BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF AHO v. FINLAND
(Application
no. 2511/02)
JUDGMENT
STRASBOURG
16
October 2007
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 Aho v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 25 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2511/02) 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 two Finnish nationals, Mrs Taimi Aho and
Mr Asko Aho (“the applicants”), on 4 December
2001.
- The
applicants, the first of whom had been granted legal aid, were
represented by Mr H. 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.
- The
applicants alleged various breaches of the right to a fair trial
within a reasonable time.
- On
4 July 2005 the President of the Fourth Section of the Court decided
to give notice of the application to the Government. Under the
provisions of Article 29 § 3 of the Convention, it was decided
to examine the merits of the application at the same time as its
admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1942 and 1960 respectively and live in
Tampere.
- The
first applicant’s husband and the second applicant’s
father, Mr Pentti Aho, died of cancer on 14 May 1992. He had
been in receipt of sickness pension since 1981 and in 1986 he had
been diagnosed with cancer of the larynx. He had been smoking
cigarettes from 1941 to 1986.
A. The compensation claim against the tobacco companies
- On
6 May 1988 Mr Pentti Aho instituted proceedings against two
companies, British American Tobacco Nordic Oy (former Suomen Tupakka
Oy) and Oy Rettig Ab (hereinafter “the tobacco companies”),
claiming compensation for the cancer caused by smoking cigarettes.
Essentially he based the claim on false and illegal marketing and on
violations of a ban on selling harmful products.
- On
16 June 1988 the Helsinki District Court (raastuvanoikeus,
rådstuvurätten) held its first hearing. Upon the
parties’ request the case was adjourned until 6 October 1988.
Subsequently the case was adjourned on several occasions. The
District Court received oral evidence from about 30 witnesses,
many of whom were medical specialists, including Professor X who
claimed that medical science had not been able to prove that there
was a causal link between tobacco smoking and cancer. At the
15th hearing on 28 January 1992, the plaintiff
requested a postponement pending the outcome of a criminal case
before the Espoo District Court, which was to be examined in April
1992. The request was, however, refused.
- On
6 February 1992 the Helsinki District Court rejected the action. As
to the plaintiff’s request for a postponement, it found that
the action was based on facts different from those presented in the
criminal case. Having regard also to the fact that the compensation
claim had been pending for several years, the District Court found
that it should be decided without further delay. Noting that the
selling of tobacco was not prohibited, it found that the sale of the
product itself did not give rise to liability for damages. Nor did
the District Court find that the marketing of tobacco products,
having regard to the plaintiff’s awareness of tobacco-related
health issues, could give rise to any liability for damages. It
ordered the parties to bear their own legal costs.
- On
6 March 1992 the plaintiff lodged his appeal. He died on 14 May 1992.
- On
26 February 1993 the estate, consisting of the applicants, continued
the claim on his behalf. The applicants also renewed their request
for the examination of the appeal to be postponed until the Espoo
District Court had given judgment in the criminal proceedings. The
Helsinki Court of Appeal (hovioikeus, hovrätten) acceded
to the request. It resumed the examination of the case on 21 July
1997.
- The
compensation claim, the above-mentioned criminal case and another
criminal case concerning perjury were examined jointly by the Court
of Appeal.
- By
its judgment (no. 3967) of 31 December 1998 the Court of Appeal,
without holding a hearing, rejected the appeal. However, it did not
endorse the District Court’s reasoning. It found that the
tobacco companies had sought to mislead customers by failing to
inform them of the possible detrimental effects of tobacco on health.
Notwithstanding that this did not as such result in a right to
damages for the customer, it affected the assessment of whether the
tobacco companies had been negligent. In the present case the Court
of Appeal found that there had been negligence. However, it did not
find a causal link between smoking and the damage alleged. The Court
of Appeal ordered the parties to bear their own legal costs.
