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FOURTH SECTION

CASE OF AHO v. FINLAND

(Application no. 2511/02)

JUDGMENT

STRASBOURG

16 October 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 Aho v. Finland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,

Having deliberated in private on 25 September 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 2511/02) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Finnish nationals, Mrs Taimi Aho and Mr Asko Aho (“the applicants”), on 4 December 2001.

The applicants, the first of whom had been granted legal aid, were represented by Mr H. Salo, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

The applicants alleged various breaches of the right to a fair trial within a reasonable time.

On 4 July 2005 the President of the Fourth Section of the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1942 and 1960 respectively and live in Tampere.

The first applicant’s husband and the second applicant’s father, Mr Pentti Aho, died of cancer on 14 May 1992. He had been in receipt of sickness pension since 1981 and in 1986 he had been diagnosed with cancer of the larynx. He had been smoking cigarettes from 1941 to 1986.

A. The compensation claim against the tobacco companies

On 6 May 1988 Mr Pentti Aho instituted proceedings against two companies, British American Tobacco Nordic Oy (former Suomen Tupakka Oy) and Oy Rettig Ab (hereinafter “the tobacco companies”), claiming compensation for the cancer caused by smoking cigarettes. Essentially he based the claim on false and illegal marketing and on violations of a ban on selling harmful products.

On 16 June 1988 the Helsinki District Court (raastuvanoikeus, rådstuvurätten) held its first hearing. Upon the parties’ request the case was adjourned until 6 October 1988. Subsequently the case was adjourned on several occasions. The District Court received oral evidence from about 30 witnesses, many of whom were medical specialists, including Professor X who claimed that medical science had not been able to prove that there was a causal link between tobacco smoking and cancer. At the 15^th hearing on 28 January 1992, the plaintiff requested a postponement pending the outcome of a criminal case before the Espoo District Court, which was to be examined in April 1992. The request was, however, refused.

On 6 February 1992 the Helsinki District Court rejected the action. As to the plaintiff’s request for a postponement, it found that the action was based on facts different from those presented in the criminal case. Having regard also to the fact that the compensation claim had been pending for several years, the District Court found that it should be decided without further delay. Noting that the selling of tobacco was not prohibited, it found that the sale of the product itself did not give rise to liability for damages. Nor did the District Court find that the marketing of tobacco products, having regard to the plaintiff’s awareness of tobacco-related health issues, could give rise to any liability for damages. It ordered the parties to bear their own legal costs.

On 6 March 1992 the plaintiff lodged his appeal. He died on 14 May 1992.

On 26 February 1993 the estate, consisting of the applicants, continued the claim on his behalf. The applicants also renewed their request for the examination of the appeal to be postponed until the Espoo District Court had given judgment in the criminal proceedings. The Helsinki Court of Appeal (hovioikeus, hovrätten) acceded to the request. It resumed the examination of the case on 21 July 1997.

The compensation claim, the above-mentioned criminal case and another criminal case concerning perjury were examined jointly by the Court of Appeal.

By its judgment (no. 3967) of 31 December 1998 the Court of Appeal, without holding a hearing, rejected the appeal. However, it did not endorse the District Court’s reasoning. It found that the tobacco companies had sought to mislead customers by failing to inform them of the possible detrimental effects of tobacco on health. Notwithstanding that this did not as such result in a right to damages for the customer, it affected the assessment of whether the tobacco companies had been negligent. In the present case the Court of Appeal found that there had been negligence. However, it did not find a causal link between smoking and the damage alleged. The Court of Appeal ordered the parties to bear their own legal costs.

The first applicant but not the second sought leave to appeal and requested an oral hearing. On 23 June 1999 the Supreme Court (korkein oikeus, högsta domstolen) granted her leave to appeal. She and the tobacco companies each filed further observations in October, November and December 1999 respectively.

By its judgment (no. 1196) of 7 June 2001 the Supreme Court, without holding a hearing, rejected the appeal. Although the Supreme Court found that there was a causal link between smoking and the damage alleged, it did not find a causal link between the damage and the tobacco companies’ marketing activity. It considered that during his 45 years of smoking cigarettes Mr Pentti Aho had known that tobacco posed a threat to his health. In these circumstances it was not credible that he had continued to smoke, trusting that it was not dangerous owing to the tobacco companies’ marketing of their product. Thus, he had knowingly put himself at risk. Accordingly, the damage did not result from the marketing of tobacco. The Supreme Court ordered the parties to bear their own legal costs.

