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FOURTH
SECTION
CASE OF BAJRAMI v. ALBANIA
(Application
no. 35853/04)
JUDGMENT
STRASBOURG
12
December 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 Bajrami v. Albania,
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 10 October 2006 and 21 November 2006.
Delivers
the following judgment, which was adopted on the last date:
PROCEDURE
- The
case originated in an application (no. 35853/04) against the Republic
of Albania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an ethnic Albanian from
Kosovo, Mr Agim Bajrami (“the applicant”), on 27
September 2004.
- The
applicant was represented by Ms E. Murataj, a lawyer practising in
Fier. The Albanian Government (“the Government”) were
represented by their Agent, Mr S. Puto, of the Ministry of Foreign
Affairs.
- On
14 March 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Caralevë, in the
municipality of Shtime (Kosovo).
- On
28 April 1993 the applicant married F.M., an Albanian national. The
couple had a child, I.B., who was born on 20 January 1997. In 1998
the applicant and F.M. separated.
- F.M.,
together with her daughter, moved to her parents’ house in
Vlora, Albania.
- On
6 May 1999, using forged documents, the applicant’s wife
married another person without being divorced from the applicant.
- It
appears that on 15 September 1999 the Vlora District Court annulled
F.M.’s second marriage. On an unspecified date she married
H.I., an Albanian national who resided in Greece.
- During
the years that followed F.M.’s third marriage, she frequently
travelled to Greece, leaving her daughter for long periods with her
parents in Vlora, or taking her to Greece without the applicant’s
consent.
- F.M.
and her parents prohibited the applicant from having contact with his
daughter. Since his separation from F.M., the applicant has been
permitted to see his daughter only twice, in September 2000 and May
2003.
1. Divorce and custody proceedings
- On
24 June 2003 the applicant brought divorce proceedings before the
Vlora District Court.
- On
26 June 2003 the applicant requested the Vlora Police District to
block his daughter’s passport in view of the fact that his wife
was planning to take her to Greece without his consent.
- Despite
the applicant’s requests to the Vlora Police District, it
appears that his wife took the child to Greece on 15 January 2004,
using an official certificate in which the applicant’s daughter
had been registered with the name I.M., using F.M.’s surname.
- The
applicant’s wife was not present at the hearings. The latter’s
father testified before the court that his grandchild was in Greece
with her mother, who resided there as an economic refugee.
- On
4 February 2004 the Vlora District Court decreed
the parties’ divorce. The court granted custody of the
child to the applicant, having regard to the wife’s lack of
interest in the child’s life, the instability of her
residential arrangements and her long periods of separation from the
child.
- On
19 March 2004 the divorce and custody decisions became final.
2. Enforcement proceedings
- On
5 April 2004 the Vlora District Court issued a writ for the
enforcement of the Vlora District Court’s judgment of 4
February 2004.
- On
13 July 2004 the Vlora Bailiffs’ Office informed the applicant
that it was impossible to enforce the judgment since the child was
not in Albania.
- On
15 August 2004 and 13 January 2005 the applicant applied to the
Albanian Ministry of Justice to secure the return of his daughter.
- On
11 January 2005, when questioned by the bailiffs, F.M.’s father
declared that F.M. and the child were living abroad and that he had
no news of their whereabouts. The bailiffs went to F.M.’s home
on three occasions between January 2005 and May 2005.
- In
May 2005 the Selenice District Police Station informed the bailiffs
that F.M. and her daughter were not living in Athens and that F.M.’s
father had moved to an unknown address in Tirana.
- In
July 2005 the Bailiffs’ Office informed the applicant that in
order to comply with the bilateral agreement between Albania and
Greece he had to introduce a request and specify the precise address
of the child in Greece.
- The
applicant sent numerous requests to the Albanian authorities, the
Greek Embassy in Albania, the Ombudsperson of Albania (Avokati i
Popullit) and the Ombudsperson of Kosovo, in order to obtain
assistance in securing the enforcement of the custody decision.
3. Criminal proceedings for child abduction
- On
14 August 2004 the applicant initiated criminal proceedings with the
Vlora District Court against his former wife, accusing her of child
abduction.
- On
13 October 2004 the Vlora District Court informed the Albanian
Ombudsperson that no lawsuit had been filed with it relating to the
abduction of the applicant’s daughter.
4. Criminal proceedings against A.C.
- On
15 December 2003 the applicant initiated criminal proceedings against
A.C., a Civil Status Office employee. He accused her of falsifying
various documents that had enabled F.M. to remove I.B. from Albania,
and particularly of forging documents declaring his wife to be
unmarried and altering his daughter’s surname.
