In the case of Melikyan v. Armenia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 29 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
9737/06) against the Republic of Armenia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Armenian national, Ms Emilia Melikyan (“the
applicant”), on 9 March 2006.
The Armenian Government (“the Government”) were
represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
The applicant alleged, in particular, that she
was unable to challenge the legality of a Government decree before the domestic
courts.
On 7 January 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1949 and lives in Yerevan.
From 1986 to 2005 the applicant worked at Paren
Scientific Production and Planning State Closed Joint-Stock Company (hereafter
“the Company”).
On 27 July 2001 a law was adopted defining the
programme of privatisation of State property for the period from 2001 to 2003,
which listed the Company as one of many State companies subject to
privatisation.
On 5 February 2004 the employees of the Company
applied to the Government with a request that the Company’s property be
privatised through a direct sale to them. This request was admitted and was
being examined by the Government at the time of preparation of the draft
Government decree concerning the privatisation of the Company’s shares.
On 10 June 2004 the Government adopted a decree
(hereafter, the Decree), paragraph 1.2 of which set out that the Company’s
shares were to be privatised through a tender procedure. The Decree was
submitted to the President of Armenia for approval.
By a letter of 7 July 2004 the Department for
Management of State Property (hereafter the “DMSP”) informed the Company’s
employees that the relevant tender procedure was open to them.
On an unspecified date, before the approval of
the Decree by the President, a number of amendments were introduced, including
amendments to paragraph 1.2.
On 8 October 2004 the President of Armenia
approved the Decree, whose amended paragraph 1.2 stipulated that the Company’s
shares were to be privatised through a direct sale to a third person, A.K.
On 1 December 2004 the Company’s employees, including
the applicant, lodged jointly several claims with the Kentron and Nork-Marash
District Court of Yerevan against the Government and the DMSP seeking, inter
alia, prohibition of the application of certain provisions of the Decree
and recognition of their pre-emptive right to acquire the Company’s shares. On
the same date the claims were admitted for examination.
In the proceedings before the District Court,
the plaintiffs lodged an additional claim, contesting the legality of the
Decree and seeking partially to annul it. In particular, they claimed that the
Decree had been adopted in violation of Sections 27 § 2, 38 § 2 and 68 §§ 4 and
7 of the Law on Legal Acts, Section 10 § 1 of the State Property Privatisation
Act (hereafter “the Act”), and Articles 1, 5 and 8 of the Constitution. They
also filed a motion requesting the court not to apply Article 160 of the Code
of Civil Procedure (CCP) to their claim for annulment, arguing that this
provision violated their right of access to court, was unconstitutional and was
incompatible with the requirements of Article 6 of the Convention. They also
filed another motion requesting the court, in the alternative, to initiate
constitutional review proceedings to examine the constitutionality of that
provision. According to the applicant, the District Court never addressed those
motions.
On 25 January 2005 the Kentron and Nork-Marash
District Court of Yerevan decided to dismiss all the claims as unsubstantiated
except for the claim for annulment, in respect of which the District Court
decided under Article 109 of the CCP to terminate the proceedings on the ground
that it was not subject to examination by the courts of general jurisdiction.
In doing so, the District Court referred to Article 15 § 2 of the Civil Code
and paragraph 2 of Article 160 § 1 of the CCP.
On 8 February 2005 the applicant lodged an
appeal.
On 6 June 2005 the applicant filed motions with
the Civil Court of Appeal similar to those filed before the District Court.
On 22 June 2005 the applicant also requested the
Court of Appeal to order the DMSP to provide the originals or certified copies
of certain documents relating to the preparation of the Decree. The request was
granted but the Government apparently failed to comply with it.
On 28 June 2005 the Court of Appeal examined all
the claims, including the claim for annulment, and decided to dismiss them as
unsubstantiated. In doing so, the Court of Appeal concluded that the Government
of Armenia, as the owner of the Company, acted within its powers by disposing
of it in a lawful manner, through adoption of the Decree subsequently ratified
by the President.
On 13 July 2005 the applicant lodged an appeal
on points of law.
