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FIRST
SECTION
CASE OF GASHI v. CROATIA
(Application
no. 32457/05)
JUDGMENT
(Just
satisfaction)
STRASBOURG
9
October 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gashi v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 18 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 32457/05)
against the Republic of Croatia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Croatian
citizen, Mr Shani Gashi (“the applicant”), on 4 August
2005. The applicant died during the proceedings. His spouse, Mrs
Katica Gashi, expressed the wish to proceed with the application both
on her own behalf and on behalf of her minor son, Edon Gashi.
- In
a judgment delivered on 13 December 2007 (“the principal
judgment”), the Court held that in annulling the sale contract
concerning a flat in Pula concluded between the applicant and the
Pula Municipality, the national authorities had violated the
applicant’s right to peaceful enjoyment of his possessions (see
Gashi v. Croatia, no. 32457/05, 13 December 2007).
- Under
Article 41 of the Convention the applicant’s widow and son
sought 32,634.77 euros (EUR) in respect of pecuniary damage and
EUR 35,000 in respect of non-pecuniary damage. They further
claimed 12,593 Croatian kunas (HRK) in respect of costs and expenses.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach (ibid., § 49, and point
4 of the operative provisions).
- The
applicant and the Government each filed observations.
THE LAW
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
- The
applicant’s widow and son claimed a sum of EUR 32,634.77 in
respect of pecuniary damage. They argued that the market value of the
flat in question was HRK 7,300 per square metre and that the above
sum in euros corresponded to the value of the flat.
- The
Government offered to pay the applicant’s widow and son
HRK 7,300 per square metre of the flat in question, which they
saw as corresponding to their estimation of its market value.
- In
view of the parties’ submissions the Court awards the
applicant’s widow and son jointly a sum of EUR 32,634.77, plus
any tax that may be chargeable on that amount to them, in respect of
pecuniary damage.
2. Non-pecuniary damage
- The
applicant’s widow and son also claimed EUR 35,000 in respect of
non-pecuniary damage. They argued that the domestic proceedings for
the annulment of the sale contract in question had caused the
applicant severe stress, resulting in a deterioration of his health
and finally his death.
- The
Court considers that there is no causal link between the damage
claimed and the violation found. It therefore rejects the claim for
non pecuniary damage.
B. Costs and expenses
- The
applicant’s widow and son further claimed HRK 9,638 for the
costs and expenses incurred before the Court and HRK 2,955 for the
costs before the national courts.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his or her costs and expenses only in so far as it
has been shown that these have been actually and necessarily incurred
and are reasonable as to quantum. In the present case, regard being
had to the information in its possession and the above criteria, the
Court considers that the applicant’s widow and son are entitled
to the costs and expenses incurred both before the national courts
and before the Court. The Court considers it reasonable to award them
EUR 1,750 under both heads plus any tax that may be chargeable on
that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds
(a) that
the respondent State is to pay the applicant’s widow and son
jointly, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement:
(i) EUR
32,634.77 (thirty-two thousand six hundred and thirty-four euros and
seventy-seven cents), plus any tax that may be chargeable, in respect
of pecuniary damage;
(ii) EUR
1,750 (one thousand seven hundred and fifty euros), plus any tax that
may be chargeable, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the claim
for just satisfaction.
Done in English, and notified in writing on 9 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
