by Alfred MOL
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 16 June 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 27 February 2007,
Having regard to the unilateral declaration submitted by the respondent Government on 18 September 2008, as amended by letter of 16 February 2009, requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
1. The applicant, Mr Alfred Mol, is a Dutch national who was born in 1941 and lives in Swieqi, the Republic of Malta. He is represented before the Court by Mr R.V. de Lauwere, a lawyer practising in Hilversum. The Dutch Government (“the Government”) are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. From 1980 onwards, the applicant has been involved in civil proceedings concerning infringement of the intellectual property rights of a computer simulation programme on steam cracking. In 1980, the opposing party T.B. B.V. (hereafter “T.B.”), started proceedings which were terminated in 1988 due to a prejudiced right of continuing an action (verval van instantie). This meant that the parties retained their respective legal positions as if the proceedings had never been instituted. In early 1994 T.B. essentially started the same procedure again.
4. By judgment of the Regional Court (arrondissementsrechtbank) of The Hague of 3 September 1997, the applicant was ordered to refrain from infringing T.B.’s rights to the computer programme of which it claimed ownership. A number of ancillary claims brought by T.B. were also upheld, resulting in a situation which the applicant alleged interfered with his possibilities to carry on his businesses.
5. On 13 October 1997 the applicant filed an appeal against this judgment with the Court of Appeal (gerechtshof) of The Hague. These proceedings are currently still pending.
6. Because of the delays in rendering a final judgment, the applicant filed a complaint with the Court of Appeal on 7 November 2005. The President of the section for trade disputes (handelssector) responded to this letter on 15 November 2005 by saying that the section would try and render a final judgment as soon as possible before the previously scheduled date of 17 August 2006. As no judgment had been rendered by early February 2006, the applicant wrote a complaint to the President of the Court of Appeal. The Court of Appeal responded by letter of 3 March 2006, stating that the Chamber involved was dealing with a heavy workload but that everything possible would be done to render a judgment within 4 weeks from 3 March 2006.
7. When the Court of Appeal had not rendered a judgment by 6 May 2006, the applicant summoned the Dutch State to appear in injunction proceedings (kort geding) in order to compel a judgment. In response to the summons, the Court of Appeal rendered an interlocutory judgment (tussenarrest) in the original proceedings on 8 June 2006 which, however, did not include a ruling on the merits of the case. At a subsequent hearing of 30 November 2006 the proceedings were adjourned until 18 January 2007 to set a date for delivering judgment. On 18 January 2007 the date for pronouncing judgment was set at 19 March 2008.
8. In response to this further delay the applicant again summoned the Dutch State to appear in injunction proceedings in order to compel a judgment. On 14 March 2007, however, the Regional Court of The Hague rejected the applicant’s request on the ground that the Government could only be held responsible for the acts of courts in the most exceptional circumstances. According to the Regional Court, no such circumstances arose in the applicant’s case.
9. Frustrated by the slow speed of the proceedings, the applicant challenged (wrakingsverzoek) the judges dealing with the case on 13 November 2007. The challenge was refused as unfounded on 15 January 2008.
10. The applicant complained under Articles 6 § 1 and Article 13 of the Convention about the length of the proceedings and lack of an effective remedy under Dutch national law.
A. Article 37 § 1 (c) of the Convention
11. The Court notes that, in a letter of 18 September 2008, the Government requested the Court to strike the application out of its list of cases in accordance with Article 37 of the Convention on the basis of a unilateral declaration by the Government. In its relevant part, this letter reads:
“Direct contacts between the parties in the past weeks with a view to securing a friendly settlement of the matter have remained unsuccessful. That being the case, the Government hereby wishes to express – by way of unilateral declaration – its acknowledgment that the length of the civil proceedings in which the applicant was involved was not in conformity with the reasonable time requirement set out in Article 6, paragraph 1, of the Convention. Also, the Government acknowledges that the applicant did not have at his disposal an effective remedy as required by Article 13 of the Convention.
Consequently, the Government is prepared to pay the applicant an amount of € 7,000 for any immaterial damage incurred. The Government is furthermore prepared to pay the costs for legal representation insofar as they are specified and reasonable as to quantum.
Finally, I wish to inform the Court that draft legislation instituting an effective remedy against unreasonable length of proceedings is currently being prepared under the responsibility of the Minister of Justice.
The Government would suggest that the above information might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1c of the Convention.”
12. In a letter of 21 October 2008 the applicant informed the Court that he did not agree that the Government’s unilateral declaration constituted a reason justifying the striking out of the case. The applicant also considered that the amount which the Government were prepared to pay him in compensation for immaterial damage was not sufficient. Instead he submitted copies of a claim he had filed in the domestic proceedings in 2007 and stated that, in accordance with the Court’s jurisprudence, he now claimed an amount of 52,500 euros (“EUR”) for immaterial damages incurred.
13. On 16 February 2009 the Agent of the Government sent the Court another letter which reads in its relevant part:
“In my letter of 18 September 2008, I indicated the Government’s willingness to pay the applicant, inter alia, an amount of € 7,000 for any immaterial damage incurred. Further study of the Court’s case law on just satisfaction in cases of violation of the reasonable time requirement, however, has revealed that an amount of € 10,000 would be more appropriate in the circumstances of the case.
I therefore wish to confirm my Government’s readiness to compensate the applicant’s immaterial damage with the amount of € 10,000. For the rest, all provisions of my letter of 18 September remain in force.”
