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FIRST
SECTION
CASE OF IOANNIS AGGELAKIS v. GREECE
(Application
no. 51640/08)
JUDGMENT
STRASBOURG
18
October 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Ioannis Aggelakis v. Greece,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Anatoly
Kovler,
President,
Linos-Alexandre
Sicilianos,
Erik
Møse,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 51640/08) 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 Ioannis Aggelakis (“the applicant”),
on 3 October 2008.
- The
applicant was represented by Mr P. Aggelakis, a lawyer practising in
Athens. The Greek Government (“the Government”)
were represented by their Agent’s
delegates, Mr M. Apessos and Ms K. Paraskevopoulou, Senior
Advisers at the State Legal Council, and Ms Z. Chatzipavlou,
Legal Assistant at the State Legal Council.
- On
11 May 2010 the
President of the First Section decided to give notice of the
application to the Government. In accordance
with Protocol No. 14, the application was allocated to a
Committee of three Judges.
THE FACTS
- The
applicant was born in 1958 and lives in Athens.
- On
28 November 2000 the Ministry of Finance imposed a fine of 51,693,912
drachmas (GRD) (deficit: GRD
34,501,041 + default interest: GRD
17,192,871, i.e. 93,012.21 euros (EUR))
on the applicant for his alleged responsibility in the creation of a
budget deficit in the Department of Urban Planning at the city of
Chania, where he was posted (act no. 5654/28.11.2000).
- On
22 March 2001, the applicant lodged an
appeal with the State Audit Council (Ελεγκτικό
Συνέδριο)
challenging act no. 5654/28.11.2000.
- A
hearing took place on 6 May 2003 and 20 April 2004.
- By
judgment dated 29 June 2004 the State Audit Council partially
accepted the applicant’s appeal. The act was annulled only
regarding the part ordering the applicant to pay default interest. As
the court observed, the applicant had, among
other functions, accounting responsibilities within the Planning
Department and, under domestic law in case of public deficit,
liability was incurred. Further, it was noted that, as it appeared
from the evidence submitted, the applicant had been acting unlawfully
in the performance of his duties. He was found to be liable for the
payment of sums greater than those determined as wages and, also,
certain amounts had been paid to persons not eligible to receive
them. Moreover, it was admitted that the applicant had previously
been questioned by the inspector in charge, put forward his views on
the matter and had also been invited to restore the deficit in
question (judgment no. 1502/2004). The judgment was served on the
applicant on 2 October 2004.
- On
23 September 2005 the applicant lodged an appeal on points of
law and a hearing took place on 7 November 2007.
- On
4 June 2008 the Plenary of the State Audit Council upheld judgment
no. 1502/2004, after having concluded that the first instance court’s
judgment was right and sufficiently reasoned (judgment
no. 1456/2008). The applicant was served with the decision on 21
August 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE
PROCEEDINGS
- 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
Government contested that argument.
- The
period to be taken into consideration began on 22 March 2001 when
the applicant lodged an appeal with the State Audit Council and
ended on 4 June 2008 with judgment no. 1456/2008 of the Plenary of
the State Audit Council. It thus lasted more than seven years and two
months for two levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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
there were repeated procedural delays over the entire course of the
proceedings. As
far as the applicant’s conduct is concerned, the Court
notes that more than eleven months of the total length of
the proceedings before the national
courts are attributable to him.
In particular, the
Court observes a delay regarding
the lodging of an appeal on points of law with the Plenary of
the State Audit Council challenging judgment no.
1502/2004 of
the State Audit Council.
However, the Court does not find
that it was the applicant’s conduct alone which contributed to
the prolonged length of the proceedings. On the contrary, the Court
is of the opinion that the actual length of the proceedings - which
was approximately six years -
without taking into account the applicant’s delay regarding the
lodging of an appeal on points of law, remains excessive. In
particular, it is noted that the duration of the proceedings when the
case was pending before the State Audit Council
- which lasted for more than three years and three months - and
before the Plenary of State Audit Council
- which lasted more than two years and eight months - was
attributable to the national courts. Their handling of the case did
not facilitate its timely completion. In the Court’s opinion,
the length of the proceedings can only be explained by the failure of
the domestic courts to deal with the case diligently (see Gümüÿten
v. Turkey,
no. 47116/99, §§
24-26, 30 November 2004).
- Thus, in the light of the
criteria laid down in its case-law and having regard to all the
circumstances of the case, the Court considers that 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
19.
The applicant complained under Article 6 of the Convention about
the fairness of the domestic proceedings, the assessment of the
evidence by the domestic courts and their alleged failure to examine
all his arguments. In particular, he
complained,
inter
alia, that
the domestic
courts had committed errors of fact and law and
the decisions had
not been well reasoned.