- On
26 January 2004 the Vlora District Court decided to discontinue the
proceedings.
5. Recent developments
- On
22 August 2006 the Government informed the Registry that on 31 March
2006 the Vlora Court of Appeal had repealed the custody judgment of 4
February 2004 on the grounds that F.M. had not been duly informed of
the proceedings on the custody of her daughter. The domestic court
decided to send the case to the Vlora District Court for a fresh
examination and thus the custody proceedings are still pending.
- On
23 August 2006, following the Registry’s request, the applicant
stated that he had neither been informed of the institution of the
new proceedings nor about their outcome.
- The
proceedings had been brought by F.M.’s lawyer and held in the
applicant’s absence.
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW
A. Relevant international law
1. Hague Convention on the Civil Aspects of
International Child Abduction
- At
present, Albania has not ratified the Hague Convention of 25 October
1980 on the Civil Aspects of International Child Abduction.
2. United Nations Convention on the Rights of the Child
- Article
11 of the Convention on the Rights of the Child of 20 November
1989, ratified by Albania on 27 February 1992, requires States
Parties to take measures to combat the illegal transfer and
non-return of children abroad. For that purpose, States should
promote the conclusion of bilateral or multilateral agreements or
accession to existing agreements.
3. Bilateral Agreement on Mutual Assistance in Civil
and Criminal Matters between Greece and Albania
- This
Agreement, signed on 17 May 1993, was ratified by Albania pursuant to
Law no. 7760 of 14 October 1993 and by Greece pursuant to Law no.
2311/1995. Articles 2, 3, 23 and 24 of the Agreement provide for the
possibility for the Ministries of Justice of both Contracting Parties
to cooperate in the recognition and execution in their territories of
final judicial decisions given by the authorities of the other Party
in civil, family and commercial matters.
B. Relevant domestic law and practice
- The
Code of Civil Procedure, which governs, inter alia, execution
of final judgments, does not contain any provisions specifically
applicable to the transfer of custody of children. As a result, the
general procedural rules on the execution of judgments are applicable
mutatis mutandis.
- In
cases where a parent’s refusal to comply constitutes a criminal
offence, the matter should be referred to the prosecuting
authorities.
- Failure
to abide by a final decision concerning custody of children may be
punishable under Article 127 of the Criminal Code.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTON
- The
Government contended that the applicant had not exhausted the
domestic remedies at his disposal. They argued that the applicant had
failed to raise the issue of the inactivity of the Bailiffs’
Office with the Vlora District Court in accordance with Article 610
of the Code of Civil Procedure. In the Government’s submission,
that provision afforded individuals the right to contest actions by
the bailiffs before the District Court. Consequently, the applicant
had failed to make use of this remedy despite having addressed his
claims alleging inactivity on the part of the bailiffs to the
Minister of Justice and other authorities.
- The
applicant challenged the effectiveness of the remedy referred to by
the Government. He argued that a further appeal could not have
achieved his principal objective, namely reuniting him with his
daughter. He stated that during the two years that followed the
custody decision he had made several applications to the authorities.
This included the initiation of criminal proceedings for the
abduction of the child, and persistent requests to have the judgment
speedily enforced in his daughter’s interests. Consequently,
the applicant submitted that the Government’s statements were
unsubstantiated.
- The
Court reiterates that the purpose of Article 35 is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are
submitted to it (see, for example, Hentrich v. France,
judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33,
and Remli v. France, judgment of 23 April 1996, Reports
of Judgments and Decisions 1996-II, p. 571, § 33). Thus the
complaint to be submitted to the Court must first have been made to
the appropriate national courts, at least in substance, in accordance
with the formal requirements of domestic law and within the
prescribed time-limits. Nevertheless, the only remedies that must be
exhausted are those that relate to the breaches alleged and at the
same time are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness; it falls to the respondent State to establish that
these various conditions are satisfied (see, in particular, Vernillo
v. France, judgment of 20 February 1991, Series A no. 198, pp.
11-12, § 27, and Akdivar and Others v. Turkey,
judgment of 16 September 1996, Reports 1996-IV, pp.
1210-11, §§ 65-68).
- The
Court notes that the applicant complained that the authorities had
failed to take the necessary measures to identify his daughter’s
whereabouts in order to comply with the custody decision in his
favour.
- The
applicant obtained a writ for the enforcement of the judgment of 4
February 2004, in accordance with the requirements of domestic civil
procedure, but the bailiffs were unable to enforce it since the
applicant’s daughter was no longer in Albania.