- The
first applicant but not the second sought leave to appeal and
requested an oral hearing. On 23 June 1999 the Supreme Court (korkein
oikeus, högsta domstolen) granted her leave to appeal. She
and the tobacco companies each filed further observations in October,
November and December 1999 respectively.
- By
its judgment (no. 1196) of 7 June 2001 the Supreme Court, without
holding a hearing, rejected the appeal. Although the Supreme Court
found that there was a causal link between smoking and the damage
alleged, it did not find a causal link between the damage and the
tobacco companies’ marketing activity. It considered that
during his 45 years of smoking cigarettes Mr Pentti Aho had
known that tobacco posed a threat to his health. In these
circumstances it was not credible that he had continued to smoke,
trusting that it was not dangerous owing to the tobacco companies’
marketing of their product. Thus, he had knowingly put himself at
risk. Accordingly, the damage did not result from the marketing of
tobacco. The Supreme Court ordered the parties to bear their own
legal costs.
B. The private prosecution against the management of
the tobacco companies
- On
27 January 1992 Mr Pentti Aho instituted a private prosecution
against, among others, the directors of the tobacco companies. He
brought charges against them for misleading consumers, a marketing
offence, endangering the life and health of others and aggravated
assault. He relied on an opinion by the Consumer Ombudsman according
to which the directors of the tobacco companies had engaged in
illegal marketing to which the plaintiff as a customer had been
subject from 1941 to 1986.
- The
Espoo District Court held its first hearing on 22 April 1992. It
decided to examine jointly the charges brought by Mr Pentti Aho and
three other smokers also diagnosed with cancer. The public prosecutor
did not join the private prosecutions. Following the death of Mr
Pentti Aho, his estate continued the private prosecution. On 25
September 1992 the estate withdrew part of the charges, maintaining
the charge concerning aggravated assault. At the third hearing on 5
February 1993 the estate, among others, requested a further
postponement with a view to substantiating the charges and calling
witnesses. On 2 April 1993 the District Court concluded that the
proposed witnesses would not shed any light on the question as to
whether the defendants had caused Mr Pentti Aho’s cancer and,
if so, whether they had done so intentionally. As the case turned on
whether the defendants’ conduct met the definition of
aggravated assault, which was a question of law and not of fact, it
rejected the request for a postponement.
- In
its judgment of the same day the District Court rejected the charges,
finding that the causal link between the damage and the defendants’
conduct, if any, had been broken owing to the fact that Mr Pentti
Aho had put himself at risk. It ordered the estate to reimburse the
defendants’ legal costs in the amount of 30,000 Finnish marks
(FIM; 5,046 euros (EUR)).
A
journalist covering the trial wrote the following:
“The court rejected the criminal charges in the
tobacco case... . The sudden closure of the case was surprising. ...
Both counsel for the plaintiffs and for the defence were totally
amazed that the case was closed already on Friday [2 April 1993]. The
plaintiffs had requested a postponement with a view to hearing
witnesses at the next hearing.” (Helsingin Sanomat of 3
April 1993)
- On
30 April 1993 the estate appealed, requesting that the case be
remitted owing to the District Court’s refusal to allow the
hearing of witnesses. In the estate’s submission, at the
beginning of the trial the District Court judge had allegedly said to
counsel that he was going to severely restrict the estate’s
right to present evidence. Subsequently, the judge denied the estate
the possibility to have witnesses heard during the four hearings. At
the fourth hearing, the judge suddenly decided to close the case.
In
the alternative, the estate requested a hearing in the Helsinki Court
of Appeal. The estate filed further observations on 12 April and 13
May 1994.
The
present case, the above action for compensation and the perjury
charges mentioned below were examined jointly by the Helsinki Court
of Appeal.
- By
its judgment (no. 3961) of 31 December 1998 the Court of Appeal,
having noted the finding in the compensation proceedings that no
causal link between smoking and the damage alleged had been
established, rejected the appeal. It ordered the estate to reimburse
the defendants’ legal costs in the sum of FIM 2,000 (EUR 336).
