European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> KAGGOS v. GREECE - 64867/09 [2011] ECHR 1124 (19 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1124.html
Cite as: [2011] ECHR 1124

[New search] [Contents list] [Printable RTF version] [Help]

FIRST SECTION

CASE OF KAGGOS v. GREECE

(Application no. 64867/09)

JUDGMENT

STRASBOURG

19 July 2011

This judgment is final but it may be subject to editorial revision.

In the case of Kaggos 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 28 June 2011,

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

PROCEDURE

The case originated in an application (no. 64867/09) 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 a Greek national, Mr Aristidis Kaggos (“the applicant”), on 24 November 2009.

The applicant was represented by Mr N. Anagnostopoulos and Ms A. Psycha, lawyers practising in Athens. The Greek Government (“the Government”) were represented by their Agent's delegates, Mr M. Apessos and Ms K. Paraskevopoulou, Senior Advisers at the State Legal Council, and Ms Z. Chatzipavlou, Legal Assistant at the State Legal Council.

On 7 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 applicant, a retired military officer, was born in 1930 and lives in Mytilini.

On 15 November 1996 the applicant lodged an application with the Army Solidarity Fund (Ταμείο Αλληλοβοηθείας Στρατού) (hereafter “the Fund”) asking for an additional retirement premium, following the amendment of the date of his retirement. On 29 November and 18 December 1996 the Administrative Council of the Fund rejected his application at first instance and on appeal respectively.

On 22 January 1997 the applicant lodged a recourse with the Athens First Instance Administrative Court challenging the decisions of the Fund.

In a judgment dated 29 May 1998 the Athens First Instance Administrative Court partially upheld the applicant's claim and awarded him 7,739,869 drachmas (GRD) (i.e. 22,714 euros) (judgment no. 5835/1998).

On 5 November 1998 the Fund lodged an appeal.

On 27 September 2001 the Athens Administrative Court of Appeal accepted the Fund's appeal and quashed the first instance decision, after having concluded that the legal requirements for the award of an additional retirement premium had not been satisfied (judgement no. 4030/2001). The applicant was served with the decision on 25 February 2003.

On 11 March 2003 the applicant lodged an appeal on points of law.

On 7 July 2006 the Supreme Administrative Court quashed the appellate decision and remitted the case to the Court of Appeal (judgment no. 2034/2006).

On 6 June 2008 the Athens Administrative Court of Appeal rejected the appeal lodged by the Fund against judgment no. 5835/1998 of the First Instance Administrative Court (judgment no. 1947/2008). The applicant was served with the decision on 26 May 2009.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant 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 22 January 1997, when the applicant lodged a recourse with the Athens First Instance Administrative Court and ended on 6 June 2008, when judgment no. 1947/2008 of the Athens Administrative Court of Appeal was published. It thus lasted more than eleven years and four months for three levels of jurisdiction.

A. Admissibility

The Court notes that the 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 applicant and the relevant authorities and what was at stake for the applicant 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 applicant 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. He 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 applicant could have obtained a ruling upholding his right to have his 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 applicant claimed 25,000 euros (EUR) 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 applicant, the sum of an amount of EUR 6,000 would be adequate and reasonable.

The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the applicant the amount of EUR 10,000 for non-pecuniary damage, plus any tax that may be chargeable on this amount.

B. Costs and expenses

The applicant claimed EUR 3,000 for costs and expenses incurred before the domestic courts and EUR 1,500 for the costs and expenses incurred before the Court. He produced two separate bills of costs; one for the sum of EUR 403.04 for the costs incurred before the domestic courts and one for the sum of EUR 1,500 regarding those incurred before the Court.

The Government contested these claims. In so far as the costs and expenses incurred before the domestic courts are concerned, the Government observed that those were not causally linked with the protracted length of the proceedings and that this claim should be dismissed. In any event, they argued that the bills of costs submitted, did not cover the total amount claimed. With regard to the amount of costs and expenses allegedly incurred before the Court, the Government submitted that the amount claimed was not reasonable. In the event, however, the Court considered it appropriate to award the applicant a sum under this head, the amount of 1,000 EUR 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).

Regarding the applicant's claim in respect of the costs incurred before the domestic courts, the Court has already ruled that the length of a procedure could result in increased costs for the applicant before the domestic courts and should therefore be taken into account (see Capuano v. Italy, 25 June 1987, § 37, Series A no. 119). The Court notes, however, that, even assuming that the bills of costs submitted by the applicant covered the total amount claimed in this respect, the costs in this case were not caused by the length of proceedings but were costs normally incurred in the context of the proceedings. Thus, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

In respect of the claim for costs incurred before the Court, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable that the sum claimed, namely EUR 1,500, should be awarded in full, plus any tax that may be chargeable to the applicant.

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 applicant, within three months, EUR 10,000 (ten thousand euros), in respect of non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable on these amounts; (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 19 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Anatoly Kovler
Deputy Registrar President