- The
Court finds that the Government have failed to substantiate their
argument that the remedy referred to is either available or adequate
to secure redress for the alleged breaches.
- Furthermore,
the Court observes that in a similar case against Albania it found
that the Albanian legal system was organised in a manner that did not
provide effective remedies against actions by the bailiffs, since the
Constitutional Court considered that it lacked jurisdiction to
determine claims concerning enforcement proceedings and thus
systematically declared them inadmissible (see Qufaj Co. Sh.p.k.
v. Albania, no. 54268/00, § 41, 18 November 2004). In
any event, it was for the authorities to ensure the execution of the
court decision since it is they who have the necessary legal means
and resources to discover the whereabouts of the child and to secure
her return. In the circumstances, the applicant could not be expected
to make repeated overtures to the bailiffs or to complain about their
inactivity to a court in order to have the judgment implemented.
- Thus,
the Court concludes that, at the relevant time, the remedies referred
to by the Government did not offer reasonable prospects of success to
the applicant.
- Accordingly,
the Government’s preliminary objection must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the inefficiency of the Albanian
authorities in failing to take the necessary measures to reunite him
with his daughter in compliance with a final decision had violated
his right to respect for family life as provided in Article 8 of the
Convention, which reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
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
1. The parties’ submissions
- The
applicant complained that the authorities had neglected to make the
efforts that could normally be expected of them to ensure that his
rights were respected. He further alleged that the failure of the
authorities to involve the Greek authorities in helping to discover
the whereabouts of his daughter was based on their assumption that
F.M. and her current husband were unlawfully resident in Greece and
not on any established facts.
- The
Government contested the applicant’s arguments. They maintained
that, in accordance with the positive obligation enshrined in Article
8 of the Convention, the authorities had taken all possible steps at
their disposal to reunite the applicant with his daughter. They
observed that approximately 500,000 Albanian nationals lived in
Greece and that half of them resided there illegally. The Government
could not therefore be held responsible for the failure of the
applicant to give precise details of his daughter’s whereabouts
and to request an urgent measure to be taken before F.M. left Albania
taking the child with her. The Government maintained that since no
precise address had been given for the child and her mother in
Greece, the use of the instruments foreseen in the bilateral
agreement between Albania and Greece had been ineffective (see
paragraph 33 above).
2. The Court’s assessment
(a) General principles
- The
Court reiterates that the essential object of Article 8 is to protect
the individual against arbitrary action by public authorities. There
are in addition positive obligations inherent in effective “respect”
for family life. In both contexts regard must be had to the fair
balance that has to be struck between the competing interests of the
individual and of the community as a whole; and in both contexts the
State enjoys a certain margin of appreciation (see Keegan v.
Ireland, judgment of 26 May 1994, Series A no. 290, p. 19,
§ 49; Ignaccolo-Zenide v. Romania, no. 31679/96,
§ 94, ECHR 2000-I; Iglesias Gil and A.U.I. v.
Spain, no. 56673/00, § 49, ECHR 2003-V; and
Sylvester v. Austria, no. 36812/97, 40104/98, § 51,
24 April 2003).
- In
relation to the State’s obligation to take positive measures,
the Court has repeatedly held that Article 8 includes a parent’s
right to the taking of measures with a view to his being reunited
with his child and an obligation on the national authorities to
facilitate such reunion (see, among other authorities,
Ignaccolo-Zenide, cited above, § 94; Iglesias Gil and
A.U.I., cited above, § 48; and Nuutinen v.
Finland, no. 32842/96, § 127, ECHR 2000-VIII).
- In
cases concerning the enforcement of decisions in the sphere of family
law, the Court has repeatedly held that what is decisive is whether
the national authorities have taken all necessary steps to facilitate
the execution as can reasonably be demanded in the special
circumstances of each case (see Hokkanen v. Finland, judgment
of 23 September 1994, Series A no. 299-A, p. 22, § 58;
Ignaccolo-Zenide, cited above, § 96; Nuutinen,
cited above, § 128; and Sylvester, cited above, §
59).
- In
cases of this kind the adequacy of a measure is to be judged by the
swiftness of its implementation, as the passage of time can have
irremediable consequences for relations between the child and the
parent who does not live with him or her. The Court notes that
Article 11 of the Hague Convention on the Civil Aspects of
International Child Abduction of 25 October 1980 (to which
Albania is not a State Party) requires the judicial or administrative
authorities concerned to act expeditiously in proceedings for the
return of children and any inaction lasting more than six weeks may
give rise to a request for a statement of reasons for the delay (see
Ignaccolo-Zenide, cited above, § 102).