- The
estate sought leave to appeal. On 4 May 2000 the Supreme Court
granted the first applicant cost-free counsel retroactively from
September 1992.
- By
its decision no. 1308 of 20 June 2001 the Supreme Court refused leave
to appeal. It appears from the decision that the Supreme Court had
requested an explanation from the District Court judge regarding the
alleged procedural shortcomings.
C. The perjury proceedings
- Following
the testimony given by Professor X in the compensation proceedings
according to which medical science had not been able to prove that
there was a causal link between tobacco smoking and cancer, the
National Board of Medico-legal Affairs, on 7 May 1993, requested a
police investigation. A pre-trial investigation was carried out into
the matter, following which the public prosecutor, on 15 March 1994,
brought charges against Professor X for perjury.
- The
Helsinki District Court held its first hearing on 29 March 1994. The
applicants joined the prosecution. The first applicant was granted
partly cost-free counsel which covered her costs exceeding FIM 15,000
(EUR 2,523).
- Subsequently,
it turned out that Professor X had received some FIM 280,000
(EUR 47,093) from British American Tobacco Nordic Oy in 1991 and 1992
and that he had not declared the income in his tax returns.
Therefore, the public prosecutor on 2 or 4 April 1995 brought charges
against him concerning two counts of aggravated tax fraud. The
District Court ordered a joint examination of the charges.
- On
10 September 1996, during the 18th session, the public
prosecutor informed the court that he wished to withdraw the perjury
charges. The estate maintained the charges. The District Court held
altogether 22 hearings in the case.
- On
19 March 1997 the District Court rejected all the charges and ordered
the applicants to reimburse Professor X’s legal costs in the
sum of FIM 25,000 (EUR 4,205). The judgment was not unanimous as two
of the lay judges in their dissenting opinions found Professor X
guilty of perjury and would have imposed a suspended term of
imprisonment.
- The
public prosecutor and the Tax Administration appealed to the Helsinki
Court of Appeal as far as the tax fraud charges were concerned. The
estate appealed as far as the perjury charges were concerned.
- The
present case, the action for compensation and the criminal case
mentioned above were examined jointly by the Court of Appeal. On
19 May 1998 it held a hearing as far as the tax fraud
charges were concerned.
- By
its judgment (no. 3962) of 31 December 1998 the Court of Appeal
upheld the District Court’s judgment in so far as it had
rejected the perjury charges. However, it convicted Professor X of
two counts of aggravated tax fraud and imposed a fine. It increased
the applicants’ liability for X’s legal costs pertaining
to the District Court proceedings to FIM 88,816 (EUR 14,938). It
also ordered the applicants to reimburse X’s costs in the
written procedure in the Court of Appeal in the amount of FIM 235,288
(EUR 39,573). Further, it imposed on the applicants’
counsel, A. and S., joint liability for these costs totalling FIM
324,104 (EUR 54,510).
- The
applicants, A. and S. sought leave to appeal. On 23 June 1999 A. and
S. were granted leave. The applicants’ request was granted
during the further examination of the case in so far as they had been
ordered to reimburse the legal costs of Professor X.
- By
its judgment (no. 1307) of 20 June 2001 the Supreme Court overturned
the Court of Appeal’s judgment in so far as A. and S. had been
ordered to reimburse Professor X’s legal costs. It also reduced
the applicants’ liability for those costs to FIM 25,000
pertaining to the District Court proceedings and FIM 145,000 (EUR
24,387) pertaining to the Court of Appeal’s written procedure.
The Supreme Court was not unanimous as Judges Y and Z would have
upheld the Court of Appeal’s judgment.