B. The private prosecution against the management of the tobacco companies

On 27 January 1992 Mr Pentti Aho instituted a private prosecution against, among others, the directors of the tobacco companies. He brought charges against them for misleading consumers, a marketing offence, endangering the life and health of others and aggravated assault. He relied on an opinion by the Consumer Ombudsman according to which the directors of the tobacco companies had engaged in illegal marketing to which the plaintiff as a customer had been subject from 1941 to 1986.

The Espoo District Court held its first hearing on 22 April 1992. It decided to examine jointly the charges brought by Mr Pentti Aho and three other smokers also diagnosed with cancer. The public prosecutor did not join the private prosecutions. Following the death of Mr Pentti Aho, his estate continued the private prosecution. On 25 September 1992 the estate withdrew part of the charges, maintaining the charge concerning aggravated assault. At the third hearing on 5 February 1993 the estate, among others, requested a further postponement with a view to substantiating the charges and calling witnesses. On 2 April 1993 the District Court concluded that the proposed witnesses would not shed any light on the question as to whether the defendants had caused Mr Pentti Aho’s cancer and, if so, whether they had done so intentionally. As the case turned on whether the defendants’ conduct met the definition of aggravated assault, which was a question of law and not of fact, it rejected the request for a postponement.

In its judgment of the same day the District Court rejected the charges, finding that the causal link between the damage and the defendants’ conduct, if any, had been broken owing to the fact that Mr Pentti Aho had put himself at risk. It ordered the estate to reimburse the defendants’ legal costs in the amount of 30,000 Finnish marks (FIM; 5,046 euros (EUR)).

A journalist covering the trial wrote the following:

“The court rejected the criminal charges in the tobacco case... . The sudden closure of the case was surprising. ... Both counsel for the plaintiffs and for the defence were totally amazed that the case was closed already on Friday [2 April 1993]. The plaintiffs had requested a postponement with a view to hearing witnesses at the next hearing.” (Helsingin Sanomat of 3 April 1993)

On 30 April 1993 the estate appealed, requesting that the case be remitted owing to the District Court’s refusal to allow the hearing of witnesses. In the estate’s submission, at the beginning of the trial the District Court judge had allegedly said to counsel that he was going to severely restrict the estate’s right to present evidence. Subsequently, the judge denied the estate the possibility to have witnesses heard during the four hearings. At the fourth hearing, the judge suddenly decided to close the case.

In the alternative, the estate requested a hearing in the Helsinki Court of Appeal. The estate filed further observations on 12 April and 13 May 1994.

The present case, the above action for compensation and the perjury charges mentioned below were examined jointly by the Helsinki Court of Appeal.

By its judgment (no. 3961) of 31 December 1998 the Court of Appeal, having noted the finding in the compensation proceedings that no causal link between smoking and the damage alleged had been established, rejected the appeal. It ordered the estate to reimburse the defendants’ legal costs in the sum of FIM 2,000 (EUR 336).

The estate sought leave to appeal. On 4 May 2000 the Supreme Court granted the first applicant cost-free counsel retroactively from September 1992.

By its decision no. 1308 of 20 June 2001 the Supreme Court refused leave to appeal. It appears from the decision that the Supreme Court had requested an explanation from the District Court judge regarding the alleged procedural shortcomings.

C. The perjury proceedings

Following the testimony given by Professor X in the compensation proceedings according to which medical science had not been able to prove that there was a causal link between tobacco smoking and cancer, the National Board of Medico-legal Affairs, on 7 May 1993, requested a police investigation. A pre-trial investigation was carried out into the matter, following which the public prosecutor, on 15 March 1994, brought charges against Professor X for perjury.

The Helsinki District Court held its first hearing on 29 March 1994. The applicants joined the prosecution. The first applicant was granted partly cost-free counsel which covered her costs exceeding FIM 15,000 (EUR 2,523).

Subsequently, it turned out that Professor X had received some FIM 280,000 (EUR 47,093) from British American Tobacco Nordic Oy in 1991 and 1992 and that he had not declared the income in his tax returns. Therefore, the public prosecutor on 2 or 4 April 1995 brought charges against him concerning two counts of aggravated tax fraud. The District Court ordered a joint examination of the charges.

