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DOLNEANU v. MOLDOVA - 17211/03 [2007] ECHR 914 (13 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/914.html
Cite as:
[2007] ECHR 914
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FOURTH
SECTION
CASE OF
DOLNEANU v. MOLDOVA
(Application
no. 17211/03)
JUDGMENT
STRASBOURG
13
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 Dolneanu v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr S. Pavlovschi,
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 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 17211/03)
against the Republic of Moldova lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Moldovan
national, Mr Pavel Dolneanu (“the applicant”), on 21
February 2003. On 11 March 2003 he died. His daughter, Ms Maria
Zavdei (“the applicant's successor”), expressed her wish
to pursue the application before the Court.
The
applicant was represented by Ms Luciana Iabangi,
from the “Helsinki Committee for Human Rights in Moldova”,
a non-governmental organisation based in Chişinău. The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr A. Pârlog.
The
applicant alleged, in particular, a violation of his rights
guaranteed by Article 1 of Protocol No. 1 to the Convention alone and
in conjunction with Article 13 of the Convention, as a result of the
belated payment of compensation for the depreciation of his deposits
with the State Savings Bank.
The
application was allocated to the Fourth Section of the Court. On
4 April 2006 a Chamber of that Section decided to communicate
the application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it decided to examine the merits of the
application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1930 and lived in Puhoi.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
The
applicant deposited money in three different accounts in the Savings
Bank ('the Bank'), which was, during Soviet times, State-owned.
In 1994 Parliament adopted Decision no. 201-XIII on the
indexing of citizens' savings in the Savings Bank of Moldova”
(“the 1994 decision”) whereby persons who had reached the
age of 60 by 1 January 1994 and who had savings in their accounts in
the Bank on 2 January 1992 were entitled to recover a part of their
deposits at the rate of one Moldovan leu (MDL) for one Soviet rouble
for the first thousand roubles deposited in each account.
On 16 February 1995 the Government adopted Decision
no. 108, whereby it created a Commission charged with
establishing the amount of compensation to be transferred by the
Ministry of Finance (“the Ministry”) by the 25th
day of each month to the Bank for compensation purposes, on the basis
of the allocations made for that purpose in the State budget for the
relevant year.
The
applicant had more than a thousand roubles in each of his three
accounts in the Bank and he claimed accordingly MDL 3,000 (the
equivalent of 750 United States dollars (USD)). On 7 June 2000 he
received MDL 570 after the Ministry of Finance (“the
Ministry”) transferred money to the Bank for compensation
purposes. He continued to request the remaining amount and to
complain to various authorities.
On 8 November 2001 he initiated court proceedings
against the Bank and the Ministry to recover the remaining amount and
seeking compensation for the late payment (since the value of the
money was depreciating because of high inflation) and for
non-pecuniary damage caused by having to wait for the payment (the
applicant was recognised as second-degree disabled and had a monthly
State pension of MDL 89). Both defendants accepted that the applicant
had a right to obtain the outstanding amount of compensation, and
stated that the delay in paying was due to the failure to include in
the State budget the allocations for that purpose. According to the
Ministry, during 1995-1997 it transferred to the Bank 26% of the
money necessary to pay the compensation in full to all those affected
by the 1994 decision. However, the State budget did not allocate any
further funds during 1998-2000, while an additional 7% of the total
amount was allocated in the budget for the year 2001. The applicant
did not receive any compensation in 2001.
On
4 March 2002 the Centru District Court partly accepted the
applicant's claim. It found that the main responsibility for the
delay in paying his outstanding compensation lay with the Ministry,
which had not transferred the necessary money to the Bank. It ordered
the Bank to pay the applicant MDL 266 and the Ministry to pay
him MDL 2,163, which constituted the remaining amount due under
the 1994 decision (a total of MDL 2,429, or EUR 210 at the
time). The court rejected the claim for compensation in respect of
pecuniary and non-pecuniary damage because there was no law dealing
with such claims.
