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 CENTRAL MEDITERRANEAN DEVELOPMENT CORPORATION LIMITED v.
MALTA
(Application no. 35829/03)
JUDGMENT
STRASBOURG
24 October 2006
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 Central Mediterranean Development Corporation
Limited v. Malta,
The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Sir Nicolas Bratza,
President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K.
Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 3 October 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 35829/03) against the
Republic of Malta lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Maltese company, Central Mediterranean Development Corporation
Limited (“the applicant”),
on 31 October 2003.
- The applicant company was represented by Mrs A.
Mifsud-Bonnici, a lawyer practising in Valletta, Malta. The Maltese
Government (“the Government”) were represented by their
Agent, Mr S. Camilleri, Attorney General.
- On 25 April 2005
the President of the Fourth Section decided to communicate the
application. Applying Article 29 § 3 of the Convention, he
decided that the Court should rule on the admissibility and merits of
the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The applicant, Central Mediterranean Development
Corporation Limited, is a Maltese company registered in Valletta.
A. The civil proceedings
- On 7 December 1990 the applicant company sued a certain
Mrs S. before the Civil Court (First Hall). It claimed that a
contract concluded with the defendant should be rescinded and
requested to reacquire possession of a plot of land. Its claim was
based on the fact that, disregarding the obligations arising from the
said contract, Mrs S. had not built a house or a villa on the plot in
issue and had failed to pay the agreed annual rent of 44 Maltese
liras (MTL – approximately 105 euros (EUR)).
- Mrs S. filed submissions in reply to the applicant’s
claim on 18 December 1990 and on 8 January 1991. The case was
set down for hearing on 21 February 1991, on which date a number
of preliminary pleas were raised. These were determined on 15 March
1991. Subsequently, the parties submitted their pleadings and the
case was reserved for judgment until 8 November 1991. The
parties were authorised to submit observations but failed to do so.
The case was adjourned first until 17 January 1992, then until
26 March 1992. The decision was adjourned twelve times.
- In a judgment of 5 October 1993 the Civil Court upheld
the applicant’s claim.
- On 29 October 1993 Mrs. S. appealed against that
judgment. The applicant filed submissions in reply on 25 November
1993. On 17 October 1996 the parties presented their oral
pleadings and the case was reserved for judgment until 16 January
1997. However, the decision was adjourned on twenty-eight occasions.
- In a judgment of 9 October 2001 the Court of Appeal
dismissed the appeal and upheld the first-instance judgment.
B. The applicant company’s constitutional
application
- Considering that its case had not been decided “within
a reasonable time”, on 13 August 2002 the applicant, invoking
Article 39(2) of the Constitution of Malta and Article 6 § 1 of
the Convention, lodged an application with the Civil Court (First
Hall) in its constitutional jurisdiction.
- In a judgment of 14 November 2002 the Civil Court
dismissed the applicant’s application. It observed that it did
not appear that there had been excessive delays in deciding the case
at first instance. The preliminary pleas had been decided on 21
February 1991 and the judgment on the merits had been delivered only
one and a half years after the date on which the case was ready for
decision. Moreover, the Civil Court had waited four months for the
parties to submit their observations. It was true that the
proceedings before the Court of Appeal had lasted a longer time. The
fixing of the date of the first sitting had taken three years and a
decision on the merits of the case had not been given until five
years later. However, the reasonableness of this delay had to be
examined in the context of the national judicial system, in which,
unlike in other countries, the right of appeal was automatic. Every
litigant who felt aggrieved by a decision given at first instance
could lodge an appeal without having to apply for leave to do so.
This obliged the Court of Appeal to examine a large number of cases
in detail, bearing in mind that its decision would be the final one,
and would therefore not be subject to review by any superior
authority. The expenses for bringing an appeal were also relatively
low, which constituted another factor encouraging citizens to bring
their cases before the Court of Appeal. In the Civil Court’s
view, the obligation of the State to organise its judicial system
with a view to complying with the “reasonable-time”
principle was to be balanced against the other privileges that the
Maltese system provided to its citizens.