On 10 September 1996, during the 18^th session, the public prosecutor informed the court that he wished to withdraw the perjury charges. The estate maintained the charges. The District Court held altogether 22 hearings in the case.

On 19 March 1997 the District Court rejected all the charges and ordered the applicants to reimburse Professor X’s legal costs in the sum of FIM 25,000 (EUR 4,205). The judgment was not unanimous as two of the lay judges in their dissenting opinions found Professor X guilty of perjury and would have imposed a suspended term of imprisonment.

The public prosecutor and the Tax Administration appealed to the Helsinki Court of Appeal as far as the tax fraud charges were concerned. The estate appealed as far as the perjury charges were concerned.

The present case, the action for compensation and the criminal case mentioned above were examined jointly by the Court of Appeal. On 19 May 1998 it held a hearing as far as the tax fraud charges were concerned.

By its judgment (no. 3962) of 31 December 1998 the Court of Appeal upheld the District Court’s judgment in so far as it had rejected the perjury charges. However, it convicted Professor X of two counts of aggravated tax fraud and imposed a fine. It increased the applicants’ liability for X’s legal costs pertaining to the District Court proceedings to FIM 88,816 (EUR 14,938). It also ordered the applicants to reimburse X’s costs in the written procedure in the Court of Appeal in the amount of FIM 235,288 (EUR 39,573). Further, it imposed on the applicants’ counsel, A. and S., joint liability for these costs totalling FIM 324,104 (EUR 54,510).

The applicants, A. and S. sought leave to appeal. On 23 June 1999 A. and S. were granted leave. The applicants’ request was granted during the further examination of the case in so far as they had been ordered to reimburse the legal costs of Professor X.

By its judgment (no. 1307) of 20 June 2001 the Supreme Court overturned the Court of Appeal’s judgment in so far as A. and S. had been ordered to reimburse Professor X’s legal costs. It also reduced the applicants’ liability for those costs to FIM 25,000 pertaining to the District Court proceedings and FIM 145,000 (EUR 24,387) pertaining to the Court of Appeal’s written procedure. The Supreme Court was not unanimous as Judges Y and Z would have upheld the Court of Appeal’s judgment.

Following the judgment, on 26 June 2001, A. petitioned the Chancellor of Justice, alleging partiality on the part of Judge Y owing to the fact that A. had strongly criticised Judge Y with regard to a criminal matter in 1997.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

The first applicant complained about the length of the three sets of proceedings. The second applicant complained about the length of the second (private prosecution against the management of the tobacco companies) and third (perjury proceedings) sets of proceedings.

As regards the second set of proceedings, both applicants also complained that the Court of Appeal had failed to give reasons, in particular concerning the allegations that the proceedings in the Espoo District Court had been unfair. They further complained, alleging objective partiality, that the District Court had not allowed any witnesses to be heard or further documentary evidence to be submitted. It had also refused to receive further substantiation of the charges. It had refused to do so, although the other parties had not had any objections to the applicants’ requests.

Article 6 § 1 of the Convention reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

As regards the second set of proceedings the applicants also relied on Article 6 § 3(d), which reads:

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

A. The Government’s preliminary objections and admissibility

The Government argued that there was no connection between the two sets of criminal proceedings, during which the applicants had not presented any claims for damages, and the civil proceedings and therefore Article 6 § 1 was not applicable to the two sets of criminal proceedings in this case. The Government considered that Article 6 was applicable to the first set of proceedings.

The Government also argued that the domestic proceedings had become pending before the entry into force of the Convention with respect to Finland and therefore only the period starting from the date of entry into force could be taken into account as regards the length of the proceedings.

The applicants contested the Government’s view as to the non-applicability of Article 6, arguing that the fact that the Court of Appeal had decided to examine the three cases jointly showed that there was an essential connection between them. This substantial interconnection of the three cases made Article 6 applicable to all of them. The applicants argued that they had intended to seek financial reparation in the second set of proceedings but that they had been prevented from doing so by the District Court’s sudden closure of the case.

As to the Court’s competence ratione temporis, the applicants argued that the period which had lapsed before the entry into force of the Convention must be taken into account as background information.

The Court agrees with the parties that Article 6 is applicable under its civil limb to the first set of proceedings. The Court notes that this part of the application, which only concerns the first applicant, 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.

