchester City Magistrates' Court, ex

parte Davies [1989] 1 All England Reports 30, a case concerning rates

(the predecessor to the community charge). Again, the issue was

whether magistrates had acted in excess of jurisdiction and were

therefore liable in damages for false imprisonment.

The plaintiff had been unable to pay all of the rates for which

he became liable in December 1984, and in January 1986 he failed to

follow his accountant's advice to close his business and to go

bankrupt. Applying legislation similar to Regulation 41 of the

Community Charge Regulations, the magistrates found that his failure

to follow the accountant's advice constituted culpable neglect and they

committed him to prison. The Court of Appeal held that no causal

connection had been established between the failure to follow advice

in 1986 and the failure to pay the rates in 1984, and that the

magistrates had not properly entered into the inquiry (as to whether

the failure to pay was due to culpable neglect) required by the

legislation as a condition precedent of the warrant of commitment.

They were therefore acting in excess of jurisdiction and were liable

in damages.

The three Appeal Court judges expressed their findings in

slightly different terms. Lord Justice O'Connor observed that "they

never carried out the inquiry required [by the law]";

Lord Justice Neill found that "some inquiry about the applicant's

finances was made", but that "a clear and crucial distinction can be

drawn between the inquiry required by the statute and the inquiry which

was in fact carried out. The justices never examined the question

whether the failure to pay was due to culpable neglect"; and

Sir Roger Ormrod (who dissented from the majority decision) said: "...

it is quite clear that the justices carried out an inquiry into means

carefully and in detail ... It is equally plain that they misdirected

themselves completely ... They ... failed to realise that the question

they had to decide was whether the applicant's failure to pay his rates

was `due either to his wilful refusal or to his culpable neglect'" (see

pp. 637 B, 642 H-643 G and 647 E).

D. The immunity of magistrates from civil proceedings

27. Magistrates enjoy a statutory immunity from civil liability in

certain circumstances. Before the coming into force of section 108 of

the Courts and Legal Services Act 1990 on 1 January 1991, this immunity

was provided for by sections 44 and 45 of the Justices of the

Peace Act 1979. In brief, a magistrate was liable in damages for acts

done by him in his official capacity if it could be proved either (1)

that the act was done maliciously and without reasonable and probable

cause or (2) that it was performed outside or in excess of jurisdiction

(see paragraph 25 above for the meaning of the latter expression).

28. The position under section 108 of the Courts and Legal

Services Act 1990 is now that an action lies against a magistrate only

if it can be proved that he acted both in bad faith and in excess of

jurisdiction:

"An action shall lie against any justice of the peace ... in

respect of any act or omission of his -

(a) in the purported execution of his duty -

(i) as such a justice; ...

(b) with respect to any matter which is not within his

jurisdiction,

if, but only if, it is proved that he acted in bad faith."

E. Legal aid

29. The legal-aid scheme does not provide for full representation

before magistrates for proceedings for committal to prison for

non-payment of the community charge. The "Green Form" scheme provides

at least two hours' worth of advice and assistance from a solicitor

(the time limit can be extended), including preparation for a court

case, but it does not provide for representation.

30. Assistance by Way of Representation ("ABWOR") enables a

magistrates' court, in certain circumstances, to appoint a solicitor

who happens to be within the court precincts to represent a party who

would not otherwise be represented. Regulation 7 (1) (b) of the Legal

Advice and Assistance (Scope) Regulations 1989 provides that ABWOR may

be given:

"at a hearing in any proceedings in a magistrates' court to a

party who is not receiving and has not been refused

representation in connection with those proceedings, where the

court -

(i) is satisfied that the hearing should proceed on the same

day;

(ii) is satisfied that that party would not otherwise be

represented; and

(iii) requests a solicitor who is within the precincts of

the court for purposes other than the provision of

ABWOR in accordance with this sub-paragraph, or

approves a proposal from such a solicitor, that he

provide that party with ABWOR ..."