On 9 September 2005 the applicant filed a motion
similar to those filed before the lower courts.
On the same date the Court of Cassation quashed
the judgment of the Court of Appeal in its part relating to the claim for
annulment and decided to terminate the proceedings in that part on the same
grounds as the District Court.
On 16 November 2006 the Constitutional Court
found paragraph 2 of Article 160 § 1 of the CCP to be unconstitutional and
declared it invalid.
II. RELEVANT DOMESTIC LAW
A. The Constitution of Armenia of 1995
The relevant provisions of the Constitution,
prior to the amendments introduced on 27 November 2005, read as follows:
Article 38
“Everyone
has the right to defend his rights and freedoms by any means not prohibited by
law.
Everyone
has the right to judicial protection of his rights and freedoms guaranteed by
the Constitution and laws.”
Article 39
“Everyone has the right to a public hearing of his case by an
independent and impartial court within a reasonable time in conditions of
equality and with respect for all fair trial requirements in order to have his
violated rights restored, as well as the validity of the charge against him
determined. ...”
Article 100
“The Constitutional Court, in accordance with a procedure
prescribed by law, shall: (1) decide on the conformity of laws, the resolutions
of the National Assembly, the decrees and directives of the President of
[Armenia] and the decrees of the Government with the Constitution; ...”
Article 101
“Applications to the Constitutional Court can be submitted by:
(1) the President of [Armenia]; (2) at least one third of the deputies of the
National Assembly; (3) candidates for the office of the President of
[Armenia] and for the National Assembly in connection with disputes related to
election results; [and] (4) the Government...”
The above Articles 38, 39 and 101, as amended on
27 November 2005 with effect from 6 December 2005, read as follows:
Article 18
“Everyone
has the right to an effective remedy to have his rights and freedoms protected
by the judicial and other public authorities.
Everyone
has the right to defend his rights and freedoms by any means not prohibited by
law. ...”
Article 19
“Everyone has the right to a public hearing of his case by an independent
and impartial court within a reasonable time in conditions of equality and with
respect for all fair trial requirements in order to have his violated rights
restored, as well as the validity of the charge against him determined. ...”
Article 101
“Applications to the Constitutional Court can be submitted, in
a procedure prescribed by the Constitution and the Constitutional Court Act,
by: (1) the President of [Armenia] ...; (2) the National Assembly ...; (3) at
least one third of the deputies of the National Assembly ...; (4) the
Government ...; (5) the bodies of local self-government ...; (6) any person in
respect of a particular case, if there has been a final judicial act and all
the judicial remedies have been exhausted and when the dispute concerns the
constitutionality of a legal provision applied to that person by such act; (7)
the courts and the General Prosecutor on questions of constitutionality of
legal provisions relevant to a particular case dealt with by them; (8) the
Ombudsman ...; [and] (9) candidates for the office of the President of
[Armenia] and for the National Assembly... . The Constitutional Court examines
cases only on the basis of a relevant application.”
B. The Civil Code (in force from 1 January 1999)
The relevant provisions of the Civil Code read
as follows:
Article
14: Means of protecting civil rights
“Civil rights shall be protected: ... (6) by annulling acts of
public authorities or local self-government bodies; ...”
Article
15: Annulling unlawful acts of public authorities or local self-government
bodies
“1. The acts of public authorities or local
self-government bodies which are incompatible with laws or other legal acts and
which violate the civil rights and lawful interests of a citizen or a legal
person may be annulled by a court...”
2. The Constitutional Court of Armenia shall, under Article 100 of the Constitution of Armenia, decide on the compatibility of
laws, the resolutions of the National Assembly of Armenia, the decrees and
directives of the President of Armenia, and the decrees of the Government of
Armenia with the Constitution.”
Article 163: The notion and substance of the right to
ownership
“2. The owner has the right to carry out at his
discretion any action in respect of the property belonging to him, including
alienating his property to the ownership of other persons, transferring to such
persons the rights to use, possess and dispose of the property, pledging or
otherwise disposing of it, provided that such action does not contradict the
law or violate the rights and statutory interests of other persons.”
