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THIRD
SECTION
CASE OF GEERINGS v. THE NETHERLANDS
(Application
no. 30810/03)
JUDGMENT
(Just
Satisfaction)
STRASBOURG
14
February 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 Geerings v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Boštjan
M. Zupančič,
President,
Corneliu
Bîrsan,
Elisabet
Fura-Sandström,
Alvina
Gyulumyan,
Egbert
Myjer,
David
Thór Björgvinsson,
Isabelle
Berro-Lefèvre,
judges,
and Santiago Quesada, Section
Registrar,
Having
deliberated in private on 24 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30810/03) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) on 23 September 2003 by a
Netherlands national, Mr Gerardus Antonius Marinus Geerings
(“the applicant”).
- In
a judgment delivered on 1 March 2007 (“the principal
judgment”), the Court held that there had been a violation of
Article 6 § 2 of the Convention in that a confiscation
order given on 30 March 2001 amounted to a determination of the
applicant's guilt without the applicant having been “found
guilty according to law” in so far as it related to assets
which were not known to have been in the applicant's possession and
to charges of which the applicant had actually been acquitted.
- Under
Article 41 of the Convention the applicant sought the following by
way of just satisfaction: in respect of pecuniary damage, a sum of
money corresponding to the sums paid and payable under the
confiscation order which the Court had found to be in violation of
his rights under the Convention; in respect of non-pecuniary damage,
10,000 euros (EUR); plus reimbursement of his 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 (§ 59 and point 3 of the
operative provisions). The three-month time-limit was later extended
by the President to enable proceedings relevant to the issues
remaining before the Court to be pursued to a conclusion before a
domestic court.
- The
applicant and the Government each filed observations.
- Appended
to the applicant's observations was a copy of a decision given on 27
September 2007 by the Court of Appeal (gerechtshof) of
's Hertogenbosch in which that court, in proceedings introduced
by the Advocate General (advocaat-generaal), reduced the
amount of the confiscation order of 30 March 2001 to EUR 6,257.18. In
view of that decision the applicant withdrew his claim in respect of
pecuniary damage.
- The
Government, in their observations, undertook to repay to the
applicant any sum paid in excess of the above amount of EUR 6,257.18,
in compliance with the decision of the Court of Appeal.
THE FACTS
- On 23 October 2003 the Legal Aid Council (Raad
voor Rechtsbijstand) made a conditional
grant of legal aid in respect of the proceedings before the Court. It
is in the following terms:
“The grant of legal aid is conditional. The [Legal
Aid Council] will not make any final grant of legal aid if it appears
after the termination of legal asistance that [the applicant's]
financial means are such that they exceed the limits set by and
pursuant to [the Legal Aid Act (Wet op de rechtsbijstand)] or
the cost of legal assistance is reimbursed by a third party.”
- Section
12 of the Legal Aid Act, as relevant to the questions remaining
before the Court, provides:
“...
2. No legal aid shall be provided if:
...
f. the legal interest at issue is
placed before an international body entrusted with jurisdictional
tasks by a treaty (een bij verdrag met rechtspraak belast
internationaal college) or a comparable international body and
that body itself provides a claim in respect of legal assistance (in
een aanspraak op vergoeding van rechtsbijstand voorziet); ...”
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
- Under
this head it only remains for the Court to rule on the applicant's
claims in respect of non-pecuniary damage, the matter of pecuniary
damage now being resolved.
- The
applicant claimed EUR 10,000 in respect of non-pecuniary damage. The
obligation to pay instalments under the confiscation order had made
it very difficult for him to start a new life and he and his family
had suffered as a result.
- The
Government stated that the applicant had in no way been prevented
from working and making a living. In their submission, the Court's
judgment offered sufficient satisfaction. In the alternative, they
argued that the sum claimed was excessive.
- The
Court considers that the applicant has suffered non-pecuniary damage
that cannot be made good solely by the finding of a violation of his
rights under the Convention. A monetary award is therefore in order.
- Making
its assessment on an equitable basis, the Court awards the applicant
EUR 1,000, plus any tax that may be chargeable on that amount.
B. Costs and expenses
1. Domestic proceedings prior to the application to the
Court
- The
applicant submitted an unspecified bill in an amount of EUR 3,675
plus value-added tax (VAT) for legal assistance and office expenses
relating to the proceedings before the Netherlands Supreme Court
(Hoge Raad).
- The
Government argued that the applicant had received legal aid from the
domestic authorities for these proceedings.
- Rule
60 of the Rules of Court, in relevant part, provides as follows:
“1. An applicant who wishes to obtain
an award of just satisfaction under Article 41 of the Convention in
the event of the Court finding a violation of his or her Convention
rights must make a specific claim to that effect.
2. The applicant must submit itemised
particulars of all claims, together with any relevant supporting
documents, within the time-limit fixed for the submission of the
applicant's observations on the merits unless the President of the
Chamber directs otherwise.
3. If the applicant fails to comply with the
requirements set out in the preceding paragraphs the Chamber may
reject the claims in whole or in part. ...”
- The
Court notes that the applicant has failed to submit itemised
particulars within the time-limit fixed for that purpose. Having
regard to Rule 60 § 3, the Court therefore dismisses the
applicant's claim in respect of costs and expenses incurred in the
domestic proceedings.
2. Proceedings before the Court
- The
applicant submitted the following claims in respect of costs and
expenses incurred in the proceedings in Strasbourg:
(a) For
assistance rendered at the merits stage of the proceedings by
Ms Spronken, his authorised representative before the Court, a
detailed fee note in an amount EUR 5,828.33, plus VAT, for a total of
twenty-two hours and twenty-five minutes' work at EUR 260 per hour.
