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Cite as: [2011] ECHR 1504

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FIRST SECTION

CASE OF STELIOS SCHINAS-SPILIOS KAISARIS KOINOPRAXIA v. GREECE

(Application no. 23410/09)

JUDGMENT

STRASBOURG

4 October 2011

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

In the case of Stelios Schinas-Spilios Kaisaris Koinopraxia v. Greece,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Anatoly Kovler, President,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 13 September 2011,

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

PROCEDURE

The case originated in an application (no. 23410/09) 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 private company based in Itea Fokidos, Stelios Schinas-Spilios Kaisaris Koinopraxia (“the applicant”), on 6 April 2009.

The applicant was represented by Mr S. Bregiannos, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegate, Mrs F. Dedousi, Senior Adviser at the State Legal Council.

On 19 March 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

In accordance with a contract concluded on 18 February 1987 between the Municipality of Itea and the applicant, the latter undertook the construction of a sewage treatment plant on behalf of the municipality whose cost amounted to 143,036.24 euros.

5. On 24 July 1990 the applicant asked the department in charge of the project (Technical Services of Municipalities and Communities in the Prefecture of Fokida (hereafter “T.S.M.C”) to compile a revised table of costs in order to take into account further work following an amendment of the project. However, no table was created within the determined three-month time-limit, following the applicant’s request.

6. On 29 October 1990 the applicant lodged an objection with the T.S.M.C – a remedy which had compulsorily to be exhausted according to the national legislation before having recourse to a court – challenging the omission of the aforementioned department to compile this table. The objection was rejected by the municipal council of Itea.

7. On 8 February 1991 the applicant lodged an administrative appeal (αίτηση θεραπείας) against the abovementioned decision which was also tacitly rejected by the Prefect of Fokida.

8. On 3 July 1991 the applicant lodged a recourse with the Piraeus Administrative Court of Appeal challenging the implicit rejection of the Prefect of Fokida.

9. In a judgment dated 30 June 1992 the Court of Appeal quashed the decision of the Prefect and the case was remitted to him for a fresh examination (judgment no. 1627/1992). In particular, the appellate court rejected the arguments of the Municipality of Itea according to which the applicant had not complied with the procedural requirement concerning the notification of the appeal to the other party.

10. On 24 November 1992 the Municipality of Itea lodged an appeal on points of law.

11. In a judgment dated 1^st April 1996 the Supreme Administrative Court quashed judgment no. 1627/1992 of the Court of Appeal and remitted the case to a different division of the same court (judgment no. 1618/1996).

On 24 September 1997, the Court of Appeal dismissed the appeal. It held that the requirement of notification of the appeal had been met and dismissed the case on its merits, observing that the applicant’s claim was contrary to the terms of the contract.

13. On 4 March 1998 the applicant lodged another appeal on points of law with the Supreme Administrative Court. The hearing, which was originally set for 15 March 1999, was subsequently adjourned to 10 December 2001 and then to 3 June 2002. Meanwhile, on 11 February 2002, the case was struck from the first division and transferred to the sixth division of the court. A new hearing date was set for 13 January 2003. Subsequently, between 13 January 2003 and 17 June 2008 the case was adjourned on sixteen consecutive occasions.

14. The hearing took place on the latter date.

15. In a judgment dated 6 October 2008 the Supreme Administrative Court quashed the ruling of the appellate court. In particular, it observed that the finding of the Court of Appeal that the procedure had been respected by the mere filing of the administrative appeal to the municipality and the assignment of a registration number without any notification by a bailiff or other public body being necessary was contrary to the law. Subsequently, the Supreme Administrative Court examined the applicant’s recourse de novo and dismissed it as inadmissible because the applicant had not complied with the notification requirement (judgment no. 2757/2008). This judgment was finalised on 29 January 2009.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS

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.

As far as the period to be taken into consideration is concerned, and in particular regarding the dies a quo, it is observed that, when under the national legislation an applicant has to exhaust a preliminary administrative procedure before having recourse to a court, the proceedings before the administrative body are to be included when calculating the length of the civil proceedings for the purposes of Article 6 (see Kiurkchian v. Bulgaria, no. 44626/98, §§ 51-52, 24 March 2005).