- Following
the judgment, on 26 June 2001, A. petitioned the Chancellor of
Justice, alleging partiality on the part of Judge Y owing to the fact
that A. had strongly criticised Judge Y with regard to a criminal
matter in 1997.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
first applicant complained about the length of the three sets of
proceedings. The second applicant complained about the length of the
second (private prosecution against the management of the tobacco
companies) and third (perjury proceedings) sets of proceedings.
As
regards the second set of proceedings, both applicants also
complained that the Court of Appeal had failed to give reasons, in
particular concerning the allegations that the proceedings in the
Espoo District Court had been unfair. They further complained,
alleging objective partiality, that the District Court had not
allowed any witnesses to be heard or further documentary evidence to
be submitted. It had also refused to receive further substantiation
of the charges. It had refused to do so, although the other parties
had not had any objections to the applicants’ requests.
Article
6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
As
regards the second set of proceedings the applicants also relied on
Article 6 § 3(d), which reads:
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him.”
A. The Government’s preliminary objections and
admissibility
- The
Government argued that there was no connection between the two sets
of criminal proceedings, during which the applicants had not
presented any claims for damages, and the civil proceedings and
therefore Article 6 § 1 was not applicable to the two sets of
criminal proceedings in this case. The Government considered that
Article 6 was applicable to the first set of proceedings.
- The
Government also argued that the domestic proceedings had become
pending before the entry into force of the Convention with respect to
Finland and therefore only the period starting from the date of entry
into force could be taken into account as regards the length of the
proceedings.
- The
applicants contested the Government’s view as to the
non-applicability of Article 6, arguing that the fact that the Court
of Appeal had decided to examine the three cases jointly showed that
there was an essential connection between them. This substantial
interconnection of the three cases made Article 6 applicable to all
of them. The applicants argued that they had intended to seek
financial reparation in the second set of proceedings but that they
had been prevented from doing so by the District Court’s sudden
closure of the case.
- As
to the Court’s competence ratione temporis, the
applicants argued that the period which had lapsed before the entry
into force of the Convention must be taken into account as background
information.
- The
Court agrees with the parties that Article 6 is applicable under its
civil limb to the first set of proceedings. The Court notes that this
part of the application, which only concerns the first applicant, 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.
- As
to the second and third sets of proceedings, the Court notes the
following. The applicants were not the accused but the injured party.
Thus, the criminal limb of Article 6 § 1 does not apply. Article
6 § 1 under its “civil head” applies only to
proceedings concerning the “determination” of a “civil
right” which can be said, at least on arguable grounds, to be
recognised under domestic law (see among other authorities Acquaviva
v. France, judgment of 21 November 1995, Series A no. 333, p. 14,
§ 46). The Convention does not confer any right to “private
revenge” or to an actio popularis. Thus, the right to
have third parties prosecuted or sentenced for a criminal offence
cannot be asserted independently: it must be indissociable from the
victim’s exercise of a right to bring civil proceedings in
domestic law, even if only to secure symbolic reparation or to
protect a civil right such as the right to a “good reputation”
(see, inter alia, Perez v. France [GC], no. 47287/99,
§ 70, ECHR 2004 I).
- The
Court notes that Mr Pentti Aho instituted and, following his death,
the applicants maintained a private prosecution against the directors
of the tobacco companies among others and that the applicants joined
the prosecution against Professor X, brought by the public
prosecutor. At no stage of the proceedings did any of the
complainants put forward claims against the accused persons for the
damage caused by the offences alleged. Indeed, they sought only their
conviction. As to the applicants’ argument that they intended
to seek financial reparation in the second set of proceedings but
that they were prevented from doing by the District Court’s
sudden closure of the case, the Court does not find any force in this
argument since it was not put forward in the appellate courts. The
Court concludes that the applicants have not shown that any of their
civil rights were asserted in either of the two sets of proceedings
(see Perez v. France [GC], cited above).