Article 171: Privatisation of State property
(denationalisation)
“The State may transfer the property it owns to the ownership
of citizens or legal entities in accordance with the procedure as provided for
by the laws on privatisation (denationalisation) of State property.”
C. The Code of Civil Procedure (in force from 12
January 1999)
The relevant provisions of the Code of Civil
Procedure, as in force at the material time, read as follows:
Article 109: Grounds for terminating the proceedings
“The court shall terminate the proceedings, if ... [inter
alia] the dispute is not subject to be examined by the courts...”
Article 159: Grounds for annulling unlawful acts of public
authorities, local self-government bodies and their officials or for
contesting their actions (inaction)
“Unlawful acts of public authorities, local self-government
bodies and their officials can be annulled or their actions (inaction) can be
contested (hereafter, annulling the unlawful act) if the act in question
contradicts the law and if there is evidence that the applicant’s rights and
(or) freedoms guaranteed by the Armenian Constitution and laws have been
violated. ...”
Article
160: An application seeking to annul unlawful acts of public
authorities, local self-government bodies and their officials
“1. An application seeking to annul unlawful acts of
public authorities, local self-government bodies and their officials
shall be submitted to a court dealing with civil cases or the Commercial Court, pursuant to their jurisdiction over cases.
The court cannot examine applications seeking to annul those
acts, the determination of whose conformity with the Constitution of Armenia
falls within the exclusive jurisdiction of the Constitutional Court.
2. The application may concern the unlawful act
itself or any part of it. ...”
D. The Law on Legal Acts (in force from 31 May 2002)
The relevant provisions of the Law, as in force
at the material time, read as follows:
Section 27: Elaboration of draft legal acts
“2. At the beginning of activities for the
elaboration of a draft law or another regulatory legal act which is significant
for its scale or importance, the body elaborating the draft may prepare its
concept paper. The concept paper shall include the description of the relations
subject to regulation and the objectives of the future legal act, shall state
the main provisions, analyse the anticipated consequences of implementation of
the norms being elaborated, and may present the preliminary structure of the
legal act.”
Section 38: Day of adoption of a legal act
“2. The reference number of a legal act shall be
established by the body adopting the legal act, only in Arabic numerals. The
sequence of numbers shall restart from 1 January of each year. Agency
regulatory legal acts must be numbered only in whole numerals.”
Section 68: Fulfilment of the requirements of legal acts
“4. If the fulfilment of a requirement of a norm
provided for in a legal act may be achieved only by the adoption of another
legal act provided for by that legal act, or its fulfilment is directly
conditional upon the adoption of another legal act, the legal act shall be
operative in respect of that norm upon the entry into force of the other
appropriate legal act.
7. State and local self-government bodies or their
officials shall be obliged to assist, within the scope of their powers, persons
in the exercise of their rights and fulfilment of their responsibilities, to
take appropriate measures provided for by the legislation of the Republic of
Armenia to restore their violated rights, as well as to eliminate the obstacles
to the exercise of the rights and fulfilment of responsibilities of persons, if
the exercise of those rights or fulfilment of those responsibilities is not in
conflict with the interests of the state security and public safety, public
order, public health and morals, or if it will not result in an infringement of
the rights and freedoms, honour and good reputation of others.”
E. The State Property Privatisation Act (in force from
10 February 1998)
The relevant provisions of the Act, as in force
at the material time, read as follows:
Section 3: The notion and objects of privatisation
“1. ...In accordance with the procedure provided for
by the present Act, the Government of Armenia shall issue a decree on
privatisation of State property (except for movable property allocated to a
public institution).”
Section
10: The right of members of staff to participate in the privatisation of
companies (enterprises) and “small” privatisation units
“1. The members of staff of the companies
(enterprises) or “small” privatisation units being privatised shall have equal
rights in buying the property of the companies (enterprises) or “small”
privatisation units in question. ...”
Section 14:Procedures for
privatising State property
“1. State property shall be privatised through the
following basic procedures: ... (c) tender process; [and] (d) direct
sale...
