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FIFTH
SECTION
CASE OF
SAAREKALLAS OÜ v. ESTONIA
(Application
no. 11548/04)
JUDGMENT
STRASBOURG
8
November 2007
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 Saarekallas OÜ v. Estonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 9 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11548/04) against the
Republic of Estonia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by Saarekallas OÜ, a private limited company registered in
Estonia (“the applicant company”), on 4 March 2004. Among
the original applicants there were also seven natural persons and two
unregistered non-profit organisations.
- The
applicant company was represented by Mr M. Fredman, a lawyer
practising in Helsinki. The Estonian Government (“the
Government”) were represented by their Agent, Ms M. Hion,
Director of the Human Rights Division of the Legal Department of the
Ministry of Foreign Affairs.
- On
15 May 2006 the Court
declared the application partly inadmissible and decided to
communicate the applicant company's complaints concerning the length
of the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company is a private limited company (osaühing),
registered in Estonia.
A. Request by K. for interlocutory measures
- On
19 October 1998, T., the lawyer of K., lodged a request with the
Saare County Court (maakohus) for securing a claim by K.
against A. and P. According to K., she had been in the possession of
six shares (corresponding to 50 per cent of the share capital) of
Kallas AS, a public limited company, which had been unlawfully
transformed into the applicant company, Saarekallas OÜ. The
defendants had been entered in the commercial register as members of
the management board of the company. K. submitted that P. intended to
sell the company's buildings at 26 and 26a Pikk Street in
Kuressaare. She requested the court to enter a notation in the
Buildings Register prohibiting the disposal of the buildings
concerned.
- On
the same date the County Court granted the request.
- On
26 October 1998 the applicant company appealed against the
interlocutory measure.
- On
23 November 1998 the County Court annulled the interlocutory measure,
as the plaintiff had not lodged the claim with the County Court
within a one-month period. This decision became final on
4 December 1998.
- On
14 December 1998 the Tallinn Court of Appeal (ringkonnakohus)
took a decision concerning the appeal against the interlocutory
measure. It noted that, although the appeal was well-founded,
there was no need to quash the challenged decision as it had already
been annulled.
B. Main proceedings against the applicant company
- On
11 December 1998, K.'s lawyer lodged a claim against the applicant
company with the County Court. The plaintiff alleged that she had
been a shareholder of Kallas AS, which had been transformed into the
applicant company. However, she had not been entered on the list of
shareholders of the applicant company after the transformation. She
alleged that the P. was about to sell the buildings belonging to the
applicant company and that this would be in breach of her rights. She
requested that the management board of the applicant company be
obliged to transfer to her a share in the value of 5,000 Estonian
kroons (EEK) and that a notation prohibiting the disposal of the
buildings at 26 and 26a Pikk Street be entered in the Buildings
Register.
- On
14 December 1998 the County Court again ordered that a notation
prohibiting the disposal of the buildings at 26 and 26a Pikk Street
be entered in the Buildings Register in order to secure K.'s claim.
- The
County Court scheduled ten preliminary hearings from 30 March
1999 to 9 May 2000. They were adjourned for various reasons: because
of the negotiations between the parties to settle the case, the
plaintiff's requests to require documents from the applicant company,
the parties' or their representatives' absence, the plaintiff's
applications to amend the object of the action and to bring
additional claims.
- On
9 May 2000 the judge hearing the case made a ruling concerning her
withdrawal. The County Court had received copies of several petitions
whereby the applicant company's statutory representatives had
requested that criminal proceedings be initiated against the judge
concerned and the chairperson of the Saare County Court, since they
had, allegedly, continuously committed serious crimes against the
petitioners, involving denial of human existence, violence and crimes
against human rights.
- On
3 July 2000 another judge of the County Court made a ruling
concerning her withdrawal, since the representatives of the applicant
company had made several petitions for initiating criminal
proceedings also against her. On 5 September 2000 two further judges
ruled on their withdrawal.
- By
a letter of 6 September 2000 the chairperson of the Saare County
Court requested the chairperson of the Tallinn Court of Appeal to
change the jurisdiction over the matter, since all of the judges of
the County Court had withdrawn from hearing the case. The chairperson
of the Court of Appeal considered the withdrawals unjustified and
returned the case to the Saare County Court.
- A
preliminary hearing of the case was scheduled for 21 February 2001.
However, on 20 February 2001 the plaintiff's lawyer informed the
County Court that K., the plaintiff, had died on 4 February 2001.
