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FOURTH
SECTION
CASE OF G. v. FINLAND
(Application
no. 33173/05)
JUDGMENT
STRASBOURG
27
January 2009
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 G. v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33173/05) against the
Republic of Finland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Finnish national (“the
applicant”), on 14 September 2005. The President
of the Chamber decided of his own motion that the applicant's
identity should not be disclosed (Rule 47 § 3 of the Rules of
Court).
- The
applicant was represented by Mr Heikki Salo, a lawyer practising in
Helsinki. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
- On
14 January 2008 the
President of the Fourth Section decided to communicate to the
Government the complaint concerning the length of the proceedings. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944.
- The
applicant worked as a judge in a District Court (käräjäoikeus,
tingsrätten) since 1976. Since the 1980s she has suffered
from backache which has prevented her from working long hours and
sometimes made it impossible for her to work. The supervising court,
the Appeal Court (hovioikeus, hovrätten), questioned on
several occasions her ability to continue to work. In 1991 and 1994
the Appeal Court concluded, however, that the applicant's condition
was not serious enough to justify her dismissal.
- In
2000 the issue was again brought up. On 6 June the senior judge of
the District Court informed the Appeal Court about the applicant's
situation. On 19 June the Appeal Court requested the applicant to
submit a medical certificate.
- On
8 September 2000 the applicant submitted a certificate which showed
that she was capable of performing her judicial functions. On
18 September she submitted several other medical certificates to
the court showing her fitness for work. On 16 October the Appeal
Court decided to carry out an inspection of the District Court. The
inspection was carried out on 10 November without the
applicant's knowledge. The head of personnel of the Appeal Court went
to the District Court to interview the applicant's colleagues about
her situation. The colleagues and supervisors were given a
questionnaire which they had to complete in writing. They were
apparently also shown statistics on the court's workload, the
division of work and the applicant's absences.
- On
21 December 2000 the applicant sent the Appeal Court the results
of her medical examinations as well as a further medical opinion
drawn up by her doctor. She requested that her case be decided on the
basis of these materials together with the medical opinions which she
had previously submitted.
- On
3 January 2001 the Appeal Court prepared a report on the inspection
of the District Court carried out on 10 November 2000. According to
that report, the applicant's share of the work had been minimal in
comparison with the other judges' workload. The report concluded that
the medical examinations conducted so far did not give a correct
picture of the applicant's state of health and capacity to work, and
that the conditions justifying a further medical examination under
the Civil Servants Act were therefore fulfilled. On 9 March 2001 the
Appeal Court decided that the case could not be decided on the basis
of the existing materials. It thus requested the applicant to undergo
a thorough and objective medical examination at the State's expense.
- On
22 March 2001 the President of the Appeal Court, the head of
personnel and the applicant's counsel met and decided to give the
applicant an opportunity to express her point of view on the request
for a medical examination. The applicant stated in her reply of 20
April that there were no grounds for making her undergo a further
examination since she had already provided several medical
certificates on her state of health.
- On 4 May 2001 the Appeal Court found that the
applicant's reply did not give cause for changing the court's
decision of 9 March 2001. The court requested a new medical
examination and, in order to avoid any lack of objectivity, sent the
complete file to the doctor responsible for occupational health care.
The doctor contacted the State Treasury (Valtiokonttori,
Statskontoret) in order to ascertain the kind of medical
examination needed to obtain a disability pension. As a result,
neuropsychological examinations were carried out in May and June
2002. They showed that the applicant was fit to work as a judge. Both
the doctor responsible for occupational health care and the State
Treasury concluded, on 30 October 2002 and in January 2003
respectively, that, on the basis of all the medical examinations, the
applicant was fit to work. These conclusions were sent to the Appeal
Court on 5 February 2003.
- On
3 March 2003, on the State Treasury's initiative, a meeting was
called in the District Court in order to discuss possibilities for
improving the applicant's ability to work. The applicant did not
attend the meeting and informed the meeting through her counsel that
any measures to be implemented would require her consent. On 10 March
and 23 April, respectively, the Appeal Court requested the applicant
and the State Treasury to submit in writing the results of all the
various medical examinations. On 25 March 2003 and 4 June,
respectively, both the applicant and the State Treasury refused to
provide this information, basing their refusal on domestic law
provisions regulating the protection of privacy.
- On
17 June 2003 the applicant requested that the administrative
proceedings in the Appeal Court be accelerated. On 27 June the
applicant was summoned to an oral hearing to be held on 26 September.