2. The decision on the procedure through which State
property is to be privatised shall be taken by the Government of Armenia, in
accordance with a procedure prescribed by this Act. ...”
Section
18: Privatisation of State property through direct sale
“1. State property shall be privatised through
direct sale to: the staff of the company; the leaseholder of the State
property; the holder (holders) of the company’s share not owned by the State;
or the potential buyer of a given property, if [the buyer] is known in advance.
2. ...An application submitted by the staff of a
given company to the competent public authority may serve as a ground for
privatising the State property included in the privatisation programme through
direct sale to the staff.”
F. Concept Paper on Privatisation and Optimisation of
Scientific Research and Planning/Design Organisations
On 13 September 2001 the Government approved the
Concept Paper on privatisation of scientific research and planning/design
organisations, which were divided into three categories. The third category
included organisations carrying out model design work and involved in experimental
manufacturing, such as the Company, whose privatisation was found to be
expedient. It was stated that such organisations were to be privatised through
direct sale to their staff and the approach to be applied was that the
privatisation should not merely pursue the aim of purchase and sale of State
property.
G. The decision of the Constitutional Court of 16
November 2006 on the Conformity of Article 160 of the Code of Civil Procedure
with the Constitution, adopted on the basis of applications lodged by citizens
Sofik Gasparyan and Artak Zeynalyan
The Constitutional Court found paragraph 2 of
Article 160 § 1 of the CCP incompatible with Articles 18 and 19 of the
Constitution, as amended on 27 November 2005, and invalid because it
failed to guarantee balance of power, created a serious gap in terms of
judicial control of legal acts and endangered the implementation of an
individual’s right to judicial protection of his rights and freedoms as
guaranteed by paragraph 1 of Article 18 of the Constitution. In doing so, the
Constitutional Court held that there existed a judicial practice in accordance
with which paragraph 2 of Article 160 § 1 of the CCP was applied by the
domestic courts to deny court examination of claims contesting the legality of
a number of legal acts including decrees of the President and the Government.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained under Articles 6 and 13
of the Convention that she was deprived of the right to challenge the legality
of the Decree before the domestic courts. The Court considers that this
complaint essentially raised an issue of access to court and must be examined
from the standpoint of Article 6 § 1 of the Convention only which, in so far as
relevant, provides:
“In the determination of his
civil rights and obligations ... everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...”
A. Admissibility
Compatibility ratione materiae
The Government submitted that Article 6 was not
applicable to the proceedings in question. In particular, the Government, being
a sole shareholder of the Company and enjoying ownership rights, acted within
the scope of their authority by adopting the Decree whereby they disposed of
their property. The applicant had no right under Armenian law to buy shares in
the Company and the alleged unlawfulness of the Decree could not have any
effect in that respect. Consequently, the applicant’s claim to buy the Company shares
had no legal basis in the domestic law and therefore there was no dispute over
a “right” in the present case. Besides, the result of the annulment of the
Decree was not directly decisive for the applicant’s alleged right to buy the Company.
The applicant claimed that Article 6 was
applicable to her case. In particular, her case concerned a “dispute” within
the meaning of Article 6 of the Convention, as with her claim she challenged
the legality of the decisions and actions of the public authority. Furthermore,
such dispute related to a civil right under Article 6 as the disputed right was
recognised under the domestic law.
. The
Court reiterates that, according to the principles laid down in its case-law,
it must first ascertain whether there was a “dispute” (contestation) over a “right” which
can be said, at least on arguable grounds, to be recognised under domestic law.
The dispute must be genuine and serious; it may relate not only to the actual
existence of a right but also to its scope and the manner of its exercise. The
outcome of the proceedings must be directly decisive for the right in question.
Lastly, the right must be a “civil” right (see, for example, Mennitto
v. Italy [GC], no. 33804/96, § 23, ECHR 2000-X).