This covered the preparation and introduction of the application, the
preparation and submission of the applicant's observations, and
correspondence until the beginning of December 2005;
(b) For
assistance rendered at the merits stage by Mr Lina, who had been the
applicant's counsel before the Supreme Court, an unspecified fee note
in an amount of EUR 2,500 plus EUR 125 for office expenses, not
including VAT;
(c) For
the assistance rendered by Ms Spronken after the beginning of
December 2005, a detailed fee note in an amount of EUR 1,933.75 for
seven hours and five minutes' work at EUR 260 per hour plus 5 % for
office expenses, not including VAT. This covered correspondence with
the applicant and with Mr Lina from December 2005 onwards and the
just-satisfaction proceedings.
- The
Government drew the Court's attention to their award of legal aid
intended to cover the Strasbourg proceedings. They also referred to
their letter dated 3 February 2004 in the case of Nakach v. the
Netherlands, (no. 5379/02, 30 June 2005) and to Visser v.
the Netherlands (no. 26668/95, § 59, 14 February
2002).
- The
Government's letter of 3 February 2004 in the Nakach case is
not in the file of the present case. It would run counter to
principles governing judicial proceedings for the Court to take
cognisance of a document submitted by one party of which the other
has no knowledge.
- The
next matter to consider is the Government's argument that the
applicant enjoyed legal aid under domestic legislation and is
therefore not entitled to any award from this Court.
- In
Visser v. the Netherlands the Court denied the applicant's
claims in respect of costs and expenses incurred at the domestic
level, since the applicant either had or could have obtained
State-financed legal aid to an adequate amount. The Court has already
declined on different grounds to make an award in respect of the
costs and expenses claimed in relation to the domestic proceedings.
The Visser precedent is therefore of no relevance.
- It
should be observed in addition that the grant of legal aid in respect
of the proceedings before this Court (see paragraph 8 above) was made
dependent on the state of the applicant's financial means at the
close of the present proceedings and on the absence of reimbursement
from any other quarter. It would also appear that section 12 of the
Legal Aid Act, as pertinent to the case (see paragraph 9 above),
dispenses the domestic authorities responsible for providing legal
aid from so doing if an award in respect of costs and expenses is
made by this Court. That being so, and although for present purposes
there seems nothing improper in the domestic legal position, the
Court cannot consider itself prevented from making such an award.
- It
remains for the Court to make its award.
- As
regards item (b) above, the Court again notes the lack of itemised
particulars. This part of the claim is therefore rejected in
accordance with Rule 60 § 3.
- As
regards items (a) and (c), the Court accepts that the expenses
claimed were actually and necessarily incurred. However, an hourly
rate of EUR 260 exceeds what the Court is prepared to consider
reasonable as to quantum.
- Basing
its calculations on the twenty-nine and one half hours of work
claimed and specified by Ms Spronken, the Court considers it
reasonable to award the applicant EUR 5,250 not including VAT for the
costs and expenses incurred in the Strasbourg proceedings.
3. Domestic proceedings following the Court's judgment
on the merits
- After
the Court delivered its judgment on the merits, the applicant sought
permission to suspend the payments which he was at that time still
making under the confiscation order. Later on, the Public Prosecution
Service brought proceedings in the 's-Hertogenbosch Court of Appeal
for the mitigation of its confiscation order.
- The
applicant submitted claims in respect of costs incurred in this
connection. These were based on the following:
(a) an
unspecified fee note from Mr Lina in an amount of EUR 2,378.83 for
legal assistance “in connection with the suspension of the
execution of the judgment of the 's-Hertogenbosch Court of Appeal in
connection with the judgment of the European Court of 1 March 2007”,
plus EUR 118.94 for office expenses, not including VAT;
(b) a
fee note with itemised particulars relating to the proceedings for
the mitigation of the confiscation order, in an amount of EUR
2,100.85 plus VAT for 10.25 hours of work by his counsel.
- As
regards item (a), the applicant has submitted copies of letters sent
by Mr Lina to the Central Judicial Collection Office (Centraal
Justitiëel Incasso Bureau) dated 26 March and 8 May 2007,
the latter's replies to these and to some other letters of which
copies have not been submitted, and copies of correspondence between
Mr Lina and Ms Spronken. The Court has doubts as to whether attempts
to obtain the suspension of payments exacted from the applicant
before its judgment became final (on 1 June 2007) can
properly be said to have been “necessary”, the more so
since these sums were ultimately repayable. At all events, the Court
fails to see how these few letters could justify the amount claimed.
Be that as it may, in the absence of itemised particulars the Court
considers it appropriate to reject this head of claim under Rule 60 §
3.
- As
regards item (b), it should be noted that the proceedings for
mitigation of the confiscation order were nothing more than the means
chosen by the respondent Party to acquit itself of its obligations
under Article 46 of the Convention; the Court's principal judgment
having become final, there could hardly be any uncertainty as to
their outcome. Quite apart from any doubts as to whether it is
“reasonable” that the applicant should be required to pay
for no fewer than 10.25 hours of work in this connection, the Court
takes the view that the resulting expense was not necessarily
incurred; it therefore rejects this head of claim also.
4. Conclusion as to costs and expenses
- The
Court's total award under the general head of costs and expenses thus
comes to EUR 5,250. To that figure should be added any taxes for
which the applicant is liable.
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,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts:
(i) EUR 1,000 (one thousand euros) in respect of
non-pecuniary damage;
(ii) EUR
5,250 (five thousand two hundred and fifty euros) in respect of costs
and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan
M. Zupančič
Registrar President