On 1 and 5 September the applicant's counsel asked the
court to indicate the material that would be used against the
applicant and the issues on which she would be questioned. On 3
September a summary of the case was sent to the applicant. On 16
September the applicant informed the court that she wanted 14
witnesses and experts to be heard under oath at the hearing. On 19
September the plenary court, presided by its president, refused to
hear all the applicant's witnesses. It reminded her that the case was
an administrative one and that it could be decided on the basis of
the written materials alone. Since the case concerned the applicant
personally, she was given the possibility to be heard in person. The
hearing of witnesses was unnecessary as many of them had already
submitted written statements. Moreover, the court was familiar with
the relevant law as well as the circumstances obtaining in the
District Court in question.
- The
applicant complained about the refusal to hear her witnesses to the
Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens
justitieombudsman), who declined to examine her complaint since
the case was still pending before the Appeal Court.
- On
22 September 2003 the applicant sought the disqualification from the
proceedings of the president of the Appeal Court, one of the judges
and the head of personnel. At the oral hearing on 26 September the
plenary court, under the presidency of another judge, noted that it
had already been decided on 19 September that the head of personnel
would not participate in the deliberations on the case. It rejected
the applicant's request for the disqualification of the president and
one of the judges.
- At
the oral hearing on 26 September 2003, the Appeal Court made a short
summary of unanswered issues that it considered relevant, including
the question as to why more extensive examination had not been
carried out of the applicant's fitness for work. The court decided
immediately after the oral hearing to order a more extensive
examination of the applicant's fitness for work. This request was
also directed to the State Treasury. On 15 October the applicant
wrote to the court, maintaining that she had already undergone all
the medical examinations which the occupational health care doctor
and the State Treasury had deemed necessary.
- On
21 October 2003 the court wrote to the State Treasury requesting it
to ensure that the applicant underwent an additional examination. On
13 January 2004 the applicant requested the court to correct its
decision of 26 September 2003, claiming that she had already been
given an additional examination. On 16 January 2004 the court
rejected this request, stating that no such examination had as yet
been carried out of her health seen from the perspective of her
fitness for work and her right to receive a disability pension. On 19
January 2004 the State Treasury informed the court that the applicant
had not applied for rehabilitation and that it could not conduct the
medical examinations without her consent. However, in her letters of
10 and 17 February 2004 to the court, the applicant stated
that, even though she had not applied for rehabilitation, she had
informed the State Treasury on 23 December 2003 that she was
ready to undergo an additional examination.
- On
9 and 10 June 2004 respectively, a specialist and the occupational
health care doctor concluded that the applicant was fit to work as a
judge. On 22 June the applicant requested that the case be decided as
soon as possible. Prior to this, the applicant had on several
occasions asked for the proceedings to be accelerated.
- On
23 August 2004 the Appeal Court found in its decision that since the
late 1980s the applicant had been absent on many occasions because of
chronic backache and, for that reason, her output had been very
modest. There was no doubt that she had become unable to carry out
the duties of a district court judge due to her illness. This overall
assessment was not influenced by the fact that her condition could
not be satisfactorily determined given her failure to undergo
detailed medical examinations on her health. As the applicant had
refused to give up her post, the Appeal Court dismissed her with
immediate effect. The judgment indicated that no appeal was possible.
- The
applicant lodged an appeal and a request for the reopening of the
case with the Supreme Court (korkein oikeus, högsta
domstolen). On 8 September 2004 the court annulled the
Appeal Court's decision in so far as it indicated that no appeal was
possible and set a deadline for the submission of an appeal. The
court found that, according to Article 21 of
the Constitution of Finland, everyone had the right to have
his or her case dealt with appropriately by a legally competent court
of law or other authority, as well as to have a decision pertaining
to his or her rights or obligations reviewed by a court of law or
other independent organ responsible for the administration of
justice. As a decision to dismiss a person necessarily affected that
person's rights and obligations, it followed that there should have
been a possibility to challenge that decision in a court of law. The
fact that no appeal was possible in this kind of case would therefore
be in contradiction with the Constitution.
- On
8 October the applicant submitted her appeal against the Appeal
Court's decision in its entirety. She complained, inter alia,
that the Appeal Court had failed to consider a number of medical
opinions and to call some of her witnesses and that it had based its
decision on interviews with her colleagues which had not been given
under oath.
