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Cite as: [2012] ECHR 394

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FIRST SECTION

CASE OF ROÏDAKIS v. GREECE (No. 3)

(Application no. 38998/09)

JUDGMENT

STRASBOURG

6 March 2012

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

In the case of Roïdakis v. Greece (No. 3),

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 14 February 2012,

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

PROCEDURE

The case originated in an application (no. 38998/09) 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 Nikolaos Roïdakis (“the applicant”), on 25 June 2009.

The applicant was represented by Mr A. Kaloutsakis, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr I. Bakopoulos and Ms G. Kotta, Legal Assistants at the State Legal Council.

On 10 December 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 was born in 1953 and lives in Athens.

On 21 August 1997 he lodged an opposition (ανακοπή) with the Athens First Instance Civil Court challenging his arrest as compulsory enforcement measure regarding a decision of the Athens First Instance Civil Court issued against him for unpaid debt to an individual (decision no. 951/1995).

On 30 October 1998 the opposition was rejected (judgment no. 8769/1998).

On 30 November 1998 the applicant filed an appeal before the Athens Civil Court of Appeal challenging the court’s findings and its evaluation of the evidence.

By judgment dated 21 June 1999, the court accepted the applicant’s appeal and the case was remitted to the Athens First Instance Civil Court in order to be retried (judgment no. 5619/1999).

On 6 March 2001 a preliminary decision was issued partially rejecting the applicant’s opposition and asking him to submit supplementary evidence regarding the remainder of his allegations (judgment no. 1923/2001).

10. On 17 June 2002 the applicant filed an application asking for a hearing date to be set as soon as possible.

On 15 March 2004, after a subsequent re-hearing was held, the Athens First Instance Civil Court rejected the applicant’s opposition (judgment no. 1299/2004).

On 2 February 2007 the applicant lodged an appeal challenging the First Instance Court’s decisions nos. 1923/2001 and 1299/2004.

By judgment dated 6 March 2009, the Athens Civil Court of Appeal accepted the applicant’s appeal after quashing the ruling of the first instance court. Subsequently, after examining the applicant’s opposition de novo, the court held that it was well founded (judgment no. 1236/2009).

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 21 August 1997, when the applicant lodged the opposition before the Athens First Instance Civil Court, and ended on 6 March 2009, when judgment no. 1236/2009 of the Athens Court of Appeal was published. It thus lasted more than eleven years and six months for two levels of jurisdiction.

A. Admissibility

The Court reiterates that for Article 6 § 1 to be applicable under its “civil” head, there must be a “dispute” over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98, and Powell and Rayner v. the United Kingdom, 21 February 1990, § 36, Series A no. 172).

In the present case the Court observes that Article 6 is applicable to the proceedings in question as the opposition that the applicant lodged challenging his arrest as compulsory enforcement measure, was related to a decision of the Athens First Instance Civil Court issued against him for unpaid debt to an individual (no. 951/1995). Therefore, the subject matter of the claim was founded on the alleged infringement of rights of a pecuniary nature (see Enea v. Italy [GC], no. 74912/01, §§ 97 and 103-107, ECHR 2009 ....). Moreover, the Court notes that the proceedings concerned in substance the lawfulness of the deprivation of liberty and that, the right to liberty, which was thus at stake, is a civil right within the meaning of Article 6 § 1 (see Laidin v. France (no. 2), no. 39282/98, §§ 74-77, 7 January 2003).

In view of the above the Court notes that the application 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).

The Court considers at the outset that the overall length of the proceedings in the present case, which was approximately eleven years and six months for two levels of jurisdiction, appears to be excessive. It is true that the applicant was responsible for some delays over the entire course of the proceedings. In particular, the Court observes a delay regarding the lodging of an application asking for a hearing date to be set after preliminary decision no. 1923/2001 of the Athens First Instance Civil Court was issued and the lodging of an appeal with the Athens Civil Court of Appeal challenging the First Instance Court’s decisions nos. 1923/2001 and 1299/2004. These delays correspond approximately to four years of the total length of the proceedings. Nevertheless, the Court does not find that it was the applicant’s conduct alone which contributed to the prolonged length of the proceedings. On the contrary, the Court is of the opinion that the actual length of the proceedings, which was more than seven years, - without taking into account the applicant’s delays - remains excessive. In particular, it is noted that the actual duration of the proceedings when the case was pending the second time before the Athens First Instance Civil Court - which lasted approximately three years and six months - was 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 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. 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 the objections and arguments put forward by the Government have been 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 300,000 euros (EUR) in respect of non pecuniary damage.

The Government considered the amount claimed exorbitant and submitted that the finding of a violation would constitute sufficient just satisfaction. They submitted, however, that if the Court considers that an award should be made, an amount of EUR 3,000 would be adequate and reasonable.

The Court considers that the applicant must have sustained non pecuniary damage. Ruling on an equitable basis, it awards him EUR 6,000 under that head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

The applicant claimed EUR 1,647.10 for costs and expenses incurred both before the domestic courts and the Court. He produced four separate bills of costs; three for the sum of EUR 1,047.10 for the costs incurred before the domestic courts and one for the sum of EUR 600 regarding those incurred before the Court.

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. As regards the costs and expenses incurred before the Court, the Government did not express an opinion on the matter.

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 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 600 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 rate 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, the following amounts:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, 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 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 6 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Anatoly Kovler
Deputy Registrar President