He requested that the proceedings be suspended. On 21 February
2001 the County Court decided to suspend the proceedings until
ascertaining the identity of the plaintiff's successor.
- On
3 April 2002 the County Court resumed the proceedings and invited R.,
K.'s heir, to act as the plaintiff.
- On
30 April 2002 the County Court held a preliminary hearing.
R. submitted to the court a request to amend the object of the
action. N., member of the management board of the applicant company,
asserted that he had not been authorised to represent the company.
- On
5 June 2002 the court held a preliminary hearing. N., a member of the
management board of the applicant company, again asserted that he had
not been authorised to represent the company. The court agreed and
decided that he could not take part in the proceedings. It heard the
plaintiff's lawyer and scheduled a new hearing for 13 August
2002.
- On
13 August 2002 the court again held a preliminary hearing. There
appeared the plaintiff's lawyer; the applicant company's
representatives lacked due authorisation to act on its behalf. The
court concluded the preliminary hearing and scheduled the trial
hearing for 23 September 2002.
- On
23 September 2002 the County Court held a trial hearing in the
presence of R. and his lawyer. N. was also present but had no
authority to represent the applicant company.
- The
County Court delivered its judgment on 14 October 2002. R.'s claim
was granted in part. The court obliged the management board of the
applicant company to enter R. on the list of its shareholders with a
share of a nominal value of EEK 5,000.
- Both
the applicant company and R. appealed against the judgment of the
County Court. On 21 April 2003 the Tallinn Court of Appeal quashed
the County Court's judgment and remitted the case back to it for
fresh examination, since Tradeco Enterprises Inc, a shareholder of
the applicant company, had not been involved in the proceedings.
- On
10 September 2003 the Supreme Court (Riigikohus) refused the
applicant company leave to appeal.
- On
15 January 2004 the Saare County Court decided to resume the
proceedings and to invite Tradeco Enterprises Inc to participate
therein as a third party. It requested the plaintiff's lawyer to
provide evidence concerning the status of Tradeco Enterprises Inc,
including on whether this company had been dissolved and, if so,
whether there was a successor.
- In
the spring of 2004 T., the plaintiff's lawyer, and the
representatives of the applicant company were unsuccessfully seeking
an opportunity to sell the buildings on Pikk Street.
- The
County Court held a preliminary hearing on 14 December 2004 in the
presence of the plaintiff's representative and N. who had no
authority to represent the applicant company. Tradeco Enterprises
Inc, registered in Delaware, had refused the summonses sent by the
court. The hearing was adjourned at the request of the plaintiff's
lawyer in order to find out whether Tradeco Enterprises Inc was an
existing legal entity.
- On
3 February 2005 the plaintiff's lawyer informed the court that the
parties had started negotiations to settle the case. By June 2005 it
became evident that no agreement could be reached.
- On
3 July 2005 and 25 January 2006 the County Court made requests to the
authorities of the State of Delaware to receive information on
Tradeco Enterprises Inc.
- On
14 February 2006 the County Court received an agreement concluded
between the plaintiff and the defendant company whereby they settled
the case. On the same date, the County Court approved the settlement
and annulled its interlocutory measure applied on 14 December 1998
to secure the action. The plaintiff and the applicant company
declared that they abandon their right to appeal against the County
Court's decision whereby the settlement was confirmed.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
- The relevant provisions of the Constitution of the
Republic of Estonia (Eesti Vabariigi põhiseadus) read
as follows:
Article 13
“Everyone has the right to the protection of the
state and of the law. ...
The law shall protect everyone from the arbitrary
exercise of state authority.”
Article 14
“The guarantee of rights and freedoms is the duty
of the legislative, executive and judicial powers, and of local
governments.”
Article 15
“Everyone whose rights and freedoms are violated
has the right of recourse to the courts. Everyone has the right,
while his or her case is before the court, to petition for any
relevant law, other legislation or procedure to be declared
unconstitutional.
The courts shall observe the Constitution and shall
declare unconstitutional any law, other legislation or procedure
which violates the rights and freedoms provided by the Constitution
or which is otherwise in conflict with the Constitution.”
Article 25
“Everyone has the right to compensation for moral
and material damage caused by the unlawful action of any person.”
B. The Code of Civil Procedure
- The pertinent provisions of the Code of Civil
Procedure (Tsiviilkohtumenetluse seadustik), applicable until
31 December 2005, read as follows:
Article 3 – Purpose of civil procedure
“The purpose of civil procedure is to hear and
adjudicate civil matters justly and expeditiously.”