He further complained about the
absence
of
a
hearing
prior to the
imposition of
the
fine
in question.
- The
Court recalls 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. In particular, it is not the Court’s function
to deal with errors of fact or law allegedly committed by a national
court unless and in so far as they may have infringed rights and
freedoms protected by the Convention (see, among many others,
García Ruiz v. Spain [GC], no. 30544/96, § 28,
ECHR 1999 I). Further, the Court reiterates that, according
to its case-law, while Article 6 § 1 of the Convention requires
courts to give reasons for their decisions, this is not to be
understood as requiring a detailed reply to every argument (see Van
de Hurk v. the Netherlands, 19 April 1994, § 61, Series A
no. 288). The extent of this obligation may vary depending on the
nature of the decision and must be analysed in the light of the
circumstances of each case (Higgins and Others v. France, 19
February 1998, § 42, Reports of Judgments and Decisions
1998 I).
- In
this case, the Court observes that
throughout the proceedings, the applicant was fully able to state his
case and there is nothing in the case-file to indicate that the
taking and the assessment of the evidence by the State
Audit Council was arbitrary or the
proceedings were otherwise unfair to raise an issue under Article 6.
Moreover, having regard to the judgments of the domestic
courts, which deal clearly and unambiguously with the various points
that were submitted by the applicant, it does not appear that the
domestic courts failed in their obligation to give reasons. As
the plenary of the State Audit Council
observed, the first instance court in its judgment clearly explained
that the applicant had been acting
unlawfully in the performance of his duties and had been
responsible for the creation of the budget deficit in question.
It was also admitted that the applicant had previously been
questioned by the inspector in charge, put forward his views on the
matter and had also been invited to restore the abovementioned
deficit. Moreover, the Court observes that appeal
and cassation hearings took
place before the State Audit Council -
on 6 May 2003, 20 April 2004 and 7
November 2007 respectively - where the applicant had the possibility
to raise his allegations. Thus, there is no
indication of any arbitrariness.
- In
view of the abovementioned, the applicant’s complaints are
manifestly ill-founded and must be rejected under Article 35 §§
3 (a) 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 EUR 145,157.12 for the pecuniary damage he
allegedly suffered. Further, he claimed EUR 150,000 for non-pecuniary
damage. He argued that during all the period
that the proceedings had been pending he suffered distress and
social humiliation.
- The
Government contested the applicant’s claims for
pecuniary and non-pecuniary damage. In particular, regarding
the applicant’s claim for non-pecuniary damage they considered
the amount claimed exorbitant and submitted that the finding of a
violation would constitute sufficient just satisfaction. They
claimed, however, that if the Court heldholds
that an amount should be awarded to the applicant, an
amount of EUR 3,000 would be adequate
and reasonable.
- 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 5,000 in respect of
non-pecuniary damage, plus any tax that may be
chargeable on this amounts.
B. Costs and expenses
- The
applicant claimed EUR 8,224.19 for costs
and expenses incurred before the domestic courts and for those
incurred before the Court. He produced eight separate bills of costs
(total sum of EUR 5,224.19) as regards
the costs incurred before the domestic courts and one in support of
his claim regarding the costs incurred before the Court (EUR 3,000).
- The
Government contested these claims. Regarding the costs and expenses
incurred before the domestic courts, they observed that five of the
eight bills of costs submitted in this respect (sum of EUR 4,283.41),
did not refer to the proceedings in question before the State
Audit Council but to other proceedings before
the Court of Appeal and the Court of Cassation. They further noted
that, in any event, even the expenses incurred before the State
Audit Council (sum of EUR 940.78) were
not causally linked with the protracted length of the proceedings and
that this claim should be dismissed. With regard to the amount of
costs and expenses allegedly incurred before the Court, the
Government submitted that the amount claimed was not reasonable. In
the event, however, the Court considered it appropriate to award the
applicant a sum under this head, the amount of 1,000 EUR would
be adequate.
- 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).
- Regarding the costs
incurred before the domestic courts, the Court has already ruled that
the length of a procedure could result in increased costs for the
applicant before the domestic courts and should therefore be taken
into account (see Capuano v. Italy,
25 June 1987, § 37, Series A no. 119). The Court notes,
however, that, even concerning the bills of costs submitted as
regards the proceedings before the State Audit Council,
the costs in this case were not caused by the length of proceedings
but were costs normally incurred in the context of the proceedings.
Thus, the Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim.
- Nevertheless, the Court
considers that, having regard to the documents in its possession and
its case-law, it is reasonable to award the sum of EUR 1,500 in
respect of the costs incurred before the Court, plus any tax that may
be chargeable to the applicant 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
- 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 EUR 5,000 (five thousand euros), in
respect of non-pecuniary damage and EUR 1,500 (one thousand 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 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly Kovler Deputy Registrar President