PROCEEDINGS BEFORE THE COMMISSION

31. In his application (no. 19380/92) of 20 September 1991 to the

Commission, the applicant complained that his detention between

25 March 1991 and 5 April 1991 was unlawful, in violation of Article 5

para. 1 of the Convention (art. 5-1); that section 108 of the Courts

and Legal Services Act 1989 deprived him of an enforceable right to

compensation in respect of it, contrary to Article 5 para. 5

(art. 5-5); and that the fact that full legal aid was not available to

him for the committal hearing before the magistrates constituted a

violation of Article 6 (art. 6).

32. The Commission declared the application admissible on

13 January 1994. In its report of 29 November 1994 (Article 31)

(art. 31), it concluded, by twelve votes to six, that there had been

a violation of Article 5 para. 1 of the Convention (art. 5-1); by

seventeen votes to one that there had been a violation of Article 5

para. 5 (art. 5-5); and by fifteen votes to three that there had been

a violation of Article 6 para. 3 (c) (art. 6-3-c).

The full text of the Commission's opinion and of the five

separate opinions contained in the report is reproduced as an annex to

this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-III), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS MADE TO THE COURT

33. At the hearing on 22 November 1995 the Government, as they had

done in their memorial, invited the Court to hold that there had been

no violations of Articles 5 and 6 of the Convention (art. 5, art. 6).

34. On the same occasion the applicant reiterated his request to the

Court, stated in his memorial, to find that there had been breaches of

Articles 5 and 6 (art. 5, art. 6) and to award him just satisfaction

under Article 50 of the Convention (art. 50).

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1) OF THE

CONVENTION

35. The applicant submitted that his detention between 25 March 1991

and 5 April 1991 constituted a violation of Article 5 para. 1

(art. 5-1) of the Convention, which reads as follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a

competent court;

(b) the lawful arrest or detention of a person for

non-compliance with the lawful order of a court or in order to

secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the

purpose of bringing him before the competent legal authority on

reasonable suspicion of having committed an offence or when it

is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of

educational supervision or his lawful detention for the purpose

of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the

spreading of infectious diseases, of persons of unsound mind,

alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his

effecting an unauthorised entry into the country or of a person

against whom action is being taken with a view to deportation or

extradition."

The Commission agreed with the applicant, whereas the Government

contested his allegations.

36. The applicant argued that the decision of the Divisional Court

(see paragraphs 16-17 above) was not distinguishable from that of the

Court of Appeal in Manchester City Magistrates' Court, ex parte Davies

(see paragraph 26 above) and amounted in substance to a ruling that his

detention had been ordered by the magistrates in excess of their

jurisdiction and was thus unlawful under English law. If this was so,

it was in violation of Article 5 para. 1 (art. 5-1), which refers back

to the position under national law.

Furthermore, his imprisonment was not covered by any of the

sub-paragraphs of Article 5 para. 1 (art. 5-1). It did not result from

a criminal conviction as required by Article 5 para. 1 (a)

(art. 5-1-a), and, since he did not have any way of paying the debt,

it could not have been intended to secure the fulfilment of an

obligation prescribed by law within the terms of Article 5 para. 1 (b)

(art. 5-1-b).

In addition, he argued that his detention was manifestly

arbitrary. The Divisional Court found that there was no evidence of

culpable neglect and that the magistrates' decision to imprison him was

unreasonable in the sense of being irrational or perverse. The

magistrates, therefore, acted beyond their powers in imprisoning him,

and the imposition of a penalty which is beyond the authorisation of

the law is necessarily an arbitrary one.

Finally, he contended that, since he was denied legal

representation in violation of Article 6 of the Convention (art. 6),

the detention was for that reason unlawful.

37. For the Commission, the weight of argument tended to the view

that, in domestic law, the applicant's detention was not "lawful" as

required by Article 5 para. 1 (art. 5-1).