Article 149 – Return of statement of claim
“(1) A court shall decide on the
acceptance of a statement of claim within twenty days after the
filing thereof.
...”
Article 169 – Preliminary hearing
“(1) If a court holds a preliminary
hearing, it shall be held within two months after the filing of the
statement of claim. A court shall summon
the participants in a proceeding to a preliminary hearing.
...”
Article 170 – Notification of court session
“...
(3) If possible, a court session shall be
held by the court within three months after the filing of a statement
of claim.
...”
Article 177 – Adjournment of hearing of matter
“...
(3) A court shall justify the adjournment of
the hearing of a matter. The reason shall be recorded in the minutes
of the court session. A new court session shall be held within a
reasonable period of time. A court shall determine the time and place
of a new court session, taking into consideration the opinions
of the participants in the proceeding.
(4) If a court adjourns the hearing of a
matter for more than three months, it shall make a written ruling.
(5) A participant in the proceeding may file
an appeal against such ruling if the participant in the proceeding
finds that the hearing of the matter is adjourned for an unreasonably
long period of time. A ruling of a court of appeal concerning an
appeal against such ruling is not subject to appeal.”
Article 215 – Appeal against ruling on
suspension of proceeding
“An appeal may be filed against a ruling on the
suspension of a proceeding. A ruling of a court of appeal concerning
an appeal against such ruling is not subject to appeal.”
Article 297 - Right of appeal
“...
(3) The parties and other participants in a
proceeding may file an appeal against a ruling of the court of first
instance if the right to file an appeal against a ruling is
prescribed in this Code, or if the court ruling hinders the further
conduct of the proceeding.
...”
C. Case-law of the Supreme Court
- In a decision of 13 June 1997, the Administrative Law
Chamber of the Supreme Court (case no. 3-3-1-18-97) held that if no
specific deadline had been provided for, the public authorities –
the Privatisation Agency in the case at hand – had to perform
actions within reasonable time. Otherwise, Article 13 § 2 of the
Constitution would be violated. It found that administrative courts
were authorised to examine such complaints under Article 3 of the
Code of Administrative Court Procedure (Halduskohtumenetluse
seadustik).
- In
a judgment of 22 December 2000, the plenary Supreme Court (case no.
3-3-1-38-00) noted that a right to effective proceedings for one's
protection was guaranteed under Articles 13, 14 and 15 of the
Constitution and Article 13 of the Convention. It would be contrary
to Article 15 § 1 of the Constitution to exclude some basic
rights from effective judicial protection. The Supreme Court
concluded that administrative courts were authorised, under Article 3
of the Code of Administrative Court Procedure, to examine whether
certain procedural measures in criminal proceedings – in that
case search and seizure – infringed the fundamental rights and
freedoms of an individual.
- In
a judgment of 17 April 2001, the Administrative Law Chamber of the
Supreme Court (case no. 3-3-1-10-01) held that even in cases where
a person accused of a criminal offence had been removed from his
or her office in accordance with the law but he or she was
subsequently acquitted or the criminal proceedings against him or her
were discontinued, he or she had to have a possibility of obtaining
just compensation from the State. The court noted that although the
matter was not regulated by law, this omission could not exclude the
State's responsibility before the individual. It held that in such
cases compensation could be claimed on the basis of general
principles of law even when no specific legal provisions existed.
- In a judgment of 6 June 2002, the Administrative Law
Chamber of the Supreme Court (case no. 3-3-1-27-02) found, relying on
Articles 13 § 2 and 25 of the Constitution, that unlawful act or
measure – including inaction or delay – in performing
public functions served as grounds for compensation for damage.
Article 25 of the Constitution was considered directly applicable.
This case concerned a delay by municipal authorities in privatisation
proceedings.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION AS TO THE
ALLEGED LACK OF AUTHORITY OF THE REPRESENTATIVES OF THE APPLICANT
COMPANY TO ACT ON ITS BEHALF
- The
Government argued that P. and K., who had signed the application to
the Court on behalf of the applicant company, were not entered in the
commercial register as members of the management board of the company
and, accordingly, they were not authorised to act on its behalf. P.
had been a member of the management board until 28 February 2005.
However, according to the statutes of the applicant company, the
company could be represented by the chairman of the board alone or by
two members of the board together. There was no information that a
chairman of the board had been elected.
- The
applicant company provided a copy of the minutes of the shareholder's
meeting of 19 December 2004 where P., the chairman of the board until
then, had been replaced T. as a new chairman of the board.