- It was true that a period of five years for deciding
the applicant company’s case was “a bit long”
vis-à-vis its complexity and the workload of the Court
of Appeal, and that three years should have been in principle
sufficient. However, the Civil Court considered that this delay had
not reached the extent of seriously prejudicing the rights of the
parties, and was therefore not excessive.
- As to the claim for damages, the Civil Court observed
that the applicant company was seeking compensation for sixteen years
of unpaid rent (which amounted to MTL 864). However, the failure to
pay the rent was not due to the delay in determining the case and the
applicant company could have asked, and could still ask, for the rent
arrears from Mrs S. Moreover, it was likely that the market
value of the land had increased during the judicial proceedings. The
applicant company alleged that if it had regained possession of its
land in 1996 or 1997, it could have sold it for MTL 35,000. It had
accordingly requested the reimbursement of the interest on this sum
as compensation for pecuniary damage. The Civil Court could not
accept this argument, as the applicant company was still in
possession of its land and was trying to sell it for about MTL
60,000. In the Civil Court’s view, the loss of interest had
been compensated by the increase in the value of the land.
- The Civil Court concluded that even if a violation of
the “reasonable-time” principle had been found, no
compensation could have been awarded to the applicant company.
- The applicant company appealed to the Constitutional
Court.
- In a judgment of 8 May 2003 the Constitutional Court
reversed the decision of the Civil Court and declared that there had
been a violation of Article 6 § 1 of the Convention. It also
decided that the costs of the case should be borne by the Attorney
General, who should moreover pay the applicant company MTL 100
(approximately EUR 240) for non-pecuniary damage.
- The Constitutional Court observed that the Civil Court
had rightly pointed out that the delay in delivering the judgment on
appeal had been unreasonable. However, it could not be said that this
delay had not infringed Article 6 § 1 of the Convention. Before
the Court of Appeal, the parties had presented their oral pleadings
on 14 November 1996, but no decision on the merits had been given
until 9 October 2001, almost five years later. The case had been
adjourned several times and it did not appear that there had been any
special reasons for this. Moreover, the case was not particularly
complex and the parties had not obstructed its course. Therefore, an
overall period of inactivity of five years could not be accepted.
- The Constitutional Court considered that the applicant
company had not suffered any pecuniary damage. It upheld the
reasoning of the Civil Court on this point. However, it concluded
that prejudice of a non-pecuniary nature could be suffered even by a
private company, and awarded MTL 100 under this head.
THE LAW
- The applicant company alleged that the violation of
the “reasonable-time” principle found in its case had not
been effectively redressed. It invoked Article 13 of the
Convention, read in conjunction with Article 6 § 1.
In so far as relevant, these provisions read as follows:
Article
6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
Article
13
“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 Government contested that argument.
- The Court is of the opinion that the applicant
company’s complaint also relates in substance to the excessive
length of the civil proceedings. It therefore considers it necessary
to examine whether there has been a violation of Article 6 of the
Convention taken alone and read in conjunction with Article 13.
I. ADMISSIBILITY OF THE APPLICATION
A. The Government’s objection concerning the lack
of “victim status”
- The Government argued that the applicant company could
not claim to be the “victim”, within the meaning of
Article 34 of the Convention, of the facts complained of. They
observed that the Constitutional Court had indeed acknowledged a
violation of the “reasonable-time” principle and awarded
the applicant company MTL 100 for non-pecuniary damage, thus
providing adequate redress for the breach of the Convention.
- The applicant company submitted that according to the
Court’s case-law, the term “victim” denoted the
person directly affected by the act or omission in issue. It asserted
that it had undeniably suffered a violation of Article 6 of the
Convention.
- The Court reiterates that a decision or measure
favourable to the applicant is not in principle sufficient to deprive
him of his status as a “victim” unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for the breach of the Convention (see, for
example, Eckle v. Germany, judgment of 15 July 1982, Series A
no. 51, p. 32, §§ 69 et seq.; Amuur v. France,
judgment of 25 June 1996, Reports of Judgments and Decisions
1996 III, p. 846, § 36; Dalban v. Romania
[GC], no. 28114/95, § 44, ECHR 1999 VI; and Jensen
v. Denmark (dec.), no. 48470/99, ECHR 2001 X).