14. On 18 February 2009 the applicant replied in writing and stated that the contents of the Government’s declaration did not lead him to change his position as set out in his letter of 21 October 2008.
15. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
Article 37 § 1 in fine states :
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”
16. In deciding whether or not it should strike the application out of its list, the Court will have regard to the criteria emerging from its case-law (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75 77, ECHR 2003-VI; and also Haran v. Turkey (striking out), no. 25754/94, 26 March 2002; Akman v. Turkey (striking out), no. 37453/97, ECHR 2001-VI; Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005; Van Houten v. the Netherlands (striking out), no. 25149/03, 29 September 2005; and WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007).
17. The Court observes that the Government’s declaration contains an acknowledgement that the length of the domestic proceedings in the applicant’s case exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention and that Dutch law did not provide the applicant with an effective remedy as required by Article 13. The Court has specified in a large number of judgments and decisions the nature and extent of the obligations which arise for the respondent State as regards the determination of “civil rights and obligations” within a “reasonable time”, and finds the Government’s admission to be in keeping with the applicable jurisprudential standards. Furthermore, the Court notes that the Government have expressly stated that they are in the process of drafting legislation which is aimed at providing an effective remedy for excessive length of court proceedings.
18. The Court interprets the Government’s acknowledgement of the excessive length of the proceedings in which the applicant was involved as well as the lack of an effective remedy in respect of those proceedings and, consequently, their expressed willingness to pay to the applicant a sum of EUR 10,000 in respect of non-pecuniary damage incurred by those excessively lengthy proceedings, as an undertaking to pay that sum to the applicant in the event of the Court’s striking the application out of its list. For its part, the Court considers EUR 10,000 in respect of non pecuniary damage to be an acceptable sum in this case (see Voorhuis v. the Netherlands (dec.), no. 28692/06, 3 March 2009).
19. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of this part of the application.
20. Accordingly, the Court considers that it is no longer justified to continue the examination of the application.
21. With his letter of 21 October 2008 the applicant submitted invoices in support of his claims for costs and expenses. Concerning the Strasbourg procedure, these amounted to EUR 1,682.45. The applicant further submitted a claim from 18 December 2006 in the domestic proceedings projecting his legal costs and expenses at EUR 37,500. A total estimate of the costs incurred by the applicant since the start of the domestic proceedings in 1994 was put at EUR 786,000. Moreover, the applicant included invoices for two injunction proceedings instituted against the Dutch State to speed up the proceedings, for which the costs amounted to EUR 3,939,67 and EUR 6,252.85 respectively. Invoices were further submitted for the amount of EUR 3,547.33 concerning the challenge (wrakingsverzoek) of the judges of the Court of Appeal dealing with the applicant’s case. Finally the applicant estimated that he had incurred costs of at least EUR 2,800 concerning procedural calendar hearings (rolzittingen).
22. On 3 December 2008 the Government commented on the applicant’s claims, submitting that not all expenses incurred in the domestic proceedings could be claimed before the Court, in particular because these proceedings were still ongoing and further claims could therefore be made in the framework of a future domestic judgment. Moreover, the Government submitted that costs incurred in the domestic proceedings could only be awarded in Strasbourg inasmuch as they related to the length of the domestic proceedings.
23. The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 53-54, 24 October 2002). In other words, in order to be reimbursed, the costs must relate to the alleged violation or violations, have been actually and necessarily incurred and be reasonable as to quantum. Furthermore, itemised particulars of any claim must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see, as a recent authority, Kovačić and Others v. Slovenia (striking out) [GC], nos. 44574/98, 45133/98 and 48316/99, § 276, 3 October 2008).
24. The Court notes, firstly, that the applicant’s claims to the amounts of EUR 37,500, EUR 786,000.00 and EUR 2,800 are estimates which are not supported by invoices or other documentation. For that reason, the Court dismisses this part of the applicant’s claim. Secondly, the Court considers that, although supported by invoices, the applicant’s claims regarding the challenge of the Court of Appeal judges must be rejected as well as these proceedings did not relate to the violation of the applicant’s rights under the Convention. Thirdly, however, the Court finds that the injunction proceedings instituted by the applicant against the Dutch State were aimed at speeding up the proceedings and therefore concerned the alleged violations of the Convention. As the claims relating to these injunction proceedings were supported by invoices detailing the rates charged for the services performed by the applicant’s lawyer, the Court finds it reasonable to award these costs to the total amount of EUR 10,192.52. Finally, regarding the costs incurred by the applicant in the Strasbourg proceedings, the Court notes the lack of complexity of those proceedings and in particular the fact that it has decided to strike the case out of its list at a relatively early stage. It accepts however that costs to a certain amount will have been actually and necessarily incurred, and the Court further observes that the invoices submitted by the applicant set out the hourly rate charged by his lawyer as well as the number of hours of work done by him. In these circumstances, the Court considers it reasonable to award the applicant EUR 1,682.45 for costs and expenses. The Court therefore considers that the total amount to be awarded to the applicant for costs and expenses is EUR 11,874.97. To this amount is to be added any tax that may be chargeable to the applicant. As to default interest, the Court considers it appropriate that it 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 by a majority
(a) that the respondent State is to pay the applicant, within three months, EUR 11,874.97 (eleven thousand eight hundred and seventy-four euro’s and ninety seven cents), 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Santiago Quesada Josep Casadevall