. The
Court notes, firstly, that the applicant instituted proceedings whereby she
claimed that the Decree had been adopted in violation of laws and, in
particular, of her right to buy shares in the Company that was sold by the
Decree to another individual. There was therefore a dispute in the present case
which was genuine and serious.
. Secondly,
as to the question of whether there was a dispute over a “right”, the Court
observes that in the present case the Government, as the owner of the Company,
disposed of its property by selling it to a third person. It may therefore
appear that the contested Decree was delivered in the exercise of discretionary
powers by the authorities (see Bozhilov v. Bulgaria (dec.), no.
41978/98, 22 November 2001). However, the Court notes that the direct sale of a
company to its staff was envisaged by Article 18 of the Act as one of the
forms of privatisation of State property (see paragraph 29 above). Furthermore,
Article 10 of the Act explicitly provided that the members of staff of
companies being privatised had equal rights to buy the property of such companies
(see ibid.). Based on the above legal provisions, the Court considers
that the applicant’s contention that she had a right to buy the property,
namely shares in the Company during its privatisation, was not devoid of legal
basis and that such right could be said, at least on arguable grounds, to be
recognised under domestic law. Hence, there was a dispute over a “right” in the
present case.
. The
Court then notes that the possible recognition of the Decree as unlawful and
its annulment in the part relating to the sale of the Company to A.K. was
directly decisive for the applicant’s right subsequently to acquire shares in
the Company. It can therefore be held that, although the proceedings in
question did not have the determination of the applicant’s right as their
purpose, they were nevertheless directly decisive for such right.
. Lastly,
the Court notes that the applicant’s right to acquire and own shares in the
Company involved a distinct pecuniary interest and was undoubtedly “civil”.
. To
sum up, the Court considers that the proceedings whereby the applicant sought
to annul the Decree fell within the scope of Article 6 under its civil head.
The Government’s objection as to incompatibility ratione materiae must
therefore be dismissed.
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 Government submitted that the domestic
courts did not refuse to examine the applicant’s claim seeking partially to
annul the Decree. In particular, based on the applicant’s claim, civil
proceedings were instituted during which the applicant was given an opportunity
to challenge the legality of the Decree. Both the Kentron and Nork-Marash
District Court and the Court of Appeal examined the claim and dismissed it as
unsubstantiated, finding that the Decree had been adopted in accordance with
the law. Furthermore, the applicant’s claim for annulment concerned the alleged
unconstitutionality of the Decree rather than its unlawfulness as the
applicant, in substantiation of her claim, alleged before the District Court
that it had been adopted in violation of several Articles of the Constitution.
The Government further claimed that, at the
material time, Article 160 § 1 of the CCP was still in force and was found
unconstitutional more than one year later, namely on 16 November 2006, and only
in the context of the judicial practice, according to which that provision had
been applied by the domestic courts to deny examination of claims raising the
issue of legality of President or Government decrees. As in the present case,
the domestic courts applied Article 160 § 1 of the CCP in the context of the
applicant’s claim of the alleged unconstitutionality of the Decree, as opposed
to its unlawfulness. The fact that paragraph 2 of Article 160 § 1 of the CCP
was found unconstitutional by the Constitutional Court was irrelevant for the
examination of the present case.
The applicant submitted that she was deprived of
the right to challenge the legality of the Decree before the domestic courts.
Despite the fact that the domestic courts admitted her claim, they decided to
discontinue the proceedings and thus failed to examine it on the merits. There
was no judicial body under the domestic law where she could seek redress. Therefore,
she was deprived of her right to access to court as guaranteed by Article 6.
. The
Court reiterates that the right to a court, of which the right of access
constitutes one aspect, is not absolute but may be subject to limitations in
the form of regulation by the State. In this respect the State enjoys a certain
margin of appreciation. Nevertheless, the limitations applied must not restrict
the access left to the individual in such a way or to such an extent that the
very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article
6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the aim sought
to be achieved (see, among other authorities, Tolstoy
Miloslavsky v. the United Kingdom, 13 July
1995, § 59, Series A no. 316-B; Papon v.