- On
29 November 2004 the Supreme Court held a preparatory session at
which the applicant requested that several witnesses and experts be
heard. On 3 December the court informed the applicant that it refused
to hear eight of her twelve witnesses and experts since it was not
necessary to hear them. It added that it intended to hear two
witnesses of its own motion. On 16 December the applicant
requested three of her witnesses be heard so as to rebut the evidence
of the court's own witnesses. On 20 December this request was
rejected by the court on the same grounds as those indicated in the
decision of 3 December. The court pointed out that the normal
procedural rules for civil and criminal cases did not apply to her
case since it was an administrative procedure. For this reason the
case could be examined on the basis of the written materials and the
court was responsible for obtaining evidence to the extent necessary
to decide the case.
- On
4 January 2005 the Supreme Court obtained statistical information
from the District Court, which was received by the applicant the
following day. She asked for a postponement of the case on 6 January,
but the court did not respond to this request.
- The
oral hearing took place on 10 and 12 January 2005. On 15 March 2005
the Supreme Court rejected the applicant's appeal. It found, on the
same grounds as the Appeal Court, that the applicant was no longer
fit for work and that this state of affairs was permanent.
- On
27 July 2005 the applicant was granted a disability pension,
backdated to 1 September 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to Article 21 of the Constitution of Finland
(perustuslaki,
grundlagen; Act no. 731/1999),
everyone has the right to have his or her case dealt with
appropriately and without undue delay by a legally competent court of
law or other authority, as well as to have a decision pertaining to
his or her rights or obligations reviewed by a court of law or other
independent organ responsible for the administration of justice.
- Section
46, subsection 2, of the State Civil Servants Act (valtion
virkamieslaki, statstjänstemannalagen; Act no. 750/1994)
provides that a judge shall resign from government service if he or
she is incapable of working due to illness, defect or injury. If the
judge does not resign in such a situation, the court competent to
charge him or her for misconduct in public office shall dismiss him
or her without application. Before dismissal the judge shall be
granted an opportunity to give a statement within a reasonable time
limit.
- According
to section 3 of the Administrative Procedure Act
(hallintomenettelylaki, lag om förvaltningsförfarande;
repealed by the Act No. 434/2003, hallintolaki, förvaltningslag,
which entered into force on 1 January 2004), this Act was
applicable when the courts dealt with administrative issues.
According to section 17 of the same Act, the authorities were
responsible for investigating the case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION CONCERNING LENGTH OF PROCEEDINGS
- The
applicant complained that the total length of the proceedings in her
case had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- As
to the applicability of Article 6, the Government submitted that the
Court had reviewed its case-law in that respect in a recent Grand
Chamber judgment (see Vilho Eskelinen and Others v. Finland
[GC], no. 63235/00, ECHR 2007 ). In that judgment it had been
presumed that Article 6 applied, unless the Government
demonstrated that a civil servant applicant had not had a right of
access to a court under national law and that this exclusion had been
justified under Article 6. The Government pointed out that in the
present case, the applicant had not had, according to an express
provision in national legislation, any right to appeal against the
Appeal Court's decision of 23 August 2004 but that the Supreme
Court had annulled that decision on the basis of Article 21 of the
Constitution on 8 September 2004 and had granted the applicant a
right to appeal. This meant that, according to the Court's
interpretation, Article 6 would be applicable in the present case.
- The
Government, however, maintained that a judge's status and right to
stay in office were unique and could not possibly be equated with
“ordinary labour disputes”, as pointed out by the Court
in the above-mentioned judgment (cited above, § 62). Moreover,
it could be argued that the right of access to a court under Article
21 of the Constitution could have a wider scope than that of Article
6 of the Convention, as had been found by the Supreme Administrative
Court in its recent judgment in case KHO:2008:25. Accordingly,
Article 6 might not have automatically applied to all situations
covered by Article 21 of the Constitution.
- The
applicant agreed that the principles enumerated in the Vilho
Eskelinen and Others v. Finland judgment applied to the present
case.
- The
Court reiterates that, according to its case-law, there can in
principle be no justification for the exclusion from the guarantees
of Article 6 of ordinary labour disputes on the basis of the
special nature of the relationship between the particular civil
servant and the State in question. There will, in effect, be a
presumption that Article 6 applies. It will be for the
respondent Government to demonstrate, first, that a civil-servant
applicant does not have a right of access to a court under national
law and, second, that the exclusion of the rights under Article 6 for
the civil servant is justified (see Vilho Eskelinen and Others v.
Finland [GC], no. 63235/00, § 62, ECHR 2007 ). In
the present case, it is common ground that the applicant had de
facto access to a court at the national level. Accordingly,
Article 6 § 1 is applicable.