- The issue as to whether a person may still claim to be
the victim of an alleged violation of the Convention essentially
entails on the part of the Court an ex post facto examination
of his or her situation. As it has already held in other
length-of-proceedings cases, the question whether he or she has
received reparation for the damage caused – comparable to just
satisfaction as provided for under Article 41 of the Convention –
is an important issue. Regarding violations of the reasonable-time
requirement, one of the characteristics of sufficient redress which
may remove a litigant’s victim status relates to the amount
awarded as a result of using the domestic remedy. The Court has
already had occasion to indicate that an applicant’s victim
status may depend on the level of compensation awarded at domestic
level on the basis of the facts about which he or she complains
before the Court (Scordino v. Italy (no. 1), no. 36813/97, §§
181 and 202, 29 March 2006).
- In the case of Scordino v. Italy (no. 1) the
Grand Chamber held that when, in order to prevent or to put right
violations of the “reasonable time” principle,
Contracting States chose to introduce remedies of a compensatory
nature, it might be easier for the domestic courts to refer to the
amounts awarded at domestic level for other types of damage –
personal injury, damage relating to a relative’s death or
damage in defamation cases for example – and rely on their
innermost conviction, even if that resulted in awards of amounts that
were lower than those fixed by the Court in similar cases. However,
the Court should verify whether the way in which the domestic law is
interpreted and applied has produced consequences that are consistent
with the principles of the Convention, as interpreted in the light of
the Court’s case-law. It reiterates that, especially for States
that have effectively incorporated the Convention into their legal
systems, a clear error in assessment on the part of the domestic
courts may also arise as a result of a misapplication or
misinterpretation of the Court’s case-law (see Scordino,
cited above, §§ 182-192).
- In the present case, it is not disputed that the
Constitutional Court found a violation of Article 6 § 1 of the
Convention by reason of the excessive length of the civil proceedings
complained of. There has therefore been an acknowledgment, at the
domestic level, of the violation of the applicant company’s
rights. It remains to be ascertained whether the redress granted can
be considered appropriate and sufficient.
- According to the Court’s case-law, there is a
strong but rebuttable presumption that excessively long proceedings
will occasion non-pecuniary damage. It is acceptable, however, that,
in some cases, the length of proceedings may result in only minimal
non-pecuniary damage or no non-pecuniary damage at all. The domestic
courts will then have to justify their decision by giving sufficient
reasons. Moreover, when no remedy designed to expedite the
proceedings is provided for by the domestic legal system, which
affords only the possibility of obtaining financial compensation, the
threshold in respect of which the amount will still allow a litigant
to claim to be a “victim” will be higher (see Scordino,
cited above, §§ 204-206).
- In the instant case, the Constitutional Court awarded
the applicant company MTL 100 (approximately EUR 240) for an overall
length of more than ten years and ten months for two levels of
jurisdiction. It stressed, in particular, that a substantial period
of inactivity of almost five years had occurred during the
proceedings before the Court of Appeal. Thus, the Constitutional
Court applied a rate of less than EUR 24 per annum. The Court
observes that this amount is approximately 4.8% of what it generally
awards in similar Italian cases (see X200 S.R.L. v. Italy, no.
45060/98, § 15, 17 October 2000) and 7% of what it
awarded in a recent similar Maltese judgment (see Debono v. Malta,
no. 34539/02, § 49, 7 February 2006). That factor in itself
leads to a result that is manifestly unreasonable, having regard to
the Court’s case-law. It will revert to this matter in the
context of Article 41 (see paragraphs 59-61 below).
- In conclusion, the Court considers that the redress
afforded to the applicant company was insufficient. As the second
condition – that of appropriateness and sufficiency – has
not been fulfilled, the Court considers that
the applicant company can still claim to be the “victim”
of a breach of the “reasonable-time” requirement in the
instant case.
- Accordingly, the Government’s objection
concerning the applicant company’s lack of “victim
status” should be dismissed.
