McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT
54
the killing of the three terrorists constituted the use of force which was no
more than absolutely necessary in defence of persons from unlawful
violence within the meaning of Article 2 para. 2 (a) (art. 2-2-a) of the
Convention.
214. Accordingly, the Court finds that there has been a breach of
Article 2 (art. 2) of the Convention.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
215. Article 50 (art. 50) of the Convention provides 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."
216. The applicants requested the award of damages at the same level as
would be awarded under English law to a person who was unlawfully killed
by agents of the State. They also asked, in the event of the Court finding
that the killings were both unlawful and deliberate or were the result of
gross negligence, exemplary damages at the same level as would be
awarded under English law to a relative of a person killed in similar
circumstances.
217. As regards costs and expenses, they asked for all costs arising
directly or indirectly from the killings, including the costs of relatives and
lawyers attending the Gibraltar inquest and all Strasbourg costs. The
solicitor’s costs and expenses in respect of the Gibraltar inquest are
estimated at £56,200 and his Strasbourg costs at £28,800. Counsel claimed
£16,700 in respect of Strasbourg costs and expenses.
218. The Government contended that, in the event of a finding of a
violation, financial compensation in the form of pecuniary and nonpecuniary damages would be unnecessary and inappropriate.
As regards the costs incurred before the Strasbourg institutions, they
submitted that the applicants should be awarded only the costs actually and
necessarily incurred by them and which were reasonable as to quantum.
However, as regards the claim for costs in respect of the Gibraltar inquest,
they maintained that (1) as a point of principle, the costs of the domestic
proceedings, including the costs of the inquest, should not be recoverable
under Article 50 (art. 50); (2) since the applicants’ legal representatives
acted free of charge, there can be no basis for an award to the applicants; (3)
in any event, the costs claimed were not calculated on the basis of the
normal rates of the solicitor concerned.
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