- Accordingly,
Article 6 of the Convention is not applicable to the second and the
third sets of proceedings in the present case. It follows that this
part of the application is incompatible ratione materiae with
the provisions of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
- As
to its competence ratione temporis as regards the length of
the first set of proceedings, the Court observes that since the
Convention entered into force with respect to Finland only on 10 May
1990, it must limit its examination to whether the facts occurring
after that date disclose a breach of the Convention. Events prior to
10 May 1990 will therefore be taken into account merely as a
background to the issues before the Court (see, e.g., Hokkanen v.
Finland, judgment of 23 September 1994, Series A no. 299 A,
p. 19, § 53). Having regard to the Court’s competence
ratione temporis, the period to be taken into consideration as
regards the first set of proceedings began on 10 May 1990 and ended
on 7 June 2001 when the Supreme Court gave judgment. The period
of relevance to the assessment of whether the length of the
proceedings was “reasonable” thus amounts to eleven years
and one month.
B. Merits
- On
the date of entry into force of the Convention with respect to
Finland, the compensation claim had been pending before the District
Court for two years. The court gave judgment one year and some nine
months later. It thus took it three years and eight months to examine
the claim. The Court of Appeal gave judgment six years and some
eleven months later and the Supreme Court a further two years and
some five months later.
- 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 (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Government have pointed out that the case was complex and the case
file extensive. The nature of the action was new to the Finnish
courts at the time of its institution and it involved difficult
questions of law and facts, including complicated medical issues. The
conduct of the plaintiff (initially Mr Pentti Aho and
subsequently the first applicant) prolonged the proceedings; the
repetitive requests for adjournments, the presentation of extensive
written submissions in the hearings and the request that the Court of
Appeal await the District Court’s judgment in the second set of
proceedings delayed the trial. Also the joint examination of this
case and the second and third sets of proceedings in the Court of
Appeal prolonged the trial. The District Court and the Supreme Court
examined the case as expeditiously as possible. While it was true
that the Court of Appeal proceedings had been somewhat lengthy, this
had been due to its decision to examine the three cases jointly.
- The
first applicant emphasised that the initial plaintiff, her husband,
had been terminally ill and had died during the proceedings. She
contested the Government’s argument that she had delayed the
proceedings by requesting a joint examination. In fact, it was the
Court of Appeal which decided to examine the cases jointly of its own
motion.
- 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 Pélissier and Sassi, cited above).
- Having
regard to its case-law on the subject, the Court considers that
notwithstanding the undoubted complexity of the case the length of
the proceedings was excessive and failed to meet the “reasonable
time” requirement.
- There
has therefore been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- As
regards the compensation claim against the tobacco companies, the
first applicant complained under Articles 3 and 6 § 1 of the
Convention that the excessive length of the proceedings had
constituted inhuman and degrading treatment having regard to the fact
that the original plaintiff, Mr Pentti Aho, had already been
diagnosed with cancer when they began. In her separate submission of
11 January 2002 the first applicant complained, under Article 6 §
1 alleging partiality, that the Supreme Court judge, Judge Y, had
taken part in the decision-making although the applicant’s
counsel, A., had strongly criticised her in relation to another case.
She also appeared to complain that the President of the Supreme
Court, who had taken part in the public debate and thus had been
aware of Judge Y’s alleged partiality, had not prevented her
from sitting in the case.
- The
Court has examined above the length complaint under Article 6 and it
finds that it does not raise any issue under Article 3 of the
Convention. It follows that this aspect of the complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention. As
to the complaints lodged on 11 January 2002, the Court notes that the
final domestic decision for the purposes of Article 35 § 1 of
the Convention was given on 7 June 2001 which is more than six months
before these complaints were raised. It follows that they have been
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the
Convention.
- As
regards the private prosecution against the management of the tobacco
companies, the applicants complained, under Article 2, that the
criminal justice system had failed to prosecute and to convict the
perpetrators, thereby violating Mr Pentti Aho’s right to life.
They also complained, under Article 6 § 1, that the Supreme
Court had failed to give reasons when refusing leave to appeal.
