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NAKA v. GREECE - 5134/09 [2011] ECHR 902 (7 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/902.html
Cite as:
[2011] ECHR 902
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FIRST
SECTION
CASE OF NAKA v. GREECE
(Application
no. 5134/09)
JUDGMENT
STRASBOURG
7 June
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Naka 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 17 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 5134/09) 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, Ms Paraskevi Naka (“the applicant”), on
30 December 2008.
The
applicant was represented by Mr L. Panousis, a lawyer practising in
Athens. The Greek
Government (“the Government”) were represented by their
Agent’s delegates, Mr S.
Spyropoulos, Assessor at the State Legal Council, and Mr C. Poulakos,
Adviser at the State Legal Council.
On
19 March 2010 the
President of the First Section decided to communicate the complaint
concerning the length of the proceedings 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 was born in 1938 and lives in Athens.
She
is employed as a cleaning lady at the General Hospital of Athens
“Laiko”.
On
17 June 1996 she lodged a civil action with the Athens First Instance
Civil Court asking for a sum of 29,151,114 drachmas
(GRD) (i.e. 85,739 euros) in respect of unpaid salaries.
On
2 October 1997 her action was accepted. This decision was certified
(θεώρηση)
on 8 July 1998 (judgment no. 2927/1997).
On 29 March
1999 the hospital lodged an appeal.
9. On 21 September 1999 the Athens Civil Court of Appeal accepted the
appeal and rejected the applicant’s action as
unfounded
(judgment no. 7938/1999).
On
31 October 2000 the applicant lodged an appeal on points of law with
the Court of Cassation.
On
4 December 2001 the Court of Cassation accepted the appeal and
remitted the case to a different division of the Court of Appeal
(judgment no. 1684/2001).
On
20 December 2001 the applicant filed an application before the
Court of Appeal asking for a hearing
date to be set. The hearing was held on 5 March 2002.
By
judgment dated 28 November 2002 the Court of Appeal quashed
judgment no. 2927/1997 of the Athens First Instance Civil Court and
partially allowed the applicant’s appeal
(judgment no. 9275/2002).
On
13 July 2004 the applicant lodged an appeal on points of law.
On
24 June 2008 the Court of Cassation partially accepted the appeal and
remitted the case to a different division of the Court of Appeal
(judgment no. 1394/2008). This judgment was finalised on 5 November
2008. It does not transpire from the case file
that these proceedings have been concluded.
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, from the
lodging of her action with the Athens First Instance Civil Court
until the finalisation of judgment no. 1394/2008 of the Court of
Cassation, 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, according to the applicants’
complaint, began on 17 June 1996 when the applicant lodged an action
with the Athens First Instance Civil Court and, according to the case
file, ended on 5 November 2008, when judgment no. 1394/2008 of the
Court of Cassation was finalised. The proceedings thus lasted more
than twelve years and four 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
there were repeated procedural delays over the entire course of the
proceedings. The
Court notes that more than three
years of the total length of the
proceedings before the national courts
are attributable to the parties.
In particular, the
Court observes delays regarding
the lodging of an appeal against judgment no. 2927/1997 with
the Court of Appeal and appeals on points of law with the Court of
Cassation challenging judgment nos. 7938/1999
and 9275/2002
of the Court of Appeal respectively. However,
the Court does not find that the parties’ conduct alone
contributed to the prolonged length of the proceedings. On the
contrary, the Court is of the opinion that that the overall length of
the proceedings, which was approximately twelve years and four
months, remains excessive. In particular, it is
noted that the duration of the proceedings when the case was pending
the second time before the Court of Cassation - which lasted more
than four years - was at least in part attributable to the national
courts. Their handling of the case did not facilitate its timely
completion. In the Court’s opinion, the length of the
proceedings can only be explained by the failure of the domestic
courts to deal with the case diligently (see Gümüÿten
v. Turkey,
no. 47116/99, §§
24-26, 30 November 2004).
Thus, in the light of the
criteria laid down in its case-law and having regard to all the
circumstances of the case, the Court considers that 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. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
Firstly,
the applicant had complained under Articles 6 and 13 of the
Convention about the fairness of the proceedings. In particular, she
argued that the Greek
courts had committed errors of fact and law to the defendant’s
advantage. In this regard, she
also complained of a violation of her right to peaceful enjoyment of
her possessions under Article 1 of Protocol No. 1 as she had not been
awarded the full amount of compensation she had been entitled to.
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).
In
this case, the complaints raised by the applicant regarding
unfairness of the proceedings are of a fourth instance nature. In
particular, throughout the proceedings, the applicant was fully able
to state her case. Further, the judgments of the domestic courts were
sufficiently reasoned and there is nothing in the case-file to
indicate that the taking and the assessment of the evidence was
arbitrary or the proceedings were otherwise unfair to raise an issue
under Article 6. Thus, in view of the above, no reason arises under
Article 13.
It
follows that these complaints must be declared inadmissible as
being manifestly ill-founded, pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
Moreover,
as far as the applicant’s complaint under Article
1 of Protocol No. 1 is concerned, the Court
observes that, as it transpires from the case file, the case
regarding this matter, namely the amount of compensation the
applicant is entitled to, is still pending before the Court of
Appeal.
Therefore,
in view of the above, this complaint is
premature and should be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
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 71,769.19 euros (EUR) in respect of pecuniary
damage she had allegedly suffered as a result of not receiving the
full amount of compensation that she had been entitled to. She
also claimed EUR 40,000 for non-pecuniary damage.
The
Government contested the applicant’s claim for pecuniary
damage. As regards her claim for non-pecuniary
damage, they considered the amount claimed
exorbitant and submitteds
that a 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, it awards the applicant EUR 6,000 in respect of
non-pecuniary damage, plus any tax that may be
chargeable on this amounts.
B. Costs and expenses
The
applicant also claimed EUR 6,975 for costs and expenses incurred
before the Court. She did not produce any documents in support of her
claim.
The Government contested the applicant’s claim
and submitted that it was unsubstantiated.
According
to the Court’s established case-law, costs and expenses will
not be awarded under Article 41 unless it is established that they
were actually and necessarily incurred and were also reasonable as to
quantum (see Iatridis v. Greece (just satisfaction) [GC],
no. 31107/96, § 54, ECHR 2000 XI).
Furthermore, legal costs are only recoverable in so far as they
relate to the violation found (see Beyeler v. Italy (just
satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).
In
the present case the Court notes that the applicant has not submitted
any invoice or bill of costs on the basis of which the Court can
assess precisely the cost and expenses actually incurred.
Regard
being had to the above-mentioned 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
6,000 (six thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable on
this amount;
(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 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly
Kovler
Deputy Registrar President
