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FIRST
SECTION
CASE OF STELIOS SCHINAS-SPILIOS KAISARIS KOINOPRAXIA v. GREECE
(Application
no. 23410/09)
JUDGMENT
STRASBOURG
4 October
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Stelios Schinas-Spilios Kaisaris Koinopraxia 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 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 23410/09) 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 private
company based in Itea Fokidos,
Stelios Schinas-Spilios Kaisaris Koinopraxia (“the applicant”),
on 6 April 2009.
- The
applicant was represented by Mr S. Bregiannos, a lawyer practising in
Athens. The Greek Government (“the Government”)
were represented by their Agent’s delegate, Mrs F.
Dedousi, Senior Adviser at the State Legal Council.
- On
19 March 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
- In
accordance with a contract concluded on
18 February 1987 between the
Municipality of Itea and the
applicant, the latter
undertook the construction of a sewage treatment plant on behalf of
the municipality whose cost amounted to 143,036.24 euros.
5. On
24 July 1990 the applicant asked the department in charge of the
project (Technical
Services
of
Municipalities and Communities in
the Prefecture of Fokida
(hereafter “T.S.M.C”)
to compile a revised table of costs in order to take into account
further work following an amendment of the project. However, no table
was created within the determined three-month time-limit, following
the applicant’s request.
6. On
29 October 1990 the applicant lodged an objection with the T.S.M.C
– a remedy which had compulsorily
to be exhausted according to the national legislation before
having recourse to a court –
challenging the omission of the aforementioned department to compile
this table. The objection was rejected by the municipal council of
Itea.
7. On
8 February 1991 the applicant lodged an administrative appeal (αίτηση
θεραπείας)
against the abovementioned decision which was also tacitly rejected
by the Prefect
of Fokida.
8. On
3 July 1991 the applicant lodged a recourse with the Piraeus
Administrative Court of Appeal challenging
the implicit rejection
of the Prefect
of Fokida.
9. In
a judgment dated 30 June 1992 the Court of Appeal quashed the
decision of the Prefect and the case was remitted to him for
a fresh examination (judgment no. 1627/1992). In particular, the
appellate court rejected
the arguments of the Municipality of Itea according to which the
applicant had not complied with the procedural requirement concerning
the notification of the appeal to the other party.
10. On
24 November 1992 the Municipality of Itea lodged an appeal on points
of law.
11.
In a judgment dated 1st
April 1996 the Supreme Administrative Court quashed judgment
no. 1627/1992 of the
Court of Appeal and remitted the
case to a different division of the same court (judgment
no. 1618/1996).
- On
24 September 1997, the Court of Appeal dismissed the appeal. It held
that the requirement of notification of the appeal had been met and
dismissed the case on its merits, observing that the applicant’s
claim was contrary to the terms of the contract.
13. On
4 March 1998 the applicant lodged another appeal on points of law
with the Supreme Administrative Court. The hearing, which was
originally set for 15 March 1999, was subsequently adjourned to
10 December 2001 and then to 3 June 2002. Meanwhile, on 11
February 2002, the case was struck from the first division and
transferred to the sixth division of the court. A new hearing date
was set for 13 January 2003. Subsequently, between 13
January 2003 and 17 June
2008 the case was adjourned on sixteen consecutive
occasions.
14. The
hearing took place on the latter date.
15. In
a judgment dated 6 October 2008 the Supreme Administrative Court
quashed the ruling of the appellate court. In particular, it observed
that the finding of the Court of Appeal that the procedure had been
respected by the mere filing of the administrative appeal to the
municipality and the assignment of a registration number without any
notification by a bailiff or other public body being necessary was
contrary to the law. Subsequently, the Supreme Administrative Court
examined the applicant’s recourse de
novo and
dismissed it as inadmissible because the applicant had not complied
with the notification requirement (judgment no. 2757/2008). This
judgment was finalised
on 29 January 2009.
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.
- As
far as the period to be taken into consideration is concerned,
and in particular regarding the dies a quo, it
is observed that, when under the national legislation an
applicant has to exhaust a preliminary administrative procedure
before having recourse to a court, the proceedings before the
administrative body are to be included when calculating the length of
the civil proceedings for the purposes of Article 6 (see
Kiurkchian v. Bulgaria, no. 44626/98, §§ 51-52, 24
March 2005).