B. The Government’s objection of failure to
exhaust domestic remedies
- The Government submitted that the applicant company,
which had alleged a violation of Article 6 § 1 before the
domestic courts, had never raised an issue under Article 13 in
conjunction with Article 6 § 1 in the context of its
constitutional application. In the Government’s view, that
meant that it had not exhausted all available domestic remedies.
- The applicant company alleged that all domestic
remedies had been exhausted. It observed that both before the Civil
Court and the Constitutional Court it had sought a declaration that
the reasonable-time requirement had been infringed, together with an
adequate award of compensation.
- For reasons which appear below the Court does not
consider it necessary to examine whether the applicant has exhausted
all available domestic remedies as regards its complaint under
Article 13 of the Convention and consequently leaves this matter open
(see Zarb v. Malta, no. 16631/04, § 45, 4 July 2006).
C. Other grounds for declaring the application
inadmissible
- The Court notes that the application 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.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant company observed that its case, mainly
based on undisputed facts, had been a simple one and that there had
been no special reasons for the lengthy duration of its examination.
- 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).
- In the present case, the period to be taken into
consideration began on 7 December 1990, when the applicant company
sued Mrs S. before the Civil Court and ended on 9 October 2001, the
date of the Court of Appeal’s judgment. The proceedings at
issue thus lasted ten years, ten months and two days for two levels
of jurisdiction.
- 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).
- The Court observes that the applicant company’s
case was not particularly complex, and that the proceedings were
adjourned twelve times at first instance and twenty-eight times at
the appeal stage (see paragraphs 6 and 8 above). Moreover, as rightly
pointed out by the Constitutional Court (see paragraph 17 above), the
Court of Appeal gave its final judgment almost five years after the
date on which the parties had presented their final pleadings. No
convincing explanation for these delays has been given by the
respondent Government.
- The Court observes that in the
present case the Constitutional Court found that a reasonable time
had been exceeded. However, the fact that the constitutional
proceedings, examined as a whole, did not cause the applicant company
to lose its “victim” status constitutes an aggravating
circumstance regarding a breach of Article 6 § 1 for exceeding
the reasonable time (see, mutatis mutandis, Scordino,
cited above, § 225, and Zarb, cited above, § 38).
The Court will therefore revert to this issue under Article 41.
- Having examined all the material submitted to it, and
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.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION, READ IN
CONJUNCTION WITH ARTICLE 6 § 1
- The applicant company observed that the Constitutional
Court had acknowledged in substance that there had been a violation
of Article 6 by reason of the excessive length of the civil
proceedings. However, the Constitutional Court had made an award of
compensation which was ridiculous and much lower than those which had
been granted in similar cases by the domestic courts (MTL 500 for
proceedings which had lasted eleven years in the case of Attard
ne.et. v. Il-Prim Imhallef, judgment of the Civil Court (First
Hall) of 29 October 1992, and MTL 700 in respect of a period of
thirteen years in the case of Manduca v. Prim Ministru,
judgment of the Constitutional Court of 23 January 1995).
- The applicant alleged that the failure by Mrs S. to
comply with the obligations arising from the contract (notably,
building a house or a villa and paying the annual rent) had adversely
affected the market value of its land. These factors had been
aggravated by the time taken by the domestic courts to order the
restitution of the land. In spite of the above-mentioned
circumstances, the Constitutional Court had not awarded any
compensation for pecuniary damage, thus failing to take into account
what was at stake for the applicant company and providing a remedy
which was completely inadequate. Moreover, the Constitutional Court
had refused to acknowledge that there had been a violation of Article
39 § 2 of the Constitution of Malta.
- The Government disputed the applicant’s
arguments.
- The Court reiterates that Article 13 of the Convention
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).
- The Court has frequently held that the remedy required
by Article 13 must be “effective” in practice as well as
in law (see, for example, İlhan v. Turkey [GC], no.
22277/93, § 97, ECHR 2000-VII). The term “effective”
is also considered to mean that the remedy must be adequate and
accessible (see Paulino Tomás v. Portugal
(dec.), no. 58698/00, ECHR 2003-XIII). Remedies available to a
litigant at domestic level for raising a complaint about the length
of proceedings are “effective” within the meaning of
Article 13 of the Convention if they prevent the alleged violation or
its continuation, or provide adequate redress for any violation that
has already occurred (see Mifsud v. France (dec.) [GC], no.