In
an appeal, the applicant expressly requested the court, on the basis
of Article 4 of the Constitution, to apply directly Article 1 of
Protocol No. 1 to the Convention and Article 13 of the Convention as
regards the absence of domestic remedies.
On
7 May 2002 the Chişinău Regional Court upheld the judgment
of 4 March 2002, repeating the reasoning of the first-instance
court in rejecting the claim for compensation in respect of pecuniary
and non-pecuniary damage.
In
an appeal, the applicant repeated his arguments advanced before the
lower courts and relied in addition on Article 6 of the Civil Code
(see paragraph 18 below).
On
3 September 2002 the Court of Appeal also upheld the lower courts'
judgments and confirmed their reasoning in rejecting the claim of
compensation in respect of pecuniary and non-pecuniary damage,
because it “had no support in law”. That judgment was
final. On 29 July 2004 the outstanding amount was transferred to the
applicant's account.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Constitution read as
follows:
“Article 4 Human rights and freedoms
(1) The constitutional provisions regarding human rights
and freedoms shall be interpreted and applied in line with the
Universal Declaration of Human Rights and with the covenants and
other treaties to which Moldova is a party.
(2) In the event of a conflict between the covenants and
other treaties regarding human rights and freedoms to which Moldova
is a party and its domestic legislation, the international provisions
shall take precedence.”
“Article 20 Free access to justice
(1) Every citizen shall have the right to obtain
effective protection from competent courts of jurisdiction against
actions infringing his or her legitimate rights, freedoms and
interests.
(2) No law may restrict access to justice.”
The relevant provisions of the Civil Code, in force
before 12 June 2003, read as follows:
“Article 6 Protection of civil rights.
Civil rights shall be protected in accordance with the
rules determined by the competent courts...: by recognising those
rights; ... by obliging persons who violate a right to compensate for
the damage caused..., as well as by other means provided for by law.
Article 215 Obligation of the debtor to compensate for
the damage
If the debtor does not fulfil his obligation or fulfils
it inappropriately he shall compensate for the damage caused to the
creditor.
The compensation shall include the creditor's costs,
loss of or damage to items, as well as loss of any profits which the
creditor would have obtained had the obligation been fulfilled.”
Parliament's decision “Concerning the indexing
of citizens' savings in the Savings Bank of Moldova” (No.
201-XIII, 29 July 1994) reads as follows:
“Article 1 – Citizens' savings in the
Savings Bank of Moldova ...shall be indexed on the basis of the
account balance on 2 January 1992 for those account holders who on 1
January 1994 had reached the age of 60 – the first thousand
roubles on all accounts according to the ratio one [Soviet] rouble :
to one leu [MDL].
Article 2 – The Government and the National Bank
of Moldova:
within one month shall decide upon and propose the
manner and mechanism of amortisation of the indexed amounts and the
sources of compensation;
shall make proposals regarding the manner of indexation
of citizens' other deposits of the population in the Savings Bank of
Moldova”
The relevant provisions of the Law on the indexation
of citizens' savings in the Savings Bank (No. 1530-XV, 12 December
2002) (“the 2002 Law”) read as follows:
“... Article 2 Indexation
The savings of citizens of the Republic of Moldova
deposited in the Savings Bank ... shall be indexed on the basis of
the account balance on 2 January 1992:
a) according to the ratio one rouble to one leu [MDL]
for the first thousand roubles of the cumulative balance of all
accounts of natural persons (account holders);
b) according to the ratio two and a half roubles to one
leu [MDL] for the balance exceeding the amount indicated under (a)
for natural persons (account holders).
Article 3 Manner of payment
The amounts indicated in Article 2 shall be paid in
instalments, starting in 2003.
Article 4 Financial means of payment
(1) Payment of the indexed amounts shall be made from
the State Budget.
(2) The annual Budget shall provide, for the relevant
year, the quantum of financial means for the payment of indexed
amounts...