Accordingly, P. had been in the position to sign the application on
behalf of the company at the time when it was lodged with the Court,
and T. had been authorised to sign a letter of authority for the
lawyer representing the applicant company in the later stage of the
proceedings.
- In
these circumstances, the Court finds that the applicant company has
been represented by persons duly authorised to act on its behalf and,
therefore, the preliminary objection is dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant company complained that the length of the proceedings had
been incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- According
to the applicant company, the period to be taken into consideration
had begun on 19 October 1998 when the first interlocutory measure had
been applied. Although the interlocutory measure had been
subsequently annulled – with effect from 4 December 1998 –,
the applicant company had become aware thereof only on 22 December
1998 when it received the decision from its lawyer.
- The
Government disagreed and were of the opinion that the proceedings
started on 11 December 1998 when K. lodged the main action against
the applicant company. The measure applied on 19 October 1998 had
been subsequently annulled and in essence no civil proceedings were
initiated.
- The
parties agreed that the proceedings came to an end on 14 February
2006.
- The
Court recalls that Article 6 does not apply to provisional measures
adopted prior to the proceedings on the merits, as such measures
cannot, as a general rule, be regarded as involving the determination
of civil rights and obligations (see, among other authorities,
Dogmoch v. Germany (dec.), no. 26315/03, ECHR
2006 ...; and Biserica Sfantul Haralambie and Others
v. Moldova (dec.), no. 19967/02, 30 November 2004; and,
a contrario, Markass Car Hire Ltd v. Cyprus
(dec.), no. 51591/99, 23 October 2001).
- In
the present case, the interlocutory measure, applied on
19 October 1998, concerned the prohibition of the disposal
of the applicant company's buildings, whereas in the main
proceedings, instituted on 11 December 1998, K. claimed a
share in the applicant company. The Court considers that the
provisional measure did not coincide with or forestall any final
decision in the main proceedings. It follows that Article 6 §
1 was not applicable to the proceedings before 11 December 1998.
- The
Court notes that the Government were of the view that the period of
one year and two months – while the proceedings had been
suspended because of the death of the original plaintiff – had
to be deducted from the length of the proceedings. The Court finds
that this impediment has to be taken into account in assessing the
overall length of the proceedings in the light of the “reasonable
time” requirement of Article 6 § 1 of the Convention.
- Accordingly,
the Court finds that the period to be taken into consideration began
on 11 December 1998 and ended on 14 February 2006. It thus lasted
slightly more than seven years and two months for three levels of
jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- The
Court takes note of the fact that in the present case the civil
proceedings had to be suspended for establishing the legal successor
of the original plaintiff and that certain delays in the proceedings
were caused by the accusations of the applicant company's
representatives against the judges of the County Court. On several
occasions the applicant company's representative lacked authorities
to participate in the proceedings. Nevertheless, having examined all
the material submitted to it and having regard to its case-law on the
subject, the Court considers that in the instant case the length of
the proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III.
ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- In
substance, the applicant company further complained that they had no
effective remedies for excessive length of proceedings. This
complaint falls to be examined under Article 13 of the Convention
which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court notes that this 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
(a) The Government
- The
Government asserted that effective remedies were available to the
applicant company at the domestic level concerning the complaint
under Article 6 § 1 of the Convention.
- In
respect of preventive remedies which would expedite the proceedings,
the Government referred to several provisions of the Code of Civil
Procedure (see paragraph 32 above). Various time-limits were set out
in the Code in order to ensure that the proceedings took place within
reasonable time.
- The
Government admitted that in the present case the applicant company
could not appeal against many of the decisions to adjourn the
hearings as the hearings were usually adjourned for one month whereas
an adjournment decision could be appealed against only if the hearing
was adjourned for more than three months (Article 177 of the Code of
Civil Procedure). This, however, did not mean that no remedy existed
in law.
- The
Government noted that the applicant company had not requested that
hearings were held at shorter intervals. Neither did the applicant
company appeal against the decision of the County Court to suspend
the proceedings.
- In
respect of the possibilities to obtain redress for delays in the
proceedings, the Government made reference to the provisions of the
Code of Administrative Court Procedure – according to which the
administrative courts were empowered to adjudicate disputes in public
law – and the Constitution (see paragraph 31 above).
Furthermore, it quoted the case-law of the Supreme Court, according
to which administrative courts were authorised to examine whether
public authorities performed their actions within reasonable time.