38. The Government submitted that Mr Benham's detention was "lawful"

and "in accordance with a procedure prescribed by law" for the purposes

of Article 5 para. 1 (art. 5-1). The Community Charge Regulations (see

paragraph 19 above) conferred on the magistrates' court the power to

send him to prison if they were of the opinion that his failure to pay

was due to culpable neglect. Unlike the magistrates in Manchester City

Magistrates' Court, ex parte Davies (see paragraph 26 above), the

magistrates in the instant case did carry out the inquiry required by

law as to whether Mr Benham's failure to pay resulted from culpable

neglect. They made errors of fact and law in answering that question,

but the Divisional Court did not find that these errors were such as

to deprive them of jurisdiction.

39. The Court first observes that this case falls to be examined

under sub-paragraph (b) of Article 5 para. 1 (art. 5-1-b), since the

purpose of the detention was to secure the fulfilment of Mr Benham's

obligation to pay the community charge owed by him.

40. The main issue to be determined in the present case is whether

the disputed detention was "lawful", including whether it complied with

"a procedure prescribed by law". The Convention here essentially

refers back to national law and states the obligation to conform to the

substantive and procedural rules thereof, but it requires in addition

that any deprivation of liberty should be consistent with the purpose

of Article 5 (art. 5), namely to protect individuals from arbitrariness

(see the Quinn v. France judgment of 22 March 1995, Series A no. 311,

p. 18, para. 47).

41. It is in the first place for the national authorities, notably

the courts, to interpret and apply domestic law. However, since under

Article 5 para. 1 (art. 5-1) failure to comply with domestic law

entails a breach of the Convention, it follows that the Court can and

should exercise a certain power to review whether this law has been

complied with (see the Bouamar v. Belgium judgment of 29 February 1988,

Series A no. 129, p. 21, para. 49).

42. A period of detention will in principle be lawful if it is

carried out pursuant to a court order. A subsequent finding that the

court erred under domestic law in making the order will not necessarily

retrospectively affect the validity of the intervening period of

detention. For this reason, the Strasbourg organs have consistently

refused to uphold applications from persons convicted of criminal

offences who complain that their convictions or sentences were found

by the appellate courts to have been based on errors of fact or law

(see the Bozano v. France judgment of 18 December 1986, Series A

no. 111, p. 23, para. 55, and the report of the Commission of

9 March 1978 on application no. 7629/76, Krzycki v. Germany, Decisions

and Reports 13, pp. 60-61).

43. It was agreed by those appearing before the Court that the

principles of English law which should be taken into account in this

case distinguished between acts of a magistrates' court which were

within its jurisdiction and those which were in excess of jurisdiction.

The former were valid and effective unless or until they were

overturned by a superior court, whereas the latter were null and void

from the outset (see paragraph 24 above).

It was further submitted that the appropriate test under English

law for deciding whether or not magistrates acted within their

jurisdiction was that laid down by the House of Lords in McC. v. Mullan

(see paragraph 25 above). The third limb of that test was relevant to

the instant case, namely that magistrates exceeded their jurisdiction

when they made an order which had no foundation in law because of a

failure to observe a statutory condition precedent.

This limb was applied by the Court of Appeal in Manchester City

Magistrates' Court, ex parte Davies (see paragraph 26 above). In that

case the appeal court found that magistrates had acted in excess of

jurisdiction when they committed a man to prison for non-payment of

rates without having carried out the inquiry required by law as to

whether his failure to pay was due to culpable neglect.

44. In each of the two cases referred to above it was necessary for

the courts to decide the jurisdictional issue, because at the relevant

time damages could be awarded against magistrates who acted in excess

of jurisdiction. However, section 108 of the Courts and Legal

Services Act 1990 has since changed the law to provide that there is

no right to damages unless magistrates acted in bad faith (see

paragraph 28 above). For this reason, when the Divisional Court

reviewed the magistrates' order for Mr Benham's detention, there was

no reason under English law for it to decide whether or not the order

had been made in excess of jurisdiction.