Article 5 Phases of indexation
(1) Indexation of the amounts and their payment shall be
made, at the account holders' request, in phases, with priority for
the first thousand roubles, then for the balance exceeding the first
thousand roubles, in accordance with the account holder's year of
birth.
Article 7
The Government:
a) shall adopt, within one month, a Regulation regarding
the indexing and manner of payment of the indexed amounts of
citizens' savings in the Savings Bank;
b) shall determine annually, depending on the amounts
provided in the Annual Budget for indexation, the categories of
citizens whose savings are to be indexed...”
THE LAW
The
applicant complained of the belated payment of the compensation due
to him, contrary to Article 1 of Protocol No. 1 to the Convention,
which reads:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
He
also complained of a violation of his rights under Article 13 of the
Convention, which reads:
“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.”
In
substance, the applicant also complained of a violation of Article 6
§ 1 of the Convention, the relevant part of which reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
I. ADMISSIBILITY
The
Court notes at the outset that the applicant died after lodging the
present application and that his successor has expressed her wish to
continue the proceedings before the Court (see paragraph 1 above). It
does not see any impediment to its further examination of the case.
The
Government submitted that the applicant had not exhausted all the
domestic remedies available to him. In particular he could have, but
had not, made use of the provisions of Article 20 of the Constitution
(see paragraph 17 above) and several Articles of the new Civil Code.
It was still open to his successor to initiate proceedings in this
respect and she could also rely directly on the Convention.
The
applicant's successor referred to the appeals submitted to the
domestic courts, which had expressly referred to Article 1 of
Protocol No. 1 to the Convention and Article 13 of the Convention.
The
Court notes that the applicant initiated court proceedings claiming
the outstanding compensation and that the courts examined his claims
and accepted them in this respect. He thus properly exhausted the
available domestic remedies.
However,
having found the defendants liable for the belated payment of
compensation due to the applicant, the courts expressly noted the
absence of laws allowing them to award the applicant damages. In
doing so the courts did not respond to the applicant's request to
apply the Convention directly. The applicant therefore did not have
any further remedy in this respect.
In
such circumstances, this complaint cannot be rejected for failure to
exhaust available domestic remedies.
The
Court considers that the applicant's complaints under Article 1 of
Protocol No. 1 to the Convention and Articles 6 and 13 of the
Convention raise questions of fact and law which are sufficiently
serious that their determination should depend on an examination of
their merits. No grounds for declaring them inadmissible have been
established. The Court therefore declares these complaints
admissible. In accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 4 above), the Court will immediately
consider the merits of the complaints.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
The
applicant submitted that the belated payment of the compensation to
which he was entitled under the 1994 decision had violated his rights
guaranteed by Article 1 of Protocol No. 1 to the Convention. He
emphasised that the property right on which he relied derived from
the 1994 decision and not from either the deposits in Soviet roubles
made before 1992 in his accounts, or from any claim for damages for
the failure to pay.
The
Government considered that the applicant had not had a “possession”
within the meaning of Article 1 of Protocol No. 1 to the Convention
and that, therefore, there had been no interference with his rights.
1. Whether the applicant had “possessions”
The
Court reiterates that “according to its case-law, an applicant
can allege a violation of Article 1 of Protocol No. 1 to the
Convention only in so far as the impugned decisions relate to his
“possessions” within the meaning of that provision.
“Possessions” can be “existing possessions”
or assets, including, in certain well-defined situations, claims. For
a claim to be capable of being considered an “asset”
falling within the scope of Article 1 of Protocol No. 1, the claimant
must establish that it has a sufficient basis in national law, for
example where there is settled case-law of the domestic courts
confirming it. Where that has been done, the concept of “legitimate
expectation” can come into play” (see Draon v.
France [GC], no. 1513/03, § 65, 6 October 2005).
However, Article 1 of Protocol No. 1 does not guarantee any right to
acquire the ownership of property (see Gayduk and Others v.
