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]
FIRST
SECTION
CASE OF
STOJAKOVIC v. AUSTRIA
(Application
no. 30003/02)
JUDGMENT
STRASBOURG
9
November 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 Stojakovic v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 19 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30003/02) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Milenko Stojakovic
(“the applicant”), on 7 August 2002.
- The
applicant was represented by Mr M. Poduschka, a lawyer practising in
Perg. The Austrian Government (“the Government”) were
represented by their Agent, Mr F. Trauttmansdorff, Head of the
International Law Department at the Federal Ministry for Foreign
Affairs.
- The
applicant complained, in particular, under Article 6 of the
Convention about the lack of a public oral hearing before a tribunal.
- The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
First Section (Rule 52 § 1).
- By
a decision of 5 July 2005, the Court declared the application partly
admissible.
- The
applicant, but not the Government, filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1944 and lives in Linz.
- Since
1984 the applicant was the head of the Federal Bacteriological
Serological Research Institute (Bundesstaatiche
bakteriologisch-serologische Untersuchungsanstalt) in Linz.
According to the activity profile submitted by the Government the
tasks of the Institute involved
carrying
out of various examinations, namely examinations upon official
request under the relevant Health Acts and bacteriological
examinations of water quality;
research,
collection and transfer of data; assistance to the installation and
maintenance of a notification system concerning certain infectious
diseases; maintenance of a specific network on epidemiological
diseases integrating EU and other international networks;
participation
in international scientific projects and studies;
provision
of general information and advice, such as advice concerning
prevention and transfer of infectious diseases and use of
antibiotics;
assistance
by giving of expert advice in the elaboration of quality standards
for microbiological laboratories, of national recommendations in the
field of hygiene, medical microbiology and preventive medicine and
of epidemic legislation;
representation
of the competent Ministry's department in national and international
expert groups.
- The
applicant, as head of the Institute, was responsible for all tasks
entrusted to it. Under section 3 of the Civil Servants Act
(Beamten-Dienstrechtsgesetz) he was further responsible for
certain matters concerning the regulation of its service, namely the
arrangement of vacation and grant of special leave, and had the
authority to issue decisions (Bescheide) in this regard.
- On
22 November 1999 the Disciplinary Commission at the Ministry for
Work, Health and Social Affairs (Disziplinarkommission beim
Bundesministerium für Arbeit, Gesundheit und Soziales)
found the applicant guilty of having violated his professional
duties under the Non-Discrimination Act
(Bundes-Gleichbehandlungsgesetz) and sentenced him to a fine
of approximately 2,400 euros (EUR). It found that the applicant inter
alia had made statements about some of his employees amounting to
sexual harassment. On 15 June 2000 the Senior Disciplinary Board at
the Ministry for Public Service and Sport (Disziplinaroberkommission
beim Bundesministerium für öffentliche Leistung und Sport)
partly dismissed the applicant's appeal. It reduced the fine to
approximately EUR 1,600. On 4 September 2003 the Administrative
Court dismissed the applicant's complaint.
- In
the meantime, on 31 March 2000, the Federal Minister for Work, Health
and Social Affairs recalled the applicant from his post with
immediate effect (Abberufung mit sofortiger Wirkung) and
transferred him to a post with a lower grade, namely a referee post
at the Ministry for Work, Health and Social Affairs in Vienna.
- Referring
to the applicant's behaviour which was the subject of the pending
disciplinary proceedings, the Federal Minister found that the
applicant had violated his professional duties, and could no longer
be trusted to perform the managerial duties as head of the Institute.
She referred to section 38 of the Civil Servants Act according to
which a transfer can be ordered ex officio in case of
important official interest. At the same time she informed the
applicant that the payment of the extra duty allowance
(Verwendungszulage) granted to him as head of the Institute
was to be discontinued from 1 May 2000.
- On
17 April 2000 the applicant filed an appeal and submitted that the
disciplinary proceedings were still pending.
- On
21 June 2000 the applicant, assisted by his counsel, filed further
submissions. He submitted that the Federal Minister had not made
sufficient findings as to the background in which his statements had
been made and had placed them in the wrong context. He further
contested that he had made one of the statements and requested to
hear a witness in the context of a hearing. He finally argued that
the Senior Disciplinary Board had partly granted his appeal and that
the disciplinary proceedings were still pending. There were,
therefore, no reasons for his transfer.
