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FIRST
SECTION
CASE OF MASTORAKIS v. GREECE
(Application
no. 61153/09)
JUDGMENT
STRASBOURG
10 May
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Mastorakis v. Greece,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Anatoly
Kovler,
President,
George
Nicolaou,
Mirjana
Lazarova Trajkovska,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 61153/09) against the
Hellenic Republic lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by three Greek
nationals, Mr Georgios Mastorakis, Mr Emmanouil Mastorakis and
Mr Nektarios Mastorakis (“the applicants”), on 4 November
2009.
- The
applicants were represented by Mr V. Chirdaris, a lawyer practising
in Athens. The Greek Government (“the
Government”) were represented by their
Agent’s delegates, Ms K. Paraskevopoulou and Mr M. Apessos,
Senior Advisers at the State Legal Council, and Ms Z. Chatzipavlou,
Legal Assistant at the State Legal Council.
- On
5 May 2010 the
President of the First Section decided to give notice of the
application to the Government. In accordance
with Protocol No. 14, the application was allocated to a Committee of
three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1934, 1968 and 1966 respectively and live at
the same address in Athens. The first applicant is the father of the
other two.
- On
26 February 1998 the applicants lodged an action for damages with
Lasithi (Crete) First Instance Civil Court against K.K., a contractor
to whom they had entrusted the construction of a building on a plot
of land the first applicant owned. On 5 March 1999 K.K. filed a
counter-action (ανταγωγή).
The hearing, which was originally set for 4 November 1998, was
adjourned to 21 April 1999 at the request of the defendant.
- On
28 March 2000 and 29 June 2001, by two interim decisions, the court
ordered preparatory inquiries (decision nos. 62/2000 and 280/2001
respectively). On 28 January 2002, the applicants asked for a new
hearing date, which was set for 20 March 2002.
- On
15 September 2002 the action and counter-action were granted in part
(judgment no. 267/2002).
- On
11 and 14 February 2003 respectively, both K.K. and the applicants
lodged appeals against the aforementioned decision. The hearing was
set for 16 September 2003.
- On
20 April 2004 the Crete Court of Appeal quashed the first instance
decision and partially allowed the appeal (judgment no. 179/2004).
- On
11 June 2004 K.K. lodged an appeal on points of law.
- On
1st March 2006 the Court of Cassation partially quashed the appellate
decision and remitted the case to a different division of the Court
of Appeal (judgment no. 383/2006). On 5 May 2006, the applicants
asked for a new hearing date. The hearing was fixed for 27 February
2007.
- On
21 January 2008, by an interim decision, the appellate court ordered
preparatory inquiries (judgment no. 29/2008).
- On
4 March 2008 the applicants asked for a new hearing date. The
hearing, originally set for 21 October 2008, took place on 20 October
2009.
- On
5 February 2010 the Crete Court of Appeal ordered new preparatory
inquiries (judgment no. 32/2010).
- On
18 February 2010 K.K. asked for a new hearing date.
- On
21 September 2010 a hearing took place before the Crete Court of
Appeal and the decision was reserved.
- On
7 February 2011 the appellate court quashed judgment no. 267/2002
of the Lasithi (Crete) First Instance Civil Court and partially
allowed the appeal (judgment no. 58/2011). The applicant was served
with the judgment on 2 March 2011. This became final on 3 April 2011.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants 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.
- The
period to be taken into consideration began on 26 February 1998, when
the applicants lodged an action with the Lasithi First Instance Civil
Court and ended on 7 February 2011, when
judgment no. 58/2011 of the Crete Court of Appeal
was published. It thus lasted
approximately thirteen years for three levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the 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).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants further complained of the fact that in Greece there was no
court to which application could be made to complain of the excessive
length of proceedings. They relied on Article 13 of the Convention
which provides 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.”
- 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 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). It notes that objections and
arguments put forward by the Government have been presented and
rejected in earlier cases (see Konti-Arvaniti
v. Greece,
no. 53401/99, §§ 29-30,
10 April 2003 and Tsoukalas v. Greece, no.
12286/08, §§ 37-43, 22 July 2010) and
sees no reason to reach a different conclusion in the present case.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of a
remedy under domestic law whereby the applicants could have obtained
a ruling upholding their right to have their case heard within a
reasonable time, as set forth in Article 6 § 1 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 15,000 euros (EUR) each in respect of
non-pecuniary damage.
- The
Government considered the amount claimed exorbitant and submitteds
that the finding of a violation would constitute sufficient just
satisfaction. They submitted, however, that if the Court considered
that an award should be made to the applicants, the sum of an
amount of EUR 6,000 to each
applicant would be adequate and reasonable.
- The
Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards
the applicants jointly the amount of EUR 14,000 for
non-pecuniary damage, plus any tax that may be
chargeable on this amount.
B. Costs and expenses
- The
applicants also claimed EUR 615 each for
the costs and expenses incurred before the Court.
They produced three separate bills of costs for that amount in
support of their claim.
- The
Government contested the applicants’ claim
and submitted that the amount claimed was not reasonable. In
the event, however, the Court considered it appropriate to award the
applicants a sum under this head, the sum of EUR 1,000 for the
applicants jointly would be adequate.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum (see Iatridis
v. Greece (just satisfaction) [GC],
no. 31107/96, § 54, ECHR 2000 XI).
- Regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the applicants the full amount
claimed under this head, namely EUR 615 each, plus any tax that may
be chargeable to the applicants.
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 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 applicants, within three months,
the following amounts:
(i)
EUR 14,000 (fourteen thousand euros)
jointly, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii)
EUR 615 (six hundred and fifteen euros), to each applicant plus
any tax that may be chargeable, 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly Kovler
Deputy Registrar President