Further, Judge Y, who had been strongly criticised by counsel A. in
relation to another case, took part in the decision-making. Moreover,
ordering them to pay the other parties’ legal costs and the
fact that it took the Court of Appeal six years to examine and partly
grant her application for cost-free counsel rendered the trial
unfair. They also relied on Article 6 § 3(d). They furthermore
complained, under Article 13, that they had been denied justice on
the above-mentioned grounds. Lastly, they complained, under Article
3, that the lengthy proceedings, having regard in particular to Mr
Pentti Aho’s cancer, had amounted to inhuman and degrading
treatment.
- The
Court notes that the complaints made under Article 6 are incompatible
ratione materiae (see paragraph 42 above). As to the remaining
complaints concerning these proceedings, the Court finds no
indication of any violations in the particular circumstances of this
case. It follows that these complaints must be rejected in accordance
with Article 35 §§ 3 and 4 of the
Convention.
- As
regards the perjury proceedings, the applicants complained, under
Article 6 § 1, that the courts’ reasoning was insufficient
and, alleging partiality, that the Supreme Court judge, Judge Y, had
sat in the case although counsel A. had criticised her in public in
connection with the case against her, in which, moreover, she had
been represented by the same law firm that represented Professor X in
the perjury proceedings. Lastly, the applicants complained, under
Articles 3 and 6 taken together, that automatically ordering them,
the losing party, to reimburse the defendant’s costs amounting
to the equivalent of EUR 37,338 was unreasonable and inflicted pain
and anguish on them, having regard to the fact that they had lost
their husband and father respectively owing to cancer resulting from
tobacco smoking. They also referred to their weak financial position,
the first applicant being a pensioner and the second applicant being
unemployed.
- The
Court notes once again that the complaints made under Article 6 are
incompatible ratione materiae (see paragraph 42 above). As to
the complaint under Article 3, the Court finds no indication of any
violation. It follows that these complaints must be rejected in
accordance with 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
- Under
the head of pecuniary damage the applicants claimed 42,655.73 euros
(EUR) in respect of legal costs that they had been ordered to
reimburse in the second and the third sets of proceedings. Under the
head of non-pecuniary damage they claimed EUR 10,000 each for anguish
and distress.
- The
Government contested the first-mentioned claim, considering that
there was no justification for making any award under this head. The
claim for non-pecuniary damage was excessive as to quantum and
any award to the applicants together should not exceed a total amount
of 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 first applicant EUR 8,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed EUR 11,648.70 (inclusive of value-added tax) for
the costs of counsel and expenses incurred before the domestic courts
and EUR 6,750 (inclusive of value-added tax) for those incurred
before the Court.
- The
Government considered that the costs in the domestic proceedings
should not be reimbursed. They also pointed out that the Court had
invited observations only in respect of part of the application and
that the costs should be reduced accordingly. The award should not
exceed EUR 3,000 (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,
judgment of 25 August 1998, Reports 1998-VI, p. 2334, §
63). Therefore, the Court rejects the claim for costs and expenses in
the domestic proceedings. The Court notes that the application to the
Court was examined under the joint procedure provided for under
Article 29 § 3 of the Convention, that the application was only
partly successful and that the costs and expenses before it have not
been fully substantiated (Rule 60 of the Rules of Court). Taking into
account all the circumstances and having regard to the amount
received by way of legal aid from the Council of Europe, the Court
awards the first applicant EUR 2,150 (inclusive of value-added
tax).
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 length of
the first set of proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 of the Convention on account of the length of the first set of
proceedings;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 8,000 (eight thousand euros) in respect of non-pecuniary
damage and EUR 2,150 (two thousand one hundred and fifty euros)
in respect of costs and expenses, plus any tax that may be
chargeable;
(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 the remainder of the claim for just
satisfaction.
Done in English, and notified in writing on 16 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