Mr Justice Potts in the Divisional Court found that the

magistrates had carried out some inquiry as to whether Mr Benham's

failure to pay the community charge was due to his culpable neglect.

However, he concluded that their finding of culpable neglect could not

be sustained on the evidence available to them (see paragraph 16

above).

45. In the view of the Court, there are undoubtedly similarities

between this decision and that of the Court of Appeal in Manchester

City Magistrates' Court, ex parte Davies, but there are also notable

differences. In the latter case, the Court of Appeal held that the

magistrates had failed altogether to carry out the inquiry required by

law as to whether the debtor's failure to pay was the result of

culpable neglect (see paragraph 26 above). In the instant case,

however, the Divisional Court found that the magistrates had addressed

themselves to this question, although their finding of culpable neglect

could not be sustained on the available evidence.

46. Against the above background, it cannot be said with any degree

of certainty that the judgment of the Divisional Court was to the

effect that the magistrates acted in excess of jurisdiction within the

meaning of English law. It follows that the Court does not find it

established that the order for detention was invalid, and thus that the

detention which resulted from it was unlawful under national law (see

the above-mentioned Bouamar judgment p. 21, para. 49). The mere fact

that the order was set aside on appeal did not in itself affect the

lawfulness of the detention (see paragraph 42 above).

47. Nor does the Court find that the detention was arbitrary. It has

not been suggested that the magistrates who ordered Mr Benham's

detention acted in bad faith, nor that they neglected to attempt to

apply the relevant legislation correctly (see the above-mentioned

Bozano judgment, pp. 25-26, para. 59). It considers the question of

the lack of legal aid to be less relevant to the present head of

complaint than to that under Article 6 (art. 6) (see paragraph 64

below).

Accordingly, the Court finds no violation of Article 5 para. 1

of the Convention (art. 5-1).

II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 5 (art. 5-5) OF THE

CONVENTION

48. The applicant, with whom the Commission agreed, argued that since

he was detained in violation of Article 5 para. 1 (art. 5-1), he was

entitled to compensation from public funds in accordance with Article 5

para. 5 of the Convention (art. 5-5), which reads as follows:

"Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article (art. 5) shall

have an enforceable right to compensation."

49. The Government submitted that Article 5 para. 5 (art. 5-5) did

not apply because the applicant's detention was not in contravention

of Article 5 para. 1 (art. 5-1).

50. The Court observes that Article 5 para. 5 (art. 5-5) guarantees

an enforceable right to compensation only to those who have been the

victims of arrest or detention in contravention of the provisions of

Article 5 (art. 5) (see the Wassink v. the Netherlands judgment of

27 September 1990, Series A no. 185-A, p. 14, para. 38). In view of

its finding that there was no violation of Article 5 para. 1 (art. 5-1)

in this case, it concludes that Article 5 para. 5 (art. 5-5) is not

applicable.

III. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION

A. Article 6 para. 1 (art. 6-1) taken alone

51. The applicant contended that the fact that he had no automatic

right to legal representation at the hearing before the magistrates

meant that he was denied access to a fair hearing for the purposes of

Article 6 para. 1 (art. 6-1), which provides, so far as is relevant:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

... hearing ... by [a] ... tribunal ..."

52. Since the guarantees in paragraph 3 of Article 6 (art. 6-3) are

specific aspects of the right to a fair trial in criminal proceedings

guaranteed by paragraph 1 of the same Article (art. 6-1), the Court

considers it appropriate to examine this complaint from the perspective

of paragraphs 3 (c) and 1 taken together (art. 6-1+6-3-c) (see, for

example, the Granger v. the United Kingdom judgment of 28 March 1990,

Series A no. 174, p. 17, para. 43).

B. Article 6 para. 3 (c) taken together with Article 6 para. 1

(art. 6-1+6-3-c)

53. The applicant further complained that his lack of legal

representation during the proceedings before the magistrates

constituted a violation of Article 6 para. 3 (c) (art. 6-3-c) of the

Convention, which provides as follows:

"Everyone charged with a criminal offence has the following

minimum rights:

...