- The
Court concludes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
parties disagree as to the date when the proceedings started. The
applicant took the view that the proceedings started on 8 June 2000,
when the letter from the District Court's senior judge about the
applicant's situation was received by the Appeal Court, whereas the
Government submitted that the period to be taken into consideration
began on 19 June 2000 when the applicant was asked to
submit a medical certificate on her health. The Court agrees with the
Government that the period to be taken into consideration began on 19
June 2000, the date on which the Appeal Court took its first decisive
step in the proceedings. It ended on 15 March 2005 when the
Supreme Court rendered a final decision in the case. Consequently,
the proceedings lasted some four years and nine months for two levels
of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). The Court reiterates that special diligence is
necessary in employment disputes (see Ruotolo v. Italy, 27
February 1992, § 17, Series A no. 230 D).
- The
Government maintained that there had been no periods of inactivity,
except from May 2001 until February 2003 when new medical
examinations had been ordered and carried out. The proceedings in the
Appeal Court had been somewhat lengthy but the proceedings in the
Supreme Court had been swift. The case had been quite complex and the
issue at stake had been important to the applicant. Taking into
account the special circumstances of the case and the applicant's
conduct, the Government were of the opinion that the length of the
proceedings had been reasonable.
- The
applicant submitted that the proceedings in the Appeal Court had been
very lengthy and that she had tried to expedite them on several
occasions but she had had no influence over the decisions taken. The
case itself had not been very complex but the applicant had had a
great personal interest in its outcome.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. REMAINDER OF THE APPLICATION
A. Complaints under Article 6 of the Convention, taken alone or in
conjunction with Articles 13 and 14 of the Convention
- The
applicant complained that the proceedings in the Appeal Court had
been unfair, as the court had based its judgment on allegedly false
and unlawful evidence. She also claimed that she had not been given
an opportunity to see the investigation materials, which had been
used against her in the proceedings, nor had she been able to ask for
an additional investigation. She further complained about unfairness
in the proceedings in the Supreme Court, maintaining that the
oral hearing had been too long and unbalanced to her disadvantage,
and that the court had ignored the medical opinions given by several
doctors.
- The
Court notes that the applicant had several opportunities during the
Appeal Court proceedings to comment on the investigation materials,
both at an oral hearing and in writing. She also submitted her own
investigation materials to the Appeal Court. Moreover, the oral
hearing in the Supreme Court took place on 10 and 12 January 2005.
Nothing in the case file indicates that it was conducted in an unfair
manner. As to the assessment of evidence, the Court reiterates that,
while Article 6 of the Convention guarantees the right to a fair
hearing, it does not lay down any rules on the admissibility of
evidence or the way it should be assessed, which are therefore
primarily matters for regulation by national law and the national
courts (see Schenk v. Switzerland, 12 July 1988,
§§ 45-46, Series A no. 140; García
Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28). The
Supreme Court heard four of the applicant's witnesses and two
witnesses of its own in the oral hearing. It does not appear that the
court ignored any of the medical opinions but only evaluated them
differently from the applicant.
- The
applicant also complained that the Appeal Court had not been
impartial as the president of the court had acted both as
investigator and judge in her case. For the same reason, it was
alleged that another judge who had been involved in the investigation
had not been impartial.
- The
Court observes that the Appeal Court functioned in this case as an
administrative body making the initial administrative decision and
that it applied the Administrative Procedure Act to the case. Since
in this case it was not a question of judicial proceedings but of
internal administrative procedures, the Court considers that the duty
to investigate and decide falls necessarily within the same authority
and the question of impartiality does not arise.
- The
applicant further complained under Articles 6 § 1 and 13 of the
Convention that she had had no right to appeal against the Appeal
Court's decision.
- The
Court observes that the Supreme Court annulled the decision of
the Appeal Court in so far as it stated that no appeal was possible.
The applicant filed an appeal with the Supreme Court on 8 October
2004 and that court gave its decision on 15 March 2005. Even assuming
that it was a procedural mistake to state in the Appeal Court's
decision that no appeal was possible, the Court finds that this
mistake was corrected when the Supreme Court annulled this part of
the decision and allowed the appeal. No separate admissibility issue
arises therefore under Article 13.
- Lastly,
the applicant complained under Articles 6 § 3 (d) and 14 of the
Convention that the proceedings had been unfair as none of her
witnesses was heard at the oral hearing in the Appeal Court and only
some of them were heard in the Supreme Court.
- Even
assuming that Article 6 § 3 (d) could give guidance also for
civil and administrative cases from the standpoint of the general
Article 6 § 1 requirement of fairness, the Court
points out that this Article does not give the applicant an absolute
right to have all her witnesses heard (see for example M.A. v.