The Supreme Court had found that the administrative courts were
authorised to award compensation to individuals for actions –
including delays – of public authorities even in cases where no
specific legal provisions existed to that effect (see paragraphs 33
to 36 above).
- The
Government concluded that a person could file a complaint with an
administrative court against delays in judicial proceedings and
against inaction of a court and also claim compensation for damage
caused thereby.
- The
Government considered that even if the Court were to find that none
of the above remedies individually constituted sufficient and
effective remedy, the aggregate of remedies nevertheless ensured
effective legal protection to the individuals in respect of the
length of proceedings. The Government contended that there had been
sufficient remedies available to the applicant company, which,
however, did not make any attempts to make use of them.
(b) The applicant company
- The
applicant company disputed the Government's position on the existence
of remedies and argued that proclamations and rules of law did not
constitute effective preventive remedies if no sanctions existed for
their breach. In fact, the civil proceedings in the County Court were
suspended and hearings adjourned on several occasions without the
applicant company having had any possibility to make a formal appeal
against it. The applicant company pointed out that no examples had
been provided where the remedies referred to by the Government would
have been used and where they would have been effective. Furthermore,
no examples had been given where compensation would have been paid
for the excessive length of court proceedings.
2. The Court's assessment
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI).
- Remedies
available to a litigant at domestic level for raising a complaint
about the length of proceedings are “effective” within
the meaning of Article 13 of the Convention if they prevent the
alleged violation or its continuation, or provide adequate redress
for any violation that has already occurred. A remedy is therefore
effective if it can be used either to expedite a decision by the
courts dealing with the case, or to provide the litigant with
adequate redress for delays that have already occurred (see
Sürmeli v. Germany [GC], no. 75529/01, § 99,
ECHR 2006-...; and Mifsud v. France (dec.) [GC], no.
57220/00, § 17, ECHR 2002 VIII).
- Turning
to the present case, the Court finds that the Government have failed
to show how the preventive measures they referred to could have
provided any relief to the applicant company. While it is true that
the Code of Civil Procedure set several time-limits in order to
ensure that proceedings were conducted within reasonable time, it
does not appear that the failure of the County Court to comply with
these time-limits could have resulted in any legal consequences.
Neither have the Government explained how an appeal against the first
instance court's decisions concerning adjournment or suspension of
the proceedings – insofar as these decisions were open to
appeal – could expedite the proceedings. The Government
provided no pertinent examples from the domestic case-law.
- As
concerns the compensatory remedies, the Court notes that the
provisions of the Constitution and the Code of Administrative Court
Procedure referred to by the Government are of a general nature and
do not specifically concern compensation for damage related to
unreasonably long civil court proceedings. The Supreme Court's
case-law quoted by the Government indicates that the Supreme Court
has interpreted these general provisions quite broadly. However, as
the Government have not referred to any cases where the courts would
have awarded compensation for excessive length of court proceedings,
the Court is unable to conclude that there existed a compensatory
remedy which was effective in practice as well as in law.
- Having
regard to the above findings the Court cannot consider that the
remedies suggested by the Government taken together satisfy the
requirements of Article 13.
- In
conclusion, the applicant company did not have an effective remedy
within the meaning of Article 13 of the Convention which would have
expedited the proceedings in the County Court or provided adequate
redress for delays that had already occurred. There has therefore
been a violation of this Article.
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 company claimed 400,000 euros (EUR) in respect of pecuniary
damage. In its submission, it had to sell the buildings in Kuressaare
in 2006 for a considerably lower price compared to an offer it had
received before the first interlocutory measure was applied in 1998.
The
applicant company claimed a further sum of EUR 10,000 in respect of
non-pecuniary damage.
- The
Government contested these claims.
They
submitted that the real estate prices had risen considerably in
Estonia over the period concerned and that, in any event, there was
no causal link between the alleged violations and any pecuniary
damage.
The
Government considered that the amount claimed for non-pecuniary
damage was excessive. Should the Court find that the applicant
company suffered some non-pecuniary damage due to the length of
proceedings, they invited the Court to award the applicant company a
reasonable sum under this head.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant company EUR 900 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant company also claimed EUR 4,109.80 for the costs and
expenses incurred before the Court.
- The
Government considered this amount 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, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,500 for costs and expenses in
the proceedings before the Court.
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
- Dismisses the
Government's preliminary objection concerning the alleged lack of
authority of the representatives of the applicant company to act on
its behalf;
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 900 (nine
hundred euros) in respect of non-pecuniary damage and EUR 1,500
(one thousand and five hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable;
(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 8 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