(c) to defend himself in person or through legal assistance of

his own choosing or, if he has not sufficient means to pay for

legal assistance, to be given it free when the interests of

justice so require;"

1. Applicability

54. The applicant, with whom the Commission agreed, argued that the

proceedings before the magistrates involved the determination of a

criminal charge for the purposes of Article 6 para. 3 (c) (art. 6-3-c).

He referred to the facts that what was in issue was not a dispute

between individuals but rather liability to pay a tax to a public

authority, and that the proceedings had many "criminal" features, such

as the safeguards available to defendants aged under 21, the severity

of the applicable penalty and the requirement of a finding of

culpability before a term of imprisonment could be imposed.

Furthermore, it was by no means clear that the proceedings were

classified as civil rather than criminal under the domestic law.

55. The Government argued that Article 6 para. 3 (c) (art. 6-3-c) did

not apply because the proceedings before the magistrates were civil

rather than criminal in nature, as was borne out by the weight of the

English case-law. The purpose of the detention was to coerce the

applicant into paying the tax owed, rather than to punish him for not

having paid it.

56. The case-law of the Court establishes that there are three

criteria to be taken into account when deciding whether a person was

"charged with a criminal offence" for the purposes of Article 6

(art. 6). These are the classification of the proceedings under

national law, the nature of the proceedings and the nature and degree

of severity of the penalty (see the Ravnsborg v. Sweden judgment of

23 March 1994, Series A no. 283-B).

As to the first of these criteria, the Court agrees with the

Government that the weight of the domestic authority indicates that,

under English law, the proceedings in question are regarded as civil

rather than criminal in nature. However, this factor is of relative

weight and serves only as a starting-point (see the Weber

v. Switzerland judgment of 22 May 1990, Series A no. 177, p. 17,

para. 31).

The second criterion, the nature of the proceedings, carries more

weight. In this connection, the Court notes that the law concerning

liability to pay the community charge and the procedure upon

non-payment was of general application to all citizens, and that the

proceedings in question were brought by a public authority under

statutory powers of enforcement. In addition, the proceedings had some

punitive elements. For example, the magistrates could only exercise

their power of committal to prison on a finding of wilful refusal to

pay or of culpable neglect.

Finally, it is to be recalled that the applicant faced a

relatively severe maximum penalty of three months' imprisonment, and

was in fact ordered to be detained for thirty days (see the Bendenoun

v. France judgment of 24 February 1994, Series A no. 284, p. 20,

para. 47).

Having regard to these factors, the Court concludes that

Mr Benham was "charged with a criminal offence" for the purposes of

Article 6 paras. 1 and 3 (art. 6-1, art. 6-3). Accordingly, these two

paragraphs of Article 6 (art. 6-1, art. 6-3) are applicable.

2. Compliance

57. The applicant submitted that the interests of justice required

that he ought to have been represented before the magistrates. He

referred to the facts that lay magistrates have no legal training and

in this case were required to interpret quite complex regulations. If

he had been legally represented the magistrates might have been brought

to appreciate the error that they were about to make. He asserted,

further, that the Green Form and ABWOR schemes which were available to

him (see paragraphs 29 and 30 above) were wholly inadequate.

58. The Government contended that the legal-aid provision available

to Mr Benham was adequate, and that the United Kingdom acted within its

margin of appreciation in deciding that public funds should be directed

elsewhere.

59. For the Commission, where immediate deprivation of liberty was

at stake the interests of justice in principle called for legal

representation.

60. It was not disputed that Mr Benham lacked sufficient means to pay

for legal assistance himself. The only issue before the Court is,

therefore, whether the interests of justice required that Mr Benham be

provided with free legal representation at the hearing before the

magistrates. In answering this question, regard must be had to the

severity of the penalty at stake and the complexity of the case (see

the Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205,

pp. 17-18, paras. 32-38).