-
In the present case, prior to the recourse that the applicant lodged
with Piraeus Administrative
Court, he submitted an objection with
the T.S.M.C challenging
the omission of the aforementioned department to compile a revised
table of costs. This remedy had
to be exhausted according to the national legislation before
having recourse to a court.
- Accordingly,
the period to be taken into consideration started to run on
29 October 1990,
when the applicant lodged the abovementioned
objection and ended on 29 January 2009,
when judgment no. 2757/2008 of
the Supreme Administrative Court was finalised. It thus lasted
eighteen years and three 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 (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
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 as regards the
reasonableness of the length of the proceedings.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON
ACCOUNT OF THE FAIRNESS OF THE PROCEEDINGS
- The
applicant complained under Article 6 of the Convention that, by
declaring its recourse inadmissible, judgment no. 2757/2008
of the Supreme Administrative Court violated the applicant’s
right to a fair trial.
- 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 29, ECHR 1999 I). The Court also recalls that it is
not its task to act by calling into question the outcome of the
domestic proceedings. The domestic courts are best placed for
assessing the relevance of evidence to the issues in the case and for
interpreting and applying rules of substantive and procedural law
(see Pekinel v. Turkey, no. 9939/02, § 53, 18 March
2008).
- In
the present case, throughout the proceedings, the applicant was fully
able to state its case in particular on the question of
inadmissibility raised by the opposite party. There is nothing in the
case-file to indicate that the assessment of the evidence was
arbitrary or the proceedings were otherwise unfair to raise an issue
under Article 6. Moreover, judgment no. 2757/2008 of the Supreme
Administrative Court was sufficiently reasoned and clearly explained
why the applicant’s appeal should be rejected as inadmissible.
- In
view of the abovementioned, the applicant’s complaint is
therefore 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 70,479.84 euros (EUR) in
respect of pecuniary damage. The amount is exclusively linked with
the financial subject matter of the dispute before the domestic
courts and with its allegations that were rejected. Further, the
applicant claimed 20,000 EUR for non-pecuniary damage arguing that
efforts had been made by the
Municipality of Itea to
prevent or exclude it from obtaining new projects. Finally, it
alleged that its credibility and reputation had been prejudiced.
-
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 submitteds
that the finding of a violation would constitute sufficient just
satisfaction.
- 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, the applicant must have
suffered certain non-pecuniary damage as a result of the excessive
length of the proceedings. Thus, the Court considers it reasonable
that the sum claimed, namely EUR 20,000 should be awarded in full,
plus any tax that may be chargeable on this amount.
B. Costs and expenses
- The
applicant claimed EUR 7,699.92 for costs and expenses incurred before
the domestic courts and before the Court. It produced four
separate bills of costs (total sum of EUR 4,699.92) as regards
the costs incurred before the domestic courts and one in
support of its claim regarding the costs incurred before the Court
(EUR 3,000). It is observed that invoice
no. 1670b for a fee of EUR 2,000 (regarding costs before the
Supreme Administrative Court) and no. 2251 for a fee of EUR 3,000
(concerning the costs incurred before the Court) are not valid
receipts, as they are not accompanied by a formal tax receipt proving
payment.
-
The Government contested the applicant’s claims. They
considered that, taking into account that the evidence submitted by
the applicant does not meet the requirements of Rule 60 § 2 of
the Rules of the Court, as it is not specific and relevant, the claim
under this head should be dismissed under paragraph 3 of the
aforesaid Rule. In particular, with regard to the invoice
mentioned above, the Government noted that the documents
submitted did not constitute appropriate and sufficient evidence.
In the event, however, the Court considered it appropriate to award
the applicant a sum under this head, the amount of EUR 1,500 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 the costs claimed 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 costs incurred before the Court, in view of the
absence of any valid supporting documents, the Court finds that the
applicant’s claim under this head has not been substantiated.
- Regard
being had to the documents in its possession and the above criteria,
the Court considers it reasonable to reject the applicant’s
claim under this head.
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 20,000 (twenty thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 4 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly Kovler
Deputy Registrar President