Austria, no. 23228/94, 11 May 1994). Bearing in mind that the
Supreme Court was the only judicial body in the present case and that
several of the applicant's witnesses were heard and others not in
accordance with the Supreme Court's perception of relevance, it does
not appear that the applicant's rights were violated in this respect.
Consequently, no admissibility issue arises under Article 14 either.
- In
conclusion, the Court finds that the matters complained of do not
disclose any appearance of a violation of the applicant's rights set
out in Articles 6, 13 and 14 of the Convention. It follows that these
complaints must be rejected as being manifestly ill-founded within
the meaning of Article 35 §§ 3 and 4 of the Convention.
B. Complaints under Article 8 of the Convention
- The
applicant complained that her private life had been violated as a
result of the unfairness of the proceedings, that the Appeal Court
had illegally obtained medical information about her and had
communicated the results of her medical examination to her colleagues
for comments and that both the Appeal Court and the Supreme Court had
published their decisions, which contained information on her health,
in a manner that allowed the applicant to be identified.
- As
concerns the alleged violation of the applicant's right to respect
for her private life as a result of the allegedly unfair proceedings,
the Court notes that, on the facts of the case, no arguable issue
arises under Article 8. As far as the medical information is
concerned, the Court observes that there is no indication in the case
file that the Appeal Court illegally obtained medical information
about the applicant or communicated any of this information to her
colleagues. As concerns the publication of the decisions, the Court
notes that there is no indication in the case file that the Appeal
Court decision was published. As the Supreme Court decision was a
precedent decision, it was published on the Internet but without
mentioning the applicant's name. Even assuming that the Appeal Court
decision was published or that the applicant could be identified from
the Supreme Court decision, the Court notes that the applicant did
not complain about this issue to the domestic authorities.
- The
Court finds that these complaints are thus either manifestly
ill-founded or inadmissible for non-exhaustion of the domestic
remedies and must be rejected under Article 35 §§ 1, 3 and
4 of the Convention.
C. Complaints under Article 14 of the Convention
- The
applicant complained that she had been discriminated against due to
her poor health and due to the fact that she had been dismissed
without being granted a disability pension even though the right to
such a pension was guaranteed by law to all civil servants who had
been dismissed for health reasons.
- The
Court does not find any substantiation of these complaints. In any
event, on 27 July 2005 the applicant was granted a disability pension
with retroactive effect from 1 September 2004. The Court finds that
the matters complained of do not disclose any appearance of a
violation of the applicant's rights set out in Article 14 of the
Convention. It follows that these complaints must be rejected as
being manifestly ill-founded within the meaning of Article 35 §§
3 and 4 of the Convention.
D. Complaints under Article 1 of Protocol No. 1 to the Convention
- The
applicant complained that the lengthy proceedings had violated her
right to property as she had been obliged to pay the costs of her
defence.
- The
Court finds that this was a normal requirement attaching to the
conduct and presentation of the applicant's case. There is no
indication that the decisions of the domestic courts interfered with
the applicant's property rights contrary to Article 1 of Protocol No.
1 to the Convention.
- It
follows that these complaints must be rejected as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 101,849.98 euros (EUR) in respect of pecuniary and
EUR 15,000 in respect of non-pecuniary damage.
- The
Government contested the claims, considering that there was no causal
link between the alleged violation of Article 6 and the pecuniary
damage sustained. As to the non-pecuniary damage, the Government
considered that the applicant's claim was excessive as to quantum
and that the award should not exceed EUR 2,000.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 4,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 29,634.31 for the costs and expenses
incurred before the domestic courts and EUR 4,000 for those incurred
before the Court.
- The
Government contested these claims. The Government maintained that the
costs and expenses in the domestic proceedings did not relate to the
length of proceedings and that no compensation should be paid for the
applicant's own time and work. As concerns the costs and expenses
incurred before the Court, the Government maintained that, as no
invoices had been submitted to the Court, no award should be made in
this respect. In any event, the applicant's claims were excessive as
to quantum and any award under this head should not exceed
EUR 1,000 (inclusive of value-added tax).
- The
Court reiterates that an award under this head may be made only in so
far as the costs and expenses were actually and necessarily incurred
in order to avoid, or obtain redress for, the violation found (see,
among other authorities, Hertel v. Switzerland, 25 August
1998, § 63, Reports of Judgments and Decisions
1998 VI). In the present case, regard being had to the
information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings.
As to the costs and expenses incurred before the Court, the Court
notes that no documentation, as required by Rule 60 of the Rules of
Court, has been submitted within the time allowed. This claim must
therefore also be rejected.
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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
