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FIRST
SECTION
CASE OF ALEXAKIS v. GREECE
(Application
no. 23377/08)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Alexakis v. Greece,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Anatoly Kovler, President,
Sverre
Erik Jebens,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 30 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 23377/08) against the
Hellenic Republic lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a
Greek national, Mr Athanasios Alexakis (“the applicant”),
on 6 May 2008.
- The
applicant was represented by Ms A. Giannopoulou, a lawyer practising
in Athens. The Greek Government (“the
Government”) were represented by their Agent’s delegates,
Mr M. Apessos, Senior Adviser at the State Legal Council, and Ms M.
Germani, Legal Assistant at the State Legal Council.
- On
6 November 2009 the
President of the First Section decided to give notice of the
application to the Government. In accordance with Protocol 14, the
application is assigned to a committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1940 and lives in Athens.
- On
15 June 1999 he brought
an action for declaratory judgment (αναγνωριστική
αγωγή)
before the First Instance Administrative Court
of Athens. In particular, he asked the court to declare that
the Welfare fund of the Staff of the Greek Railways Organisation
(Ταμείο
Πρόνοιας
Προσωπικού
ΟΣΕ),
which is a legal person governed by public law, owed him
€ 3,901.10. This sum corresponded to an allowance the
applicant alleged he was entitled to when he retired.
- On
30 May 2001 the action was dismissed (judgment no. 3648/2001).
- On
10 April 2002 the applicant filed an appeal before the Athens
Administrative Court of Appeal challenging the court’s findings
and its evaluation of the evidence.
- By
judgment dated 11 March 2004 the court dismissed the applicant’s
appeal and upheld the findings of the First Instance Court (judgment
no. 898/2004).
- On
8 December 2004 the applicant lodged an appeal on
cassation with the
Supreme Administrative Court. On 6
November 2007 he withdrew his appeal and
a relevant report, to that effect, was delivered by the Supreme
Administrative Court on 19 November 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings 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
period to be taken into consideration began on 15
June 1999 when the applicant lodged his action with the First
Instance Administrative Court of Athens and ended on 19
November 2007 when a report was delivered by the
Supreme Administrative Court stating
that the applicant had withdrawn his
appeal on cassation on 6 November 2007. It thus lasted more
than eight years and five months for
three levels of jurisdiction.
A. Admissibility
- The
Court notes 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
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 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Lastly
the applicant complained of the lack of an effective domestic
judicial remedy for excessive length of proceedings. He relied on
Article 13 of the Convention which provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It notes that objections and arguments put forward by the
Government have been presented and rejected in earlier cases (see
Konti-Arvaniti v. Greece, no. 53401/99, §§
29-30, 10 April 2003) and sees no reason to reach a different
conclusion in the present case.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of a
remedy under domestic law whereby the applicant could have obtained a
ruling upholding his right to have his case heard within a reasonable
time, as set forth in Article 6 § 1 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 6,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered the amount claimed exorbitant and submitteds
that the finding of a violation would constitute sufficient just
satisfaction. They submitted, however, that if the Court heldholds
that an amount should be awarded to the applicant, an
amount of EUR 2,000 would be adequate
and reasonable.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards him EUR 4,000 under
that head, plus any tax that may be chargeable
on this amounts.
B. Costs and expenses
- The
applicant also claimed EUR 6,000 for the costs and expenses incurred
before the domestic courts and for those incurred before the Court.
He produced an invoice for EUR 1,000 regarding the costs and expenses
incurred in the proceedings before the Court.
- The
Government did not express an opinion on the matter.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum (see Iatridis
v. Greece (just satisfaction) [GC],
no. 31107/96, § 54, ECHR 2000 XI). In the
present case, regard being had to the documents in its possession and
to its case-law, the Court considers it reasonable to award the sum
of EUR 500 for the proceedings before the Court, plus any tax that
may be chargeable to the applicant.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months EUR
4,000 (four thousand euros) in respect of non-pecuniary damage and
EUR 500 (five hundred euros) in respect of costs and expenses, plus
any tax that may be chargeable on these 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 21 October 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly Kovler
Deputy Registrar President