- On
9 October 2000 the Appeals Commission (Berufungs-kommission)
at the Ministry for Public Service and Sport dismissed the
applicant's appeal without holding a hearing. It noted that the
authority deciding on the transfer did not necessarily need to wait
for the outcome of pending disciplinary proceedings but could assess
itself whether a civil servant had violated his professional duties
and whether such a violation requested a transfer. The applicant's
arguments concerned mainly the question of his guilt, which was the
subject of the disciplinary proceedings. Its task was to ascertain
whether the applicant's transfer was objectively necessary. It
nevertheless examined and dismissed the applicant's arguments as to
the alleged justifying context in which the statements had been made.
It further acknowledged that it was in fact not clear whether the
applicant had made one of the statements at issue. However, having
regard to all other statements it confirmed the Federal Minister's
finding that the applicant could no longer be trusted to perform the
tasks of a head of the Institute. In particular that the applicant's
unqualified behaviour had deepened the already existent conflicts and
tensions at work and there was, therefore, an important official
interest which made his transfer to another post necessary.
- On
6 December 2000 the applicant filed a complaint with the
Constitutional Court (Verfassungsgerichtshof). He complained
that the fact that the Appeals Commission had taken its decision
after a private meeting was in violation of his right to court
proceedings under Article 6 of the Convention. Furthermore he alleged
that the Appeals Commission had decided arbitrarily as it had not
duly taken account of his arguments made in the disciplinary
proceedings according to which the proceedings against him had to be
seen in the context of the Ministry's restructuring programme and
were aimed at obliging him to take early retirement.
- On
26 November 2001 the Constitutional Court dismissed the applicant's
complaint. Referring to its case-law it found that rights and
obligations which resulted from an employment as a civil servant
could not be considered as “civil rights” within the
meaning of Article 6 of the Convention. It followed that Article 6
was not applicable to the applicant's case. It further found that
there was no indication of arbitrariness in the proceedings at issue.
- This
decision was served on the applicant's counsel on 13 February 2002.
II. RELEVANT DOMESTIC LAW
- The
relevant rules are contained in the Civil Servants Act. In the
version in force at the material time it provided as follows.
A. Proceedings concerning the transfer of civil
servants
- Section
38 § 1 of the Civil Servants Act (Beamten-Dienstrechtsgesetz)
defines the transfer (Versetzung) of a civil servant as
permanent assignment to another department.
- Under
section 40 § 2 the recall (Abberufung) of a civil servant
is equivalent to a transfer inter alia when the new assignment
has not at least the same grade as the former post.
- According
to section 38 § 2 a transfer can be ordered ex officio in
case of important official interest.
- Under
section 38 § 7a the transfer is to be ordered by decision. The
concerned civil servant can appeal against this decision. His appeal
does not have suspensive effect on the decision.
- Section
121 of the Salaries Act (Gehaltsgesetz) provides that a civil
servant is entitled to an extra duties allowances (Verwendungszulage)
if he permanently has a considerable level of responsibility for the
accomplishment of tasks of general administration and if this level
of responsibility exceeds the one which is normally connected with a
position in an equal grade.
- Pursuant
to section 41a § 6 an appeal will be decided upon by the Appeals
Commission (Berufungskommission) established at the Ministry
for Public Service and Sport (Bundesministerium für
öffentliche Leistung und Sport).
- Section
41a regulates the composition of the Appeals Commission. Its
paragraph 3 provides that its chair and his/her substitute are
judges, the other members legally trained civil servants whereof one
half are representatives of the employer and the other half are
representatives of the employee. The members are appointed by the
Federal President on a proposal of the Federal Government
(Bundesregierung) or by the President of the National Assembly
(Nationalratspräsident). Representatives of the employees
are in principle nominated by the Union of Civil Servants
(Gewerkschaft Öffentlicher Dienst) and, in case the Union
makes no nomination within four weeks, by the Minister for Public
Service and Sport.
- The
term of office is five years.
- Section
41c provides that the Appeals Commission decides in formations
(Senate) consisting of three members, the chair or his/her
substitute, one civil servant representing the employer and one civil
servant representing the employee. The civil servant representing the
employer has to be employed at the Federal Ministry of the respective
complainant.
- The
chair of the Appeals Commission has to fix, for one year in advance,
the number of the formations, their members and the sequence in which
members have to step in if a member is incapacitated. The chair
further allocates business.
- Section
41d § 1 provides that the Appeals Commission decides by a
majority of votes. Its paragraph 2 provides that the members of the
Appeals Commission are not bound by any instructions in the exercise
of their functions.
- The
Appeals Commission's decisions are not subject to an appeal to the
Administrative Court. They are, however, subject to a complaint to
the Constitutional Court.