As to the second and third sets of proceedings, the Court notes the following. The applicants were not the accused but the injured party. Thus, the criminal limb of Article 6 § 1 does not apply. Article 6 § 1 under its “civil head” applies only to proceedings concerning the “determination” of a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law (see among other authorities Acquaviva v. France, judgment of 21 November 1995, Series A no. 333, p. 14, § 46). The Convention does not confer any right to “private revenge” or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently: it must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation” (see, inter alia, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 I).

The Court notes that Mr Pentti Aho instituted and, following his death, the applicants maintained a private prosecution against the directors of the tobacco companies among others and that the applicants joined the prosecution against Professor X, brought by the public prosecutor. At no stage of the proceedings did any of the complainants put forward claims against the accused persons for the damage caused by the offences alleged. Indeed, they sought only their conviction. As to the applicants’ argument that they intended to seek financial reparation in the second set of proceedings but that they were prevented from doing by the District Court’s sudden closure of the case, the Court does not find any force in this argument since it was not put forward in the appellate courts. The Court concludes that the applicants have not shown that any of their civil rights were asserted in either of the two sets of proceedings (see Perez v. France [GC], cited above).

Accordingly, Article 6 of the Convention is not applicable to the second and the third sets of proceedings in the present case. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

As to its competence ratione temporis as regards the length of the first set of proceedings, the Court observes that since the Convention entered into force with respect to Finland only on 10 May 1990, it must limit its examination to whether the facts occurring after that date disclose a breach of the Convention. Events prior to 10 May 1990 will therefore be taken into account merely as a background to the issues before the Court (see, e.g., Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299 A, p. 19, § 53). Having regard to the Court’s competence ratione temporis, the period to be taken into consideration as regards the first set of proceedings began on 10 May 1990 and ended on 7 June 2001 when the Supreme Court gave judgment. The period of relevance to the assessment of whether the length of the proceedings was “reasonable” thus amounts to eleven years and one month.

B. Merits

On the date of entry into force of the Convention with respect to Finland, the compensation claim had been pending before the District Court for two years. The court gave judgment one year and some nine months later. It thus took it three years and eight months to examine the claim. The Court of Appeal gave judgment six years and some eleven months later and the Supreme Court a further two years and some five months later.

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 applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

The Government have pointed out that the case was complex and the case file extensive. The nature of the action was new to the Finnish courts at the time of its institution and it involved difficult questions of law and facts, including complicated medical issues. The conduct of the plaintiff (initially Mr Pentti Aho and subsequently the first applicant) prolonged the proceedings; the repetitive requests for adjournments, the presentation of extensive written submissions in the hearings and the request that the Court of Appeal await the District Court’s judgment in the second set of proceedings delayed the trial. Also the joint examination of this case and the second and third sets of proceedings in the Court of Appeal prolonged the trial. The District Court and the Supreme Court examined the case as expeditiously as possible. While it was true that the Court of Appeal proceedings had been somewhat lengthy, this had been due to its decision to examine the three cases jointly.

The first applicant emphasised that the initial plaintiff, her husband, had been terminally ill and had died during the proceedings. She contested the Government’s argument that she had delayed the proceedings by requesting a joint examination. In fact, it was the Court of Appeal which decided to examine the cases jointly of its own motion.

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 Pélissier and Sassi, cited above).

Having regard to its case-law on the subject, the Court considers that notwithstanding the undoubted complexity of the case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has therefore been a breach of Article 6 § 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

As regards the compensation claim against the tobacco companies, the first applicant complained under Articles 3 and 6 § 1 of the Convention that the excessive length of the proceedings had constituted inhuman and degrading treatment having regard to the fact that the original plaintiff, Mr Pentti Aho, had already been diagnosed with cancer when they began. In her separate submission of 11 January 2002 the first applicant complained, under Article 6 § 1 alleging partiality, that the Supreme Court judge, Judge Y, had taken part in the decision-making although the applicant’s counsel, A., had strongly criticised her in relation to another case. She also appeared to complain that the President of the Supreme Court, who had taken part in the public debate and thus had been aware of Judge Y’s alleged partiality, had not prevented her from sitting in the case.