Ukraine (dec.), no. 45526/99, 2 July 2002). Consequently, it does
not impose any general obligation on States to maintain the
purchasing power of sums deposited through the systematic indexation
of savings (see Rudzińska v. Poland (dec.), no. 45223/99,
ECHR 1999-VI and X. v. Germany, application no. 8724/79,
Commission decision of 6 March 1980, DR 20, p. 226).
In
the present case, the Court notes that the applicant had a claim
based on the 1994 decision. That decision (see paragraph 19 above)
provided for a right of compensation for every citizen of Moldova
complying with two conditions: to have had money in a bank account on
2 January 1992 and to have reached the age of 60 by 1 January
1994. It was undisputed that the applicant satisfied both conditions.
The decision also established the exact amounts which could be
claimed by those qualifying for compensation: MDL 1,000 for each
account on which he or she had at least 1,000 Soviet roubles on 2
January 1992. The applicant provided the domestic courts with
evidence that by 2 January 2002 he had three bank accounts with more
than 1,000 Soviet roubles in each of them. Therefore, the total
amount to which he was entitled by law was MDL 3,000.
The
Court also notes that neither the defendants in the domestic case,
nor the courts, ever raised any doubt regarding the applicant's right
to obtain compensation under the 1994 decision, nor was there any
dispute as to the exact amount to which he was entitled. Moreover,
the applicant received part of the compensation in the year 2000 (see
paragraph 8 above), the defendants thus implicitly recognising his
claims.
In
its 1994 decision Parliament did not subject the right to
compensation to any other criteria than the two mentioned above,
which the applicant fulfilled. In particular, there was no reference
to availability of funds for compensation or for progressive or
phased payment, and no power was given to the executive to decide
which categories of beneficiaries should be compensated on a priority
basis or to suspend payments on whatever basis. While the decision
obliged the Government and the National Bank of Moldova to determine
the sources of financing compensation payments, it did not make the
executive's ability to identify such sources a condition of the right
to obtain compensation. Therefore, the Government's introduction of
additional conditions for the payment of compensation such as the
setting aside of money for that purpose in the State budget (see
paragraph 9 above), while reasonable per se, had not been
contemplated in Parliament's decision and could not affect the
applicant's right to obtain compensation. The court judgments in the
applicant's case give support to this view: while the Ministry's only
defence was the unavailability of money in the State budget earmarked
for compensation purposes, the courts found the Ministry liable for
failing to pay. In so doing, the courts did not consider it necessary
to verify whether the budget for 2002, when the judgments were
adopted, provided for the payment of compensation outstanding under
the 1994 decision.
Accordingly,
this case must be distinguished from those in which the legislature
clearly intended to limit the right to compensation and expressly
delegated to the executive the power to adjust payments depending on
the fulfilment of specific criteria (see the decision in Gayduk,
cited above). When the Moldovan Parliament did intend to subject the
right to compensation to various limitations and criteria, it did so
expressly (see paragraph 20 above).
The
Court has established, moreover, that lack of funds may not be cited
as a reason for the authorities' failure to comply with their
obligations (see, mutatis mutandis, Prodan v. Moldova,
no. 49806/99, § 53, ECHR 2004 III (extracts)),
and has also found a violation of Article 1 of Protocol No. 1 to the
Convention in cases where the failure to pay resulted from
Parliament's failure to provide for the necessary means in the State
budget (see Voytenko v. Ukraine, no. 18966/02, §§
41-43, 29 June 2004).
Moreover,
it appears to the Court that it was not the availability of money in
the budget that affected the payment of compensation. By the
Ministry's own admission, it had obtained and transferred to the Bank
more than a quarter of the total amount needed in 1995-97 (see
paragraph 11 above) and yet the applicant did not receive any money
until the year 2000, despite his numerous requests. More money was
available in 2001 and yet the applicant did not receive anything
until 2004, despite a final court judgment ordering the payment in
2002. The Court is aware of the fact that the Bank became a
commercial bank in the meantime, but it also notes that the scheme
established for paying the relevant compensation continued to be
implemented through that bank. In this respect, the Court reiterates
that where the State authorities choose to delegate some of their
functions to private entities, they retain their responsibility for
the manner in which such entities exercise those functions (see Van
der Mussele v. Belgium, judgment of 23 November 1983,
Series A no. 70, § 30).