- The
Court has also held that although coercive measures against children
are not desirable in this sensitive area, the use of sanctions must
not be ruled out in the event of unlawful behaviour by the parent
with whom the children live (see Ignaccolo-Zenide, cited
above, § 106).
- The Court reiterates that the Convention must be
applied in accordance with the principles of international law, in
particular with those relating to the international protection of
human rights (see Streletz, Kessler and Krenz v. Germany [GC],
nos. 34044/96, 35532/97 and 44801/98, § 90,
ECHR 2001-II, and Al-Adsani v. the United Kingdom
[GC], no. 35763/97, § 55, ECHR 2001-XI). Consequently,
the Court considers that the positive obligations that Article 8 of
the Convention lays on the Contracting States in the matter of
reuniting a parent with his or her children must be interpreted in
the light of the Hague Convention of 25 October 1980 (see
Ignaccolo-Zenide, cited above, § 95).
(b) Application of the general principles to the
present case
- The
Court notes, firstly, that it is common ground that the relationship
between the applicant and his daughter falls within the sphere of
family life under Article 8 of the Convention.
- The
events under consideration in this case, in so far as they give rise
to the responsibility of the respondent State, clearly amounted to an
interference with the applicant’s right to respect for his
family life, as the failure to enforce the custody decision impaired
his enjoyment of his daughter’s company.
- Notwithstanding
that according to the latest developments the custody proceedings in
question have been reopened and are still pending, the Court can but
note that the custody judgment of 4 February 2004 had been valid
and remained unenforced for approximately two years. Accordingly the
Court must determine whether the national authorities took necessary
and adequate steps to facilitate the enforcement of the judgment at
issue.
- In
the present case the Court observes that the proceedings to enforce
the decision in the applicant’s favour have been pending since
April 2004. It observes at the outset that this situation is not in
any way attributable to the applicant, who has approached the
national authorities to put an end to it and has regularly taken
steps to secure the return of his daughter.
- It
was only in April 2005, more than one year after the adoption of the
custody decision, that the bailiffs requested the police to transmit
information to them about the whereabouts of F.M. and her daughter.
While these attempts to enforce the decision all took place within a
period of four months in 2005, the same diligence cannot be observed
in relation to the crucial period immediately following the custody
decision. As noted above, it was not until January 2005 that the
bailiffs began to investigate the whereabouts of F.M. It is further
to be noted that no steps were taken after May 2005.
- The
Court notes that no satisfactory explanation has put forward to
justify those delays. Similarly, no explanation has been provided by
the Government for the total inactivity of the authorities once they
had ascertained that F.M. was living in Greece. It is to be observed
in this connection that both the applicant and F.M.’s family
had informed the authorities, including at the custody hearing, that
F.M. was living in Athens as an economic migrant.
- The
Court considers that the Government’s argument about the
illegal status of F.M. in Greece is speculative. The authorities took
no steps to try to ascertain the whereabouts of F.M. and her daughter
from the Greek authorities, a possibility provided for by the
bilateral agreement between the two countries.
- The
Government alleged that the failure to enforce the decision in
question resulted from the fact that the child was no longer in
Albania, a situation which had also been caused in part by the
applicant’s failure to apply for urgent measures during the
custody proceedings.
64. However,
it appears that the applicant’s attempts to inform the
authorities of the risk of the child’s abduction had gone
unheeded. The Court considers that the applicant’s omission to
request an interim measure cannot be taken to absolve the authorities
from their obligations in the matter of execution of judgments, since
it is they who exercise public authority and have the means at their
disposal to overcome problems in the way of execution. Moreover, the
applicant could not be blamed for not having addressed requests to
the Greek courts since the bilateral agreement on the matter
expressively required the involvement of the Ministries of Justice of
both countries for the enforcement of custody judgments in their
territory (see paragraph 33 above). As noted previously, the
Government have not explained to the Court’s satisfaction what
measures, if any, they took under that agreement to secure the return
of the applicant’s daughter from Greece or at least to trace
the whereabouts of F.M.
- The
Court further observes that the wide range of legislative measures
that have been implemented by the Albanian Government in order to
comply with the rule of law as well as European and international
treaties, do not include any effective measure for securing the
reunion of parents with their children in a situation such as the
applicant’s. In particular, there is no specific remedy to
prevent or punish cases of abduction of children from the territory
of Albania (see paragraphs 34 et seq. above). At present, Albania is
not a State Party to the above-cited Hague Convention and it has not
yet implemented the UN Convention on the Rights of the Child of
20 November 1989 (see paragraphs 31 and 32 above).
- The
Court recalls that the European Convention on Human Rights does not
impose on States the obligation to ratify international conventions.
