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FIRST
SECTION
CASE OF KAGGOS v. GREECE
(Application
no. 64867/09)
JUDGMENT
STRASBOURG
19
July 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kaggos v. Greece,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Anatoly
Kovler,
President,
George
Nicolaou,
Mirjana
Lazarova Trajkovska,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 64867/09) 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 Aristidis Kaggos (“the applicant”), on
24 November 2009.
- The
applicant was represented by Mr N. Anagnostopoulos and Ms A. Psycha,
lawyers 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
7 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 CIRCUMSTANCES OF THE CASE
- The
applicant, a retired military officer, was
born in 1930 and lives in Mytilini.
- On
15 November 1996 the applicant lodged an application with the Army
Solidarity Fund (Ταμείο
Αλληλοβοηθείας
Στρατού) (hereafter “the
Fund”) asking for an additional retirement premium, following
the amendment of the date of his retirement. On 29 November and
18 December 1996 the Administrative Council of the Fund rejected
his application at first instance and on appeal respectively.
- On
22 January 1997 the applicant lodged a recourse with the Athens First
Instance Administrative Court challenging the decisions of the Fund.
- In
a judgment dated 29 May 1998 the Athens First Instance
Administrative Court partially upheld the applicant's claim
and awarded him
7,739,869 drachmas (GRD) (i.e. 22,714
euros) (judgment no. 5835/1998).
- On
5 November 1998 the Fund lodged an appeal.
- On
27 September 2001 the Athens Administrative Court of Appeal accepted
the Fund's appeal and quashed the first
instance decision,
after having concluded that the legal
requirements for the award of an additional retirement premium had
not been satisfied (judgement no. 4030/2001). The applicant was
served with the decision on 25 February 2003.
- On
11 March 2003 the applicant lodged an appeal on points of law.
- On
7 July 2006 the Supreme Administrative Court quashed
the appellate decision and remitted the case to the Court of Appeal
(judgment no. 2034/2006).
- On
6 June 2008 the Athens Administrative Court of Appeal rejected the
appeal lodged by the Fund against judgment no. 5835/1998 of the First
Instance Administrative Court (judgment no. 1947/2008). The applicant
was served with the decision on 26 May 2009.
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
Government contested that argument.
- The
period to be taken into consideration began on 22 January 1997, when
the applicant lodged a recourse with the Athens First Instance
Administrative Court and ended on 6 June 2008, when judgment
no. 1947/2008 of the Athens Administrative Court of Appeal was
published. It thus lasted more than eleven years and four months for
three levels of jurisdiction.
A. Admissibility
- The
Court notes that the 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
- The
applicant further complained of the fact that in Greece there was no
court to which application could be made to complain of the 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
Government contested that argument.
- 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 Tsoukalas v. Greece, no.
12286/08, §§ 37-43, 22 July 2010) 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 25,000 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 considered
that an award should be made to the applicant, the sum of an
amount of EUR 6,000 would be adequate
and reasonable.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards
the applicant the amount of EUR 10,000 for non-pecuniary
damage, plus any tax that may be chargeable on
this amount.
B. Costs and expenses
- The
applicant claimed EUR 3,000 for costs and expenses incurred before
the domestic courts and EUR 1,500 for the costs and expenses incurred
before the Court. He produced two separate bills of costs; one for
the sum of EUR 403.04 for the costs incurred before the domestic
courts and one for the sum of EUR 1,500 regarding those incurred
before the Court.
- The
Government contested these claims. In so far as the costs and
expenses incurred before the domestic courts are concerned, the
Government observed that those were not causally linked with the
protracted length of the proceedings and that this claim should be
dismissed. In any event, they argued that the bills of costs
submitted, did not cover the total amount claimed. 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 applicant's
claim in respect of 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
assuming that the bills of costs submitted by the applicant covered
the total amount claimed in this respect, 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.
- In
respect of the claim for costs incurred before the Court, regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable that the sum claimed, namely EUR 1,500,
should be awarded in full, 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 10,000 (ten 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 19
July 2011, pursuant to Rule 77 §§ 2 and 3 of
the Rules of Court.
André Wampach Anatoly Kovler
Deputy Registrar President