61. The Court agrees with the Commission that where deprivation of

liberty is at stake, the interests of justice in principle call for

legal representation (see the above-mentioned Quaranta judgment p. 17,

para. 33). In this case, Mr Benham faced a maximum term of three

months' imprisonment.

62. Furthermore, the law which the magistrates had to apply was not

straightforward. The test for culpable negligence in particular was

difficult to understand and to operate, as was evidenced by the fact

that, in the judgment of the Divisional Court, the magistrates' finding

could not be sustained on the evidence before them.

63. The Court has regard to the fact that there were two types of

legal-aid provision available to Mr Benham. Under the Green Form

scheme he was entitled to up to two hours' advice and assistance from

a solicitor prior to the hearing, but the scheme did not cover legal

representation in court (see paragraph 29 above). Under the ABWOR

scheme, the magistrates could at their discretion have appointed a

solicitor to represent him, if one had happened to be in court (see

paragraph 30 above). However, Mr Benham was not entitled as of right

to be represented.

64. In view of the severity of the penalty risked by Mr Benham and

the complexity of the applicable law, the Court considers that the

interests of justice demanded that, in order to receive a fair hearing,

Mr Benham ought to have benefited from free legal representation during

the proceedings before the magistrates.

In conclusion, there has been a violation of Article 6 paras. 1

and 3 (c) of the Convention taken together (art. 6-1+6-3-c).

IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

65. The applicant sought just satisfaction under Article 50 (art. 50)

of the Convention, which 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 ... 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."

A. Non-pecuniary damage

66. Mr Benham claimed compensation for non-pecuniary damage in

respect of the violation of Article 6 (art. 6).

67. The Government pointed out that Mr Benham was legally represented

from 28 March 1991 onwards, when an unsuccessful bail application was

made on his behalf, and that any time spent in prison after that date

could not be attributed to his lack of representation at the hearing.

68. The Court considers, particularly in view of the impossibility

of speculating as to whether the magistrates would have made the order

for Mr Benham's detention had he been represented at the hearing before

them, that the finding of a violation is sufficient satisfaction.

B. Legal fees and expenses

69. The applicant further sought reimbursement of costs and expenses

totalling £26,523.80.

70. The Government objected that the amounts claimed by the applicant

were excessive. They submitted that, if the Court were to find for the

applicant on all counts, a figure of £23,293.94 should be substituted

for that sought.

However, in the event that the Court found violations in respect

of certain claims only, the costs and expenses allowed should be

reduced proportionately.

71. In view of the fact that the Court finds a violation in respect

of one of the applicant's complaints only, it considers that £10,000

(VAT included) is an appropriate amount for the respondent Government

to pay towards the applicant's legal costs and expenses, less the

25,510 French francs already paid in legal aid by the Council of

Europe.

C. Default interest

72. According to the information available to the Court, the

statutory rate of interest applicable in the United Kingdom at the date

of adoption of the present judgment is 8% per annum.

FOR THESE REASONS, THE COURT

1. Holds by seventeen votes to four that there has been no violation

of Article 5 para. 1 of the Convention (art. 5-1);

2. Holds by seventeen votes to four that Article 5 para. 5 of the

Convention (art. 5-5) is not applicable;

3. Holds unanimously that there has been a violation of Article 6

paras. 1 and 3 (c) of the Convention taken together

(art. 6-1+6-3-c);

4. Holds by nineteen votes to two that the finding of a violation

constitutes adequate satisfaction for the non-pecuniary damage

suffered by the applicant;

5. Holds unanimously

(a) that the respondent State is to pay the applicant, within

three months, in respect of costs and expenses, £10,000 (ten

thousand pounds sterling) less 25,510 (twenty-five thousand, five

hundred and ten) French francs to be converted into pounds

sterling at the rate applicable on the date of delivery of the

present judgment;

(b) that simple interest at an annual rate of 8% shall be payable

from the expiry of the above-mentioned three months until

settlement;

6. Dismisses, unanimously, the remainder of the claim for just

satisfaction in respect of costs and expenses.