However, it does require them to take all necessary measures of their
choosing to secure the individual’s rights guaranteed by
Article 8 of the Convention and in particular to secure the reunion
of parents with their children in accordance with a final judgment of
a domestic court.
- Irrespective
of the non-ratification by Albania of relevant international
instruments in this area, the Court finds that the Albanian legal
system, as it stands, has not provided any alternative framework
affording the applicant the practical and effective protection that
is required by the State’s positive obligation enshrined in
Article 8 of the Convention.
68. In
the circumstances of the instant case, notwithstanding the respondent
State’s margin of appreciation in the matter, the Court
concludes that the efforts of the Albanian authorities were neither
adequate nor effective to discharge their positive obligation under
Article 8.
- There
has accordingly been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the Albanian authorities failed to comply
with a final judgment that granted him custody of his daughter. He
relied on Article 6 § 1 of the Convention, which in its relevant
part reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- 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 the difference in the nature of the interests
protected by Articles 6 and 8 of the Convention. While Article 6
affords a procedural safeguard, namely the “right to a court”
in the determination of one’s “civil rights and
obligations”, Article 8 serves the wider purpose of ensuring
proper respect for, inter alia, family life. The difference
between the purpose pursued by the respective safeguards afforded by
Articles 6 and 8 may, in the light of the particular circumstances,
justify the examination of the same set of facts under both Articles
(see, for instance, McMichael v. the United Kingdom, judgment
of 24 February 1995, Series A no. 307-B, p. 57, § 91, and
Sylvester, cited above, § 76).
- However,
in the instant case and having regard to the finding relating to
Article 8 (see paragraph 69 above), the Court considers that it
is not necessary to examine whether in the instant case there has
been a violation of Article 6 § 1 (see, among other authorities,
Sylvester, cited above, § 77).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 about the authorities’
failure to initiate criminal proceedings against A.C., who, he
alleged, had forged documents that had enabled his former wife to
abduct his daughter. Lastly, with reference to the falsification of
his daughter’s birth certificate, the applicant complained
under Articles 12, 13 and 17, without giving due reasons.
- As to the applicant’s complaint under Article 6
§ 1, the Court reiterates that the right to bring criminal
proceedings against private persons is not guaranteed under the
Convention (see X v. the Federal Republic of Germany, no.
7116/75, Commission decision of 4 October 1976, Decisions and Reports
7, p. 91, and B.Č. v. Slovakia (dec.), no. 11079/02, 14
March 2006 and also Perez v. France [GC], no. 47287/99, § 70,
ECHR 2004 I). It follows that this complaint is incompatible
ratione materiae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be dismissed in
accordance with Article 35 § 4.
- In
so far as the applicant complained of a violation of Articles 12, 13
and 17 of the Convention without giving further details, the Court
considers the matter to be wholly unsubstantiated. This complaint
must therefore be dismissed in accordance with Article 35 §§ 3
and 4 of the Convention as being manifestly ill-founded.
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.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of pecuniary damage,
covering his loss of wages and opportunities, and EUR 15,000 in
respect of non-pecuniary damage for the distress caused as a result
of the failure to enforce the decision reuniting him with his
daughter.
- The
Government contested the applicant’s claim since in their view
the application was inadmissible. They did not submit any arguments
relating to the amounts claimed for pecuniary and non-pecuniary
damage.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
- As
to non-pecuniary damage, the Court sees no reason to doubt that the
applicant suffered some distress as a result of the non-enforcement
of the final judgment at issue and that sufficient just satisfaction
would not be provided solely by the finding of a violation.
- Having
regard to the sums awarded in comparable cases (see, for instance,
Ignaccolo-Zenide, cited above, § 117; Hokkanen,
cited above, p. 27, § 77; see also, mutatis mutandis,
Elsholz v. Germany [GC], no. 25735/94, § 71, ECHR
2000-VIII, and Kutzner v. Germany, no. 46544/99, §
87, ECHR 2002-I), and making an assessment on an equitable basis as
required by Article 41, the Court awards the sum of EUR 15,000
under this head.
B. Costs and expenses
- The
applicant also claimed EUR 17,000 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government did not express any view.
- 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 they have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 10,000 covering costs
under all heads.
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 complaints concerning Article 6
§ 1 (non-enforcement) and Article 8 of the Convention admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 6 § 1 of the Convention;
- 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 the national currency of the respondent
State at the rate applicable on the date of settlement, plus any tax
that may be chargeable:
(i)
EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary
damage;
(ii)
EUR 10,000 (ten thousand euros) in respect of costs and expenses;
(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 12 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