B. Hearings before the Appeals Commission
- Hearings
before the Appeals Commission are governed by the Code of General
Administrative Procedure (Allgemeines
Verwaltungsverfahrens-gesetz). Article 40 § 1 of this Act
provides as follows:
“Oral hearings shall be held in the presence of
all known parties and the necessary witnesses and experts...
- It
is the consistent practice of administrative authorities to hold oral
hearings in camera unless the law provides otherwise, as it is
commonly understood that the principle of publicity does not extend
to administrative proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention about
the lack of a public oral hearing before a tribunal in the
proceedings concerning his recall from the post as head of the
Institute and transfer to another post. Article 6 § 1, as far as
relevant, reads a follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
... by an independent and impartial tribunal established by law.”
1. Applicability of Article 6 § 1
- Referring
to the Pellegrin case (Pellegrin v. France [GC], no. 28541/95,
§§ 64, 66, ECHR 1999-VIII), the Government argued that
Article 6 does not apply to the impugned proceedings. They
referred to the tasks of the Federal Bacteriological-Serological
Research Institute as listed in its activity profile which they
submitted. In particular they stressed the Institute's tasks as
regards the maintenance of a notification system concerning certain
infectious diseases, the Institute's assistance in the elaboration of
the relevant legislation and recommendations, and the representation
of the competent Ministry's department in national and international
expert groups. They further pointed out the applicant's degree of
responsibility as head of the Institute and referred in particular to
his authority to issue decisions (Bescheide) in accordance
with Section 3 of the Civil Servants Act. They further maintained
that the applicant had received an extra duties allowance as he had
had a considerable level of responsibility for the accomplishment of
tasks of general administration.
- The
applicant contested the Government's submissions. He asserted that
his activity as head of the Federal Bacteriological-Serological
Research Institute consisted mainly in the carrying out of medical
examinations and that he had no participation in the exercise of
public authority. He maintained that his responsibilities as head of
the Institute were comparable of those of a director of a private
institution.
- The
Court recalls that for Article 6 § 1, in its “civil”
limb, to be applicable there must be a dispute over
a “right” that 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. Moreover, the outcome of the proceedings must be directly
decisive for the civil right
in question.
- In
order to determine the applicability of Article 6 § 1 to public
servants, whether established or employed under contract, the Court
adopts a functional criterion based on the nature of the employee's
duties and responsibilities. The only disputes excluded from the
scope of Article 6 § 1 of the Convention are
those which are raised by public servants whose duties typify the
specific activities of the public service in so far as the latter is
acting as the depositary of public authority responsible for
protecting the general interests of the State or other public
authorities. In practice, the Court will ascertain, in each case,
whether the applicant's post entails – in the light of the
nature of the duties and responsibilities appertaining to it –
direct or indirect participation in the exercise of powers conferred
by public law and duties designed to safeguard the general interests
of the State or of other public authorities. (see, as a recent
authority, Martinie v. France [GC], no. 58675/00, § 26,
12 April 2006 with further references to Pellegrin cited
above).
- In
order to assess whether Article 6 of the Convention is applicable to
the present proceedings, the Court will therefore, rather than to the
special nature of the dispute between the applicant and the State,
have regard to the applicant's post, the nature of his duties and the
responsibilities attached to the post (see Martinie v. France,
cited above, § 30).
- The
Court notes that the applicant was the head of the Federal
Bacteriological Serological Research Institute. The tasks of this
institution were in essence restricted to the carrying out of various
examinations, the collecting and transfer of data and the giving of
expert advice but did not include the taking of any binding decisions
or orders to the general public. There is further nothing to indicate
that the expertise required from the Institute was more than of a
purely technical nature or that the Institute had any participation
in the State's diplomatic missions in foreign fora. The Court
finds that the applicant's responsibility and authority as head of
the Institute did not exceed those of a director of a comparable
private institution. The Court, therefore, considers that the nature
of the applicant's duties and responsibilities as head of the Federal
Bacteriological Serological Research Institute did not entail the
exercise of any portion of the State's sovereign power unless this
concept is to be construed broadly. However, the correct approach is
to adopt a restrictive interpretation of the exceptions to the
safeguards afforded by Article 6 § 1 (see Martinie, cited
above, § 30).
- It
follows that Article 6 of the Convention is applicable to the present
case.
2. Compliance with Article 6 § 1
- The
Government, referring to the relevant provisions of the Civil
Servants Act concerning the Appeals Commission, asserted that this
body qualifies as a tribunal within the meaning of Article 6 § 1
of the Convention. However, the applicant had waived his right to a
public oral hearing as he had failed to request such a hearing before
the Appeals Commission or the Constitutional Court. His statement
that the conduct of an oral and public hearing would have been
impossible in the light of the legal situation was incorrect.