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 10 June 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the partly

dissenting opinions of Mr Bernhardt, Mr Thór Vilhjálmsson, Mr De Meyer

and Mr Foighel are annexed to this judgment.

Initialled: R.R.

Initialled: H.P.

PARTLY DISSENTING OPINION OF JUDGE BERNHARDT

In my view there is a violation of Article 5 para. 1 (art. 5-1)

(and consequently also of Article 5 para. 5 (art. 5-5)) of the

Convention in the present case.

I leave aside my doubts whether a prison sentence is in the

circumstances of the case proportionate to the failure of Mr Benham to

pay a community charge. Detention may in such a case be appropriate

if there exists a chance that the detainee can and will pay the charge

under such pressure. But if it is undisputed that the detained person

has no means to pay the charge, a prison sentence is in my view hardly

compatible with the proper role of criminal sanctions in present-day

societies. But this is not the final reason of my dissent.

I understand Article 5 para. 1 of the Convention (art. 5-1) in

the sense that the words "lawful detention" refer to the conformity of

the decision ordering the detention with national law, in so far as the

material and procedural conditions contained in national law must be

satisfied. In the present case, it is clear from the decision of the

Divisional Court that under English law the magistrates should not have

sent Mr Benham to prison.

The present decision of the Court goes further and understands

the reference to national law in the sense that a detention which has

been ordered in violation of national law remains nevertheless lawful

if under national law the deciding judge or magistrate acted inside his

jurisdiction, if he did not act in bad faith, and if the order was not

void ab initio. This understanding of Article 5 (art. 5) has

far-reaching consequences. Even if the conditions provided for by

national law are not satisfied, the detention remains nevertheless

"lawful" if the national law distinguishes (which is often not the

case) between decisions which are void ab initio and other decisions.

Such a distinction - which leads often, including in the present case,

to extremely unclear results - neglects the situation and the interests

of the detained person. Decisive are the degree of the violation of

the national law, the corresponding error of the judge concerned and

the difference between void and "voidable" decisions. In my view,

Article 5 (art. 5) refers to national law only in so far as the

original detention order must be compatible with that law.

I do not think that the comparison drawn in paragraph 42 of the

judgment with convictions which are subsequently quashed by a higher

court is convincing. The present case concerns exclusively the

question whether the detention was "lawful" at the time when the

detention order was made.

PARTLY DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

To my regret, I have not found it possible to follow the majority

of the Court on the question whether there was a violation of Article 5

para. 1 of the Convention (art. 5-1).

The Commission came to the conclusion that "the weight of the

argument before it tends to be of the view that, in domestic law, the

applicant's detention was not lawful" (Commission's report,

paragraph 48).

The Court, on the other hand, did "not find it established that

the order for detention was invalid, and thus that the detention which

resulted from it was unlawful under national law ...".

The arguments for and against these different conclusions are

complicated and I am left in some uncertainty as to how to assess them.

This uncertainty reveals that the national law is far from clear,

yet what is in issue is an important question concerning personal

liberty.

As stated by the Court in the Bozano judgment, "Lawfulness, in

any event, also implies absence of any arbitrariness ..." (Series A

no. 111, p. 25, para. 59).

As in that judgment, the particular circumstances of the case are

relevant. Mr Benham was ordered to be detained for thirty days, and

actually served eleven days, for failure to pay a community charge, in

all £355, costs included. He had no personal assets or income, but the

English magistrates found that he clearly had the potential to earn

money to discharge his obligation to pay.

In my opinion, the warrant issued by the magistrates was very

severe in the circumstances.

For these reasons, I am of the opinion that Article 5 para. 1

(art. 5-1) was violated.