France, no. 54210/00, § 90, ECHR
2002-VII; and Boyajyan v. Armenia, no. 38003/04, § 42, 22 March 2011).
. Turning
to the circumstances of the present case, the Court notes that under Armenian
law at the material time individuals enjoyed the right to seek annulment of
unlawful acts of public authorities (see above Article 15 § 1 of
the Civil Code and former Article 159 of the Code of Civil Procedure,
paragraphs 26 and 27). However, paragraph 2 of Article 160 § 1 of the CCP, as
applied by the domestic courts to the applicant’s case, imposed a total
restriction on the applicant’s possibility to seek judicial protection against
a decision of the executive authorities, namely the Decree, irrespective of
whether the alleged unlawfulness of the Decree or its alleged
unconstitutionality was invoked. The Government alleged that the domestic courts
had not refused to examine the applicant’s claim for annulment and that the
applicant’s claim concerned the alleged unconstitutionality of the
Decree rather than its unlawfulness. In this respect, the Court notes that the
applicant’s claim for annulment was left unexamined by the final decision of
the Court of Cassation on 9 September 2005 (see paragraph 22 above). The
Government’s allegation that the domestic courts had examined the claim is
therefore not based on the facts of the case.
Similarly, as it appeared from the case file,
the applicant, in substantiation of her claim for annulment, submitted that the
Decree had been adopted both in violation of law, namely Sections 27 § 2, 38 §
2 and 68 §§ 4 and 7 of the Law on Legal Acts and Section 10 § 1 of the Act as
well as Articles 1, 5 and 8 of the Constitution (see paragraph 14 above).
Therefore, the Government’s allegation that the applicant’s claim concerned the
alleged unconstitutionality of the Decree rather than its unlawfulness is not
based on the facts of the case either. In this respect, the Court points out
that the domestic courts did not indicate whether Article 15 § 2 of the Civil
Code and paragraph 2 of Article 160 § 1 of the CCP was applied to the applicant’s
claim only in its part concerning the alleged unconstitutionally of the Decree
and, if that was the case, what the reasons were for leaving unexamined the
part relating to the alleged unlawfulness of the Decree. It can therefore be
concluded that paragraph 2 of Article 160 § 1 of the CCP was applied to the
applicant’s claim as a whole. In this respect, the Court takes note of the fact
that, as was mentioned by the Constitutional Court in its decision of 16
November 2006, there existed a judicial practice in accordance with which
paragraph 2 of Article 160 § 1 of the CCP was applied by the domestic courts to
deny court examination of claims contesting the legality of a decree of the
President or the Government (see paragraph 31 above). Lastly, as far as the
decision of the Constitutional Court is concerned, the Court notes that
paragraph 2 of Article 160 § 1 of the CCP was found incompatible with the
Constitutional provisions guaranteeing judicial protection of rights and
freedoms of individuals, and declared invalid.
. Based
on the above, the Court considers that the domestic courts, by imposing such
indiscriminate restriction on the applicant’s right to seek judicial protection
against an allegedly unlawful act of the executive, violated the very essence
of the applicant’s right to access to court.
. There
has accordingly been a violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 6 of
the Convention that the domestic courts failed to examine her motions and that
the Government failed to comply with the Court of Appeal’s order to provide
certified copies of documents. She further complained under Article 1 of
Protocol No. 1 about her impossibility to buy shares in the Company.
Having regard to all the material in its
possession, and in so far as these complaints fall within its competence, the
Court finds that they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 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 165,000 euros (EUR) in
respect of both pecuniary and non-pecuniary damage.
The Government objected to this claim.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. At the same time, the Court considers
that the applicant has suffered non-pecuniary damage as a result of the
impossibility to contest the legality of the Decree before the domestic courts.
Ruling on an equitable basis, it awards the applicant EUR 3,600 in respect of
non-pecuniary damage.
B. Costs and expenses
The applicant did not submit any claim under
this head.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the
alleged violation of the right of access to court admissible and the remainder
of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention with respect to the right of access to court;
3. 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, EUR 3,600
(three thousand six hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 February
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall
Registrar President