Although the domestic law governing the proceedings at issue did not
explicitly provide for public hearings before the Appeals Commission,
an interpretation of the relevant provisions in conformity with the
Federal Constitution would nevertheless have obliged the Appeals
Commission to hold one if this was necessary under Article 6 of the
Convention. The applicant's waiver did not appear disproportionate as
the relevant facts could be adequately established and determined on
the basis of the case-file. The applicant basically acknowledged
having made the incriminating statements and described the escalating
tensions with the Institute. The Appeals Commission, in any event,
merely had to take account of objective facts. Moreover, the
exclusion of the public was justified in employment disputes between
the authorities and civil servants because of their duty to secrecy
about the performance of official activities. This was all the more
the case in the present circumstances as the proceedings at issue
concerned merely incidents of an intimate nature which happened
within the applicant's Institute.
- The
applicant contested the Government's view. He contested that he had
waived his right to a hearing even if he had not explicitly requested
that an oral hearing be held. In any event, there had been no
legislation providing for a public oral hearing before the Appeals
Commission in the present case. He contested that his case could be
decided merely on the basis of the case file. Furthermore, there was
no valid reason why a necessary hearing in his case should not be
public. The Appeals Commission should have held a hearing in order to
comply with the requirements of Article 6 § 1. Such a hearing
could have possibly led to a more favourable outcome of the
proceedings for him as evidence could have been taken and the Appeals
Commission could have assessed the credibility of witnesses. The
applicant submitted, furthermore, that two members of the Appeals
Commission were civil servants who were bound by instructions from
his former employer, and can, therefore, not be regarded as
independent and autonomous. The applicant finally referred to the
alleged background of his transfer, namely the Ministry's
restructuring programme which would oblige him to take early
retirement.
- The
Court will first examine the question whether the applicant's case
was examined by a “tribunal” within the meaning of
Article 6 § 1 of the Convention. The Court observes in this
regard that the Federal Minister for Work, Health and Social Affairs,
dealing with the applicant's case at first instance, is an
administrative authority. Furthermore, the Constitutional Court,
dealing with the applicant's case at last instance, does not have, in
the circumstances, the required scope of review in order to
constitute a “tribunal” within the meaning of Article 6 §
1 of the Convention (see Zumtobel v. Austria
judgement of 21 September 1993, Series A no 268-A, p. 13, §
30, and Ortenberg v. Austria, judgement of 25 November 1994,
Series A no. 295-B, p.50, § 32). No appeal could be brought
before the Administrative Court in the present proceedings. It
therefore remains to be examined whether the Appeals Commission which
decided at second instance qualified as “tribunal” for
the purposes of Article 6 § 1 of the Convention.
- According
to the Court's case-law a "tribunal" is characterised in
the substantive sense of the term by its judicial function, that is
to say determining matters within its competence on the basis of rule
of law and after proceedings conducted in a prescribed manner. It
must also satisfy a series of further requirements - independence, in
particular of the executive; impartiality; duration of its members'
terms of office; guarantees afforded by its procedure - several of
which appear in the text of Article 6 § 1 itself (see Baischer
v. Austria, no. 32381/96, § 23, 20 December 2001 with a
reference to Belilos v. Switzerland, judgment of 29 April
1988, Series A no. 132, p. 29, § 64).
- The
Court notes that, under the relevant provisions of the Civil
Servant's Act, the Appeals Commission established at the Ministry
decides in formations consisting of three members: a judge as a
chairman, a legally trained civil servant from the complainant's
department as the representative of the employer and a legally
trained civil servant nominated by the Union of Civil Servants as
representative of the employee.
- The
Court observes that the mere fact that the interests of both the
employer and of the employee are represented in the composition of a
court cannot be considered to be contrary to Article 6 § 1, if
no imbalance between what might be seen as conflicting interests
arises in the case concerned (see, Siglfirđingur ehf v.
Iceland (dec.) no. 34142/96, 7 September 1999). There is no
indication of any imbalance in the present case.
- The
Court further notes that the Appeals Commission's members are
appointed for a term of five years and are not bound by any
instruction in the exercise of their functions. Having regard to this
latter point, the Court cannot accept the applicant's argument that
the members of the Appeals Commission dealing with his case were
bound by instructions of his former employer, namely the Federal
Minister for Work, Health and Social Affairs.