Consequently, I find Article 5 para. 5 (art. 5-5) to be

applicable. There was therefore, obviously, also a violation of that

provision (art. 5-5).

PARTLY DISSENTING OPINION OF JUDGE DE MEYER

I have no doubt that the purpose of the legal provision under

which the applicant was deprived of his liberty was to "secure the

fulfilment of" an "obligation prescribed by law".

However, since he had failed to fulfil the obligation concerned

and since that failure was found by the magistrates' court to be due

to his culpable neglect, the detention as such was, in my view, a

punishment "after conviction by a competent court" (1). It was indeed

a sanction imposed on him on account of conduct considered

reprehensible (2). That also suffices for me to conclude that he was

entitled to enjoy the rights recognised in Article 6 of the Convention

(art. 6) (3).

_______________

1. See Mr Justice Sedley's opinion referred to in paragraph 20 of the

present judgment and our Court's own conclusion in paragraph 56.

2. See my opinion in Putz v. Austria, 22 February 1996, at

paragraph 6.

3. Once again the Court applies, in paragraph 56 of the present

judgment, the three Engel criteria. As I have already tried to explain

in my opinion in Putz, at paragraphs 2-6, these criteria are not very

useful. It would be better to forget them altogether.

_______________

As far as Article 5 (art. 5) is concerned, I agree with

Mr Foighel for the reasons set forth in his dissenting opinion (4),

that the applicant's detention was not lawful.

_______________

4. See below.

_______________

As to Article 6 (art. 6), it is enough for me to see that he was

not assisted by counsel before the magistrates' court and that it has

not been shown either that he had willingly and knowingly waived such

assistance or that the interests of justice did not require it in the

instance concerned (5).

_______________

5. See my concurring opinion in Boner v. the United Kingdom,

28 October 1994, Series A no. 300-B, p. 78.

_______________

Finally, I feel that the Court should have granted some financial

compensation to the applicant.

PARTLY DISSENTING OPINION OF JUDGE FOIGHEL

It has been constantly held by this Court that the right to

liberty and security of person in Article 5 (art. 5) is one of the

fundamental rights in the Convention.

The Court's starting-point should therefore be that any

exceptions to this rule are to be interpreted narrowly.

The exception relevant to this case is Article 5 para. 1 (b)

(art. 5-1-b), which permits

"(b) the lawful arrest or detention of a person for

non-compliance with the lawful order of a court or in order to

secure the fulfilment of any obligation prescribed by law;"

It is obvious that the Convention here essentially refers back

to national law and lays an obligation on the national authority to

comply with the substantive and procedural rules of that law, but it

requires in addition that any deprivation of liberty should be

consistent with the purpose of Article 5 (art. 5), namely to protect

individuals from arbitrariness.

The duty of interpreting and applying domestic law falls, in the

first place, to the national authorities, notably the courts.

If, however, the national law is obscure or uncertain, or if

different interpretations of it are equally possible, it is incumbent

on this Court - for the purpose of interpreting and implementing the

Convention - to choose the interpretation of the national law which

most closely corresponds with the purpose of Article 5 (art. 5), namely

to protect individuals from arbitrariness.

In this case the Divisional Court found at the hearing

in October 1991 that the magistrates' decision to commit Mr Benham to

prison had been unlawful. The Divisional Court was, however, silent

as to whether Mr Benham's detention was unlawful from the start or

whether it was unlawful only subsequent to the Divisional Court's

decision. Further, it appeared from the addresses to the Court that

- according to some interpretations of the English case-law - both

interpretations were possible.

Against this background I would hold that in relation to

Article 5 para. 1 (art. 5-1) the detention of Mr Benham was unlawful

from the start, as the detention of a young man for thirty days for not

having paid a tax of £325 is in itself, notwithstanding technical

arguments, a flagrant violation of the liberty of person protected by

the Convention.

Consequently, I find Mr Benham entitled to compensation for

non-pecuniary damage in accordance with Article 50 (art. 50).



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