It
follows that the 1994 decision established with sufficient detail the
criteria for determining the beneficiaries of compensation and the
amounts to which they were entitled. It was never argued before the
Court that there was any domestic case-law contradicting this
finding, and the applicant's own case confirms it.
In
view of the above, the Court concludes that the applicant had a
“legitimate expectation” of obtaining compensation and
thus had a “possession” within the meaning of Article 1
of Protocol No. 1 to the Convention.
2. Whether there was lawful interference with the
applicant's possessions
The
Court reiterates that Article 1 of Protocol No. 1, which in substance
guarantees the right of property, comprises three distinct rules: the
first rule, set out in the first sentence of the first paragraph, is
of a general nature and enunciates the principle of the peaceful
enjoyment of property; the second rule, contained in the second
sentence of the first paragraph, covers deprivation of possessions
and subjects it to certain conditions; the third rule, stated in the
second paragraph, recognises that the Contracting States are
entitled, amongst other things, to control the use of property in
accordance with the general interest. The second and third rules are
concerned with particular instances of interference with the right to
peaceful enjoyment of property and should therefore be construed in
the light of the general principle enunciated in the first rule (see
Iatridis v. Greece [GC], no. 31107/96, § 55,
ECHR 1999 II).
The
Court considers that the failure to pay any compensation to the
applicant for approximately six years after his request, followed by
the failure to pay the greater part of the compensation for another
four years approximately, amounted to interference with his rights
guaranteed by Article 1 of Protocol No. 1 to the Convention.
The
Court “reiterates that the first and most important requirement
of Article 1 of Protocol No. 1 is that any interference by a public
authority with the peaceful enjoyment of possessions should be
lawful: the second sentence of the first paragraph authorises a
deprivation of possessions only “subject to the conditions
provided for by law” and the second paragraph recognises that
States have the right to control the use of property by enforcing
“laws”. Moreover, the rule of law, one of the fundamental
principles of a democratic society, is inherent in all the Articles
of the Convention (see the Amuur v. France judgment of 25 June
1996, Reports 1996-III, pp. 850-51, § 50). It follows
that the issue of whether a fair balance has been struck between the
demands of the general interest of the community and the requirements
of the protection of the individual's fundamental rights (see the
Sporrong and Lönnroth v. Sweden judgment of 23 September
1982, Series A no. 52, p. 26, § 69) becomes relevant only
once it has been established that the interference in question
satisfied the requirement of lawfulness and was not arbitrary (see
Iatridis, cited above, § 58)
In
the present case the domestic courts found that this interference
with the applicant's right had been unlawful, finding that the
responsibility lay mainly with the Ministry. The interference was,
accordingly, incompatible with the applicant's right to the peaceful
enjoyment of his possessions. This conclusion makes it unnecessary to
ascertain whether a fair balance has been struck between the demands
of the general interest of the community and the requirements of the
protection of the individual's fundamental rights.
The
Court notes, however, that while the courts acknowledged a violation
of the applicant's property rights, they did not award him any
compensation for the damage caused by the belated payment of the
money to which he was entitled. This, in the Court's view, did not
offer sufficient relief to the applicant, who continued to suffer the
consequences of the breach of his rights.
In
view of the above, the Court concludes that there has been a
violation of Article 1 of Protocol No. 1 to the Convention in the
present case.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN
CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
The
applicant also complained of a lack of effective remedies in respect
of his complaint raised under Article 1 of Protocol No. 1 to the
Convention. Although he attempted to obtain such a remedy by relying
directly on Article 13 in conjunction with Article 1 of Protocol No.
1 to the Convention before the domestic courts and by relying on
general provisions of the Civil Code, the courts rejected his claims.