- Finally,
having regard to its previous case-law relating to comparable bodies
(see for instance, Stallinger and Kuso v. Austria,
judgment of 23 April 1997, Reports of Judgments and Decisions
1997 II, §§ 34-37, relating to
land reform boards and Rozsa v.
Austria (dec.), no. 67950/01, 6 April 2004, concerning the
trial boards and appeals boards for tax offences), the Court
considers that the Appeals Commission has to be regarded as a
tribunal within the meaning of Article 6 § 1.
51. The
Court, therefore, turns to the issue of the lack of a public oral
hearing before this tribunal. The Government argued that the
applicant waived his right to a public hearing. The applicant
contested this and stated that, in any case, a hearing would not have
been public according to the relevant provisions of domestic law.
- The
Court notes that the applicant, in his submissions of 21 June 2000,
requested the Appeals Commission to hear a witness in the context of
a hearing. Furthermore, in his complaint to the Constitutional Court,
he complained that the Appeals Commission had taken its decision
after a private meeting. Thus, the Court cannot find that the
applicant waived his right to a hearing.
- The
Court further notes that, according to its established case-law, the
applicant was in principle entitled to a hearing before the first and
only tribunal examining his case, unless there were exceptional
circumstances which justified dispensing with such a hearing (see,
for instance, Fredin
v. Sweden (no.2), judgment of 23
February 1994, Series A no. 283-A,
pp. 10-11, §§ 21 22;
Stallinger and Kuso, cited above, pp. 679 80, §
51, Allan Jacobsson v. Sweden (no. 2), judgment of 19 February
1998, Reports 1998-I, p. 168, § 46). The Court has
accepted such exceptional circumstances in cases where proceedings
concerned exclusively legal or highly technical questions (see
Schuler-Zgraggen v. Switzerland, judgment of 24 June
1993, Series A no. 263, p. 19-20, § 58; Varela Assalino v.
Portugal (dec.), no. 64336/01, 25 April 2002;
Speil v. Austria (dec.) no. 42057/98, 5 September
2002).
- The
Court considers, however, that there were no such exceptional
circumstances which would have justified dispensing with a hearing in
the applicant's case.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention in respect of the applicant's right to a hearing before
the Appeals Commission. In the view of the absence of a hearing in
the present case, the Court does not consider it necessary to examine
the applicant's further argument that under the domestic law a
hearing, if held, would in any case not have been public.
II. 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
- In
respect of pecuniary damage the applicant claimed 223,413.75 euros
(EUR) because of financial losses suffered due to his transfer until
now and, in eventu, EUR 359,406.16 for financial losses
suffered until his retirement and due to his reduced retirement
allowances. He further requested that he be reinstated in his former
post as head of the Linz Federal Bacteriological Serological Research
Institute. Finally, he claimed reimbursement of EUR 1,600 as regards
the fine he had been ordered to pay in disciplinary proceedings.
- The
Government contested these claims.
- The
Court reiterates that it cannot speculate what the outcome of the
proceedings would be if they had been in conformity with Article 6 of
the Convention. Moreover, the Court cannot discern any casual link
between the damage claimed and the violation found. Accordingly, it
dismisses the applicant's claims.
B. Costs and expenses
- The
applicant claimed a total of EUR 4,150.88 for costs related to the
domestic proceedings whereof EUR 2,089.41 relates to the costs of the
transfer proceedings and EUR 2,061.47 to the costs incurred in other
proceedings. He further claimed EUR 7,545.42 including VAT for the
costs incurred in the proceedings before the Court.
- The
Government contested the claim as regards the costs of the domestic
proceedings and submitted that the cost claim as regards the
Strasbourg proceedings was excessive.
- 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, part of the domestic proceedings costs
claimed concern other proceedings than those at issue before the
Court. As regards the costs claimed for the proceedings at issue,
namely the transfer proceedings, the applicant has not substantiated
that specific costs were incurred in relation to the demand for a
public oral hearing and the complaint that no such hearing had taken
place. Consequently, the Court dismisses the applicant's respective
claims.
- As
regards the costs and expenses incurred before the Court, the Court
notes that the applicant, who was represented by counsel, did not
have the benefit of legal aid. Making an assessment on an equitable
basis, the Court finds it reasonable to award EUR 3,500 in this
regard. This amount includes VAT.
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
1. Holds that Article 6 is applicable to the present
proceedings;
2. Holds that there has been a violation of Article 6 §
1 of the Convention in respect of the applicant's right to a hearing
before the Appeals Commission;
- 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 3,500 (three thousand five hundred 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
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 9 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