57220/00, § 17, ECHR 2002-VIII; Scordino, cited
above, §§ 186-188; and Sürmeli v. Germany
[GC], no. 75529/01, § 99, 8 June 2006). Lastly, the Court
reiterates that the effectiveness of a remedy within the meaning of
Article 13 does not depend on the certainty of a favourable outcome
for the applicant (see Sürmeli, cited above, § 98)
and that the mere fact that an applicant’s claim fails is not
in itself sufficient to render the remedy ineffective (see Amann
v. Switzerland [GC], no. 27798/95, §§ 88-89, ECHR
2002-II).
49. The Court must determine whether the means available to the
applicant company in Maltese law for raising a complaint about the
length of the proceedings in its case could be considered
“effective”.
- The Court notes that Maltese law in principle provided
a remedy which enabled the applicant company to raise with the
national courts its complaint about the length of the proceedings in
its case. The applicant company indeed instituted constitutional
proceedings before the Civil Court (First Hall) in its constitutional
jurisdiction and, on appeal, before the Constitutional Court. Its
complaint under Article 13 mainly related to the amount of the
compensation awarded by the Constitutional Court, a question which
the Court has addressed in its examination of the Government’s
objection of lack of victim status (see paragraphs 24-31 above).
- The Court observes that there existed no limit on the
amount of compensation which could be granted to an applicant in such
proceedings. The amount awarded to the applicant was based solely on
the exercise by the domestic court judges’ of their discretion
as to what might constitute appropriate
pecuniary redress in the circumstances of the applicant’s own
case. The mere fact that the amount of compensation given was low
does not render the remedy in itself ineffective. Furthermore, no
other evidence has been provided showing that the remedy at issue
could be considered ineffective. In the light of the foregoing, the
Court considers that the above mentioned situation cannot be regarded
as a breach of the applicant’s right to an effective remedy
(see Zarb, cited above, § 51).
- Accordingly, in the present case there has been no
violation of Article 13 of the Convention, read in conjunction with
Article 6 § 1.
IV. 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.”
Damage
- The applicant company submitted that it had suffered
pecuniary damage equal to the unpaid rent and penalties it was owed
by Mrs S., amounting to a total sum of MTL 1,858 (approximately EUR
4,459). Moreover, Mrs S.’s failure to build on the company’s
plot of land had decreased its market value.
- The applicant company also claimed that it had
suffered damage of a non-pecuniary nature. It left the amount to be
determined by the Court.
- The Government argued that the applicant company’s
claim in respect of pecuniary damage should be dismissed, as there
was no causal link between the excessive duration of the proceedings
and the alleged damage. The applicant company could have taken other
forms of action, such as having a judicial letter served on Mrs S. or
bringing an ordinary civil suit. Furthermore, the applicant had
failed to request the domestic court to order Mrs S. to pay the
relevant penalties. The Government also considered that the fact that
the applicant company’s plot of land had remained undeveloped
for thirty-two years was not attributable to the authorities but to
Mrs S. The plot would have remained undeveloped even if the
proceedings had been concluded within a reasonable time.
- As to non-pecuniary damage, the Government submitted
that the Constitutional Court had awarded the applicant MTL 100 under
this head, a sum which should be considered adequate in the
circumstances of the present case.
- The Court considers that there is no causal link
between the pecuniary damage alleged by the applicant and the
violation found in the present case. It therefore makes no award
under this head.
- The Court considers, on the contrary, that the
applicant company suffered non-pecuniary damage. However, it should
be kept in mind that at domestic level it had already obtained MTL
100 under this head. In the case of Scordino (cited above, §§
268-269) the Grand Chamber stressed that the amount to be awarded for
non-pecuniary damage under Article 41 may be less than that indicated
in its case-law where the applicant has already obtained a finding of
a violation at domestic level and compensation by using a domestic
remedy. However, where an applicant can still claim to be a “victim”
after using that domestic remedy he or she must be awarded the
difference between the amount obtained from the national courts and
an amount that would not have been regarded as manifestly
unreasonable compared with the amount awarded by the Court if it had
been awarded at the domestic level (see also Zarb, cited
above, § 59).