The
Government considered that the applicant had relied on Article 13 in
conjunction with Article 6 of the Convention. In view of the lack of
any reason to believe that Article 6 had been breached in the present
case, the Government considered that Article 13 could not be relied
on, since the applicant had not had an arguable claim under Article 6
of the Convention.
The
Court notes that the applicant relied on Article 13 in conjunction
with Article 1 of Protocol No. 1 to the Convention. It further points
out that, while the courts found the Ministry in breach of its
obligations, they expressly noted the absence of any legal provision
allowing them to award damages to the applicant.
It
follows that the applicant did not have any effective remedy in
respect of his complaint under Article 1 of Protocol No. 1 to the
Convention. There has, accordingly, been a violation of Article 13 of
the Convention in the present case.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
Court considered, when communicating the present application, that it
also raised in substance a complaint under Article 6 of the
Convention. However, in the light of its finding of a violation of
Article 1 of Protocol No. 1 to the Convention and of Article 13 of
the Convention, the Court does not consider it necessary to examine
this complaint separately.
V. 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. Pecuniary damage
The
applicant's successor claimed EUR 513 for pecuniary damage relying,
inter alia, on the effects of inflation on the compensation
which he should have received.
The
Government considered that this claim was unsubstantiated and
excessive. Moreover, it was still possible to claim compensation in
the domestic courts, which had not been done in the present case.
The
Court reiterates that the rule of exhaustion of domestic remedies
provided for by Article 35 § 1 of the Convention is not
applicable in respect of just satisfaction claims made under Article
41 of the Convention (see De Wilde, Ooms and Versyp
v. Belgium (Article 50), judgment of 10 March 1972, Series A
no. 14, §§ 15 and 16, and Becciev v. Moldova,
no. 9190/03, § 80, 4 October 2005). Therefore, the
applicant cannot be expected to initiate new proceedings claiming
compensation for the violations found in the present judgment.
The
Court considers that the applicant suffered pecuniary damage as a
result of the failure to pay him compensation within a reasonable
time. On the basis of the information in its possession, the Court
accepts the applicant's claim in full.
B. Non-pecuniary damage
The
applicant's successor also claimed EUR 3,500 in respect of
non-pecuniary damage. He referred to his advanced age and his small
pension, which would have been substantially supplemented by the
compensation claimed.
The
Government considered that the applicant's successor could not claim
non-pecuniary damage on his behalf and that, in any event, the amount
sought was excessive.
The
Court considers that the applicant must have been caused stress and
frustration as a result of the failure for many years to pay him
compensation. It also considers that his successor is entitled to
claim non-pecuniary damage in his behalf (see Lukanov v. Bulgaria,
judgment of 20 March 1997, Reports of Judgments and Decisions
1997 II, § 53). Deciding on an equitable basis, the
Court awards EUR 2,000 under this head.
C. Costs and expenses
The
applicant's successor claimed EUR 1,588 for costs and expenses. In
support of these claims she submitted a contract with her lawyer and
an itemised list of hours spent working on the case (17.5 hours).
The
Government disputed the amount claimed for representation. They said
that it was excessive and argued that the amount claimed by the
lawyer was not the amount actually paid to her by the applicant. They
disputed the number of hours spent by the applicant's lawyer and the
hourly rate charged by her.
In
the present case, regard being had to the itemised list submitted and
the difficulty of the case, the Court accepts in full the claim for
costs and expenses.
D. 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
1 of Protocol No. 1 to the Convention;
3. Holds that there has been a violation of Article 13 of the
Convention in conjunction with Article 1 of Protocol No. 1 to the
Convention;
4. Holds that it is not necessary to examine separately the
complaint under Article 6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant's successor, within
three months of the date on which the judgment becomes final, in
accordance with Article 44 § 2 of the Convention,
EUR 513 (five hundred and thirteen euros) in respect of pecuniary
damage, EUR 2,000 (two thousand euros) in respect of
non-pecuniary damage and EUR 1,588 (one thousand five hundred
and eighty-eight euros) for costs and expenses, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement, 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 13 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep
Casadevall
Registrar President