In the present case, prior to the recourse that the applicant lodged with Piraeus Administrative Court, he submitted an objection with the T.S.M.C challenging the omission of the aforementioned department to compile a revised table of costs. This remedy had to be exhausted according to the national legislation before having recourse to a court.

Accordingly, the period to be taken into consideration started to run on 29 October 1990, when the applicant lodged the abovementioned objection and ended on 29 January 2009, when judgment no. 2757/2008 of the Supreme Administrative Court was finalised. It thus lasted eighteen years and three months 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 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 as regards the reasonableness of the length of the proceedings.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE FAIRNESS OF THE PROCEEDINGS

The applicant complained under Article 6 of the Convention that, by declaring its recourse inadmissible, judgment no. 2757/2008 of the Supreme Administrative Court violated the applicant’s right to a fair trial.

The Court recalls that, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts. In particular, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many others, García Ruiz v. Spain [GC], no. 30544/96, §§ 28 29, ECHR 1999 I). The Court also recalls that it is not its task to act by calling into question the outcome of the domestic proceedings. The domestic courts are best placed for assessing the relevance of evidence to the issues in the case and for interpreting and applying rules of substantive and procedural law (see Pekinel v. Turkey, no. 9939/02, § 53, 18 March 2008).

In the present case, throughout the proceedings, the applicant was fully able to state its case in particular on the question of inadmissibility raised by the opposite party. There is nothing in the case-file to indicate that the assessment of the evidence was arbitrary or the proceedings were otherwise unfair to raise an issue under Article 6. Moreover, judgment no. 2757/2008 of the Supreme Administrative Court was sufficiently reasoned and clearly explained why the applicant’s appeal should be rejected as inadmissible.

In view of the abovementioned, the applicant’s complaint is therefore manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) 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

The applicant claimed 70,479.84 euros (EUR) in respect of pecuniary damage. The amount is exclusively linked with the financial subject matter of the dispute before the domestic courts and with its allegations that were rejected. Further, the applicant claimed 20,000 EUR for non-pecuniary damage arguing that efforts had been made by the Municipality of Itea to prevent or exclude it from obtaining new projects. Finally, it alleged that its credibility and reputation had been prejudiced.

The Government contested the applicant’s claims for pecuniary and non-pecuniary damage. In particular, regarding the applicant’s claim for non-pecuniary damage, they submitteds that the finding of a violation would constitute sufficient just satisfaction.

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, the applicant must have suffered certain non-pecuniary damage as a result of the excessive length of the proceedings. Thus, the Court considers it reasonable that the sum claimed, namely EUR 20,000 should be awarded in full, plus any tax that may be chargeable on this amount.

B. Costs and expenses

The applicant claimed EUR 7,699.92 for costs and expenses incurred before the domestic courts and before the Court. It produced four separate bills of costs (total sum of EUR 4,699.92) as regards the costs incurred before the domestic courts and one in support of its claim regarding the costs incurred before the Court (EUR 3,000). It is observed that invoice no. 1670b for a fee of EUR 2,000 (regarding costs before the Supreme Administrative Court) and no. 2251 for a fee of EUR 3,000 (concerning the costs incurred before the Court) are not valid receipts, as they are not accompanied by a formal tax receipt proving payment.

The Government contested the applicant’s claims. They considered that, taking into account that the evidence submitted by the applicant does not meet the requirements of Rule 60 § 2 of the Rules of the Court, as it is not specific and relevant, the claim under this head should be dismissed under paragraph 3 of the aforesaid Rule. In particular, with regard to the invoice mentioned above, the Government noted that the documents submitted did not constitute appropriate and sufficient evidence. In the event, however, the Court considered it appropriate to award the applicant a sum under this head, the amount of EUR 1,500 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 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 the costs claimed 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 costs incurred before the Court, in view of the absence of any valid supporting documents, the Court finds that the applicant’s claim under this head has not been substantiated.

Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to reject the applicant’s claim under this head.

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 excessive length of the proceedings admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds

(a) that the respondent State is to pay the applicant, within three months EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Anatoly Kovler
Deputy Registrar President