- Having regard to the circumstances of the present case
(see paragraph 41 above), the Court considers that, in the absence of
domestic remedies, it would have awarded the sum of EUR 7,500. It
notes that the applicant company was awarded EUR 240 by the
Constitutional Court, which is approximately 3.2% of what the Court
would have awarded. In the Court’s view, this factor in itself
leads to a result which is manifestly unreasonable, having regard to
the criteria established in its case-law.
- Having regard to the characteristics of the domestic
remedy chosen by Malta and the fact that, notwithstanding that
remedy, the Court has found a violation, it considers, ruling on an
equitable basis, that the applicant company should be awarded EUR
3,000, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The applicant company sought the reimbursement of the
costs incurred before the domestic courts, namely MTL 364.16
(approximately EUR 874) for the proceedings before the Civil Court
and the Court of Appeal and MTL 444.16 (approximately EUR 1,027)
for the constitutional proceedings. It also sought MTL 528.50
(approximately EUR 1,268) for the costs incurred before the Court.
- The Government submitted that there was no causal link
between the violation found and the costs incurred before the Civil
Court and the Court of Appeal. They observed that at the outset of
those proceedings Mrs S. had been ordered to pay the applicant
company’s legal costs and that the latter’s failure to
recover them was unconnected to the length of the proceedings. As to
the expenses incurred in the constitutional proceedings, the
Constitutional Court had ordered the Government to pay them and all
the applicant company had had to do was submit the relevant bills.
- According to the Court’s case-law, an applicant
is entitled to reimbursement of his 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. In the present case,
regard being had to the information in its possession, the Court
finds that there is no causal link between the expenses incurred
before the Civil Court and the Court of Appeal and the violation
found in the present case. Regarding the costs of the constitutional
proceedings, as the Government rightly pointed out, the
Constitutional Court held that they should be borne by the Attorney
General (see paragraph 16 above). At the same time, the Court
considers that the amount claimed for the fees and costs incurred
before it is reasonable. It therefore awards the applicant company
EUR 1,268 under this head, plus any tax that may be chargeable 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been no violation of
Article 13 of the Convention, read in conjunction with Article 6 §
1;
- 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, to be converted into Maltese liras
at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros) in respect of
non-pecuniary damage;
(ii) EUR 1,268 (one thousand two hundred and sixty-eight
euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
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 24 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 §
2 of the Convention and Rule 74 § 2 of the Rules of Court, the
concurring opinion of Judge Bonello is annexed to this judgment.
N.B.
T.L.E.
CONCURRING OPINION OF JUDGE BONELLO
- I voted to award the applicant only EUR 3,000 in
respect of non-pecuniary damage, solely in deference to the criteria
recently established by the Grand Chamber of the Court in the cases
of Scordino and Cocchiarella v. Italy (29 March 2006)
in which deliberations I did not participate and with whose
conclusions I respectfully disagree.
- According to its long-established criteria, the Court
would have awarded the applicant company EUR 7,500 had its
case been decided in Strasbourg. Instead of applying the Strasbourg
scale of compensation, the domestic courts fobbed the applicant
Company off with EUR 240 – which represents a beggarly 3.2% of
what the Strasbourg court would have awarded (see
§ 60).
- For having complied with the Convention’s
requirement of exhausting domestic remedies before applying to the
Strasbourg Court, the applicant now finds himself penalized by
getting only about 45% of what would have been due to him according
to the Court’s practice. The argument (used in Scordino
and Cocchiarella) that the sum obtainable in Strasbourg should
anyway be curtailed because the applicant enjoyed the convenience of
a domestic remedy, in the present case falls flat on its face. The
so-called domestic ‘remedy’ worked out at only 3.2% of
what he was entitled to, and the so-called ‘convenience’
consisted in having to undergo the burden of three sets of
court proceedings instead of one.