The Court has examined above the length complaint under Article 6 and it finds that it does not raise any issue under Article 3 of the Convention. It follows that this aspect of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. As to the complaints lodged on 11 January 2002, the Court notes that the final domestic decision for the purposes of Article 35 § 1 of the Convention was given on 7 June 2001 which is more than six months before these complaints were raised. It follows that they have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

As regards the private prosecution against the management of the tobacco companies, the applicants complained, under Article 2, that the criminal justice system had failed to prosecute and to convict the perpetrators, thereby violating Mr Pentti Aho’s right to life. They also complained, under Article 6 § 1, that the Supreme Court had failed to give reasons when refusing leave to appeal. Further, Judge Y, who had been strongly criticised by counsel A. in relation to another case, took part in the decision-making. Moreover, ordering them to pay the other parties’ legal costs and the fact that it took the Court of Appeal six years to examine and partly grant her application for cost-free counsel rendered the trial unfair. They also relied on Article 6 § 3(d). They furthermore complained, under Article 13, that they had been denied justice on the above-mentioned grounds. Lastly, they complained, under Article 3, that the lengthy proceedings, having regard in particular to Mr Pentti Aho’s cancer, had amounted to inhuman and degrading treatment.

The Court notes that the complaints made under Article 6 are incompatible ratione materiae (see paragraph 42 above). As to the remaining complaints concerning these proceedings, the Court finds no indication of any violations in the particular circumstances of this case. It follows that these complaints must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

As regards the perjury proceedings, the applicants complained, under Article 6 § 1, that the courts’ reasoning was insufficient and, alleging partiality, that the Supreme Court judge, Judge Y, had sat in the case although counsel A. had criticised her in public in connection with the case against her, in which, moreover, she had been represented by the same law firm that represented Professor X in the perjury proceedings. Lastly, the applicants complained, under Articles 3 and 6 taken together, that automatically ordering them, the losing party, to reimburse the defendant’s costs amounting to the equivalent of EUR 37,338 was unreasonable and inflicted pain and anguish on them, having regard to the fact that they had lost their husband and father respectively owing to cancer resulting from tobacco smoking. They also referred to their weak financial position, the first applicant being a pensioner and the second applicant being unemployed.

The Court notes once again that the complaints made under Article 6 are incompatible ratione materiae (see paragraph 42 above). As to the complaint under Article 3, the Court finds no indication of any violation. It follows that these complaints must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

Under the head of pecuniary damage the applicants claimed 42,655.73 euros (EUR) in respect of legal costs that they had been ordered to reimburse in the second and the third sets of proceedings. Under the head of non-pecuniary damage they claimed EUR 10,000 each for anguish and distress.

The Government contested the first-mentioned claim, considering that there was no justification for making any award under this head. The claim for non-pecuniary damage was excessive as to quantum and any award to the applicants together should not exceed a total amount of EUR 2,000.

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 first applicant EUR 8,000 in respect of non-pecuniary damage.

B. Costs and expenses

The applicants claimed EUR 11,648.70 (inclusive of value-added tax) for the costs of counsel and expenses incurred before the domestic courts and EUR 6,750 (inclusive of value-added tax) for those incurred before the Court.

The Government considered that the costs in the domestic proceedings should not be reimbursed. They also pointed out that the Court had invited observations only in respect of part of the application and that the costs should be reduced accordingly. The award should not exceed EUR 3,000 (inclusive of value-added tax).

The Court reiterates that an award under this head may be made only in so far as the costs and expenses were actually and necessarily incurred in order to avoid, or obtain redress for, the violation found (see, among other authorities, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63). Therefore, the Court rejects the claim for costs and expenses in the domestic proceedings. The Court notes that the application to the Court was examined under the joint procedure provided for under Article 29 § 3 of the Convention, that the application was only partly successful and that the costs and expenses before it have not been fully substantiated (Rule 60 of the Rules of Court). Taking into account all the circumstances and having regard to the amount received by way of legal aid from the Council of Europe, the Court awards the first applicant EUR 2,150 (inclusive of value-added tax).

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 complaint concerning the length of the first set of proceedings admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 of the Convention on account of the length of the first set of proceedings;

Holds

(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage and EUR 2,150 (two thousand one hundred and fifty 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 claim for just satisfaction.

Done in English, and notified in writing on 16 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

T.L. Early Nicolas Bratza
Registrar President