CASE OF E.B. AND OTHERS v. AUSTRIA
14 June 2018
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of E.B. and Others v. Austria, (request for revision of the judgment of 7 November 2013),The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
PROCEDURE1. The case originated in five applications (nos. 31913/07, 38357/07, 48098/07, 48777/07 and 48779/07) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by four Austrian nationals, Mr E.B. ("the first applicant"), Mr H.G. ("the second applicant"), Mr A.S. ("the third applicant") and Mr A.V. ("the fourth applicant"), on 26 October 2006, 17 August 2007 and 18 October 2007. The President of the Section acceded to the applicants' request not to have their names disclosed (Rule 47 § 3 of the Rules of Court).2. In a judgment delivered on 7 November 2013, the Court held that there had been a violation of Article 14 of the Convention read in conjunction with Article 8 on account of the domestic authorities' refusal to delete the applicants' convictions from their criminal records, even though the provision under which the applicants had been convicted had previously been found unconstitutional by the Constitutional Court, and of Article 13 on account of the lack of an effective remedy in this respect. The Court also decided to award the first applicant 5,000 euros (EUR) for non-pecuniary damage, EUR 6,000 for costs incurred in the domestic proceedings, and EUR 5,000 for costs incurred before the Court, and dismissed the remainder of the claims for just satisfaction.3. On 16 November 2013 the first applicant's representative requested a rectification or revision of the judgment as regards the award made to the first applicant for costs incurred in the domestic proceedings.4. In its Resolution CM/ResDH(2016)280, adopted on 5 October 2016 at the 1267th meeting of the Ministers' Deputies, the Committee of Ministers found that all the measures required by Article 46 § 1 of the Convention, including the payment of the just satisfaction awarded by the Court, had been adopted by the respondent State. It thus decided to close the examination of the execution of the Court's judgment delivered on 7 November 2013.5. On 30 January 2018 the Court decided to deal with the request under Rule 80 of the Rules of Court and to communicate it to the Government, inviting them to submit observations within four weeks. Those observations were received on 28 February 2018.
I. THE ORIGINAL JUDGMENT OF THE COURT6. The Court's judgment of 7 November 2013 recorded the first applicant's claims with regard to costs and expenses as follows:
"98. The applicants also claimed the reimbursement of costs and expenses incurred before the domestic courts and authorities and those incurred before the Court. The first applicant claimed EUR 38,410.38 under this head. His claim comprised EUR 16,911.18 for his defence in the criminal proceedings in 1982, 1999 and 2001, EUR 8,326.08 for the proceedings in respect of the rectification of his criminal record and the proceedings for the renewal of the criminal proceedings, and EUR 13,173.12 for the proceedings before the Court. ..."7. Accordingly, the Court made the following awards under the head of costs and expenses:
"101. In respect of the first applicant's claim concerning the costs of his defence in the criminal proceedings in 1982, 1999 and 2001, the Court observes that his present application only concerned his attempts to have his criminal record modified, but did not concern the underlying criminal proceedings themselves. Therefore no award can be made in this respect.
102. As regards the applicants' claims for costs incurred in the domestic proceedings in respect of the deletion of their convictions under Article 209 of the Criminal Code from their criminal records and for the renewal of the underlying criminal proceedings, the Court considers their claims excessive, particularly given their broadly similar submissions in the proceedings at issue. Making an assessment on an equitable basis, the Court awards the first and second applicants EUR 6,000 each and the third and fourth applicants EUR 4,000 each under this head, plus any taxes that may be chargeable to the applicants on these amounts.
103. As regards the applicants' claims for reimbursement of costs incurred in the proceedings before the Court, the Court also considers these claims excessive. In this connection, it notes that the applicants were all represented by the same lawyer whose submissions were to a large extent identical in the present applications. Making an assessment on an equitable basis, the Court awards the first, third and fourth applicants EUR 5,000 each under this head and the second applicant EUR 10,000, plus any taxes that may be chargeable to the applicants on these amounts."
II. THE REQUEST FOR REVISION8. The first applicant's representative requested revision or rectification of the judgment of 7 November 2013 because it gave undue account of the first applicant's claims for costs and expenses incurred in the domestic proceedings. He submitted that the first applicant had not claimed the sum of EUR 16,911.18 for his defence in the underlying criminal proceedings in 1982, 1999 and 2001, but for the proceedings in respect of the rectification of his criminal record in 2006. He therefore requested the Court to award the first applicant a reasonable sum in respect of the EUR 16,911.18 claimed for those proceedings.9. The Government referred to their original observations on the first applicant's claims for just satisfaction submitted in 2010, in which they had argued that the claims had been excessive. In view of those observations, the Government now stated that the award made for costs and expenses in the original judgment of 7 November 2013 appeared just in the sense of Article 41 of the Convention and that no award should be made for the costs claimed for the renewal proceedings.10. The Court finds that the first applicant's arguments do not relate to a clerical error, an error in calculation or an obvious mistake within the meaning of Rule 81 of the Rules of Court.11. The Court observes that its reading of the first applicant's submissions as regards his claims for just satisfaction had a decisive influence on the outcome of the judgment, namely the allocation of the amount of costs and expenses, according to Rule 80 § 1 of the Rules of Court. The Court further notes that this could not have been known to the first applicant prior to the delivery of the original judgment of 7 November 2013.12. The Court accordingly considers that the judgment of 7 November 2013 should be revised pursuant to Rule 80 of the Rules of Court, the relevant parts of which provide:
"A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court ... to revise that judgment.
..."13. Having regard to the parties' submissions, the Court considers the first applicant's claim for costs incurred in the domestic proceedings in respect of the deletion of his convictions under Article 209 of the Criminal Code from his criminal record and for the renewal of the underlying criminal proceedings, excessive. Making an assessment on an equitable basis, the Court now awards the first applicant EUR 8,500, plus any tax that may be chargeable on this amount.14. Taking into account the sum of EUR 5,000 awarded to the first applicant in respect of the costs incurred before it, the Court now awards the first applicant a total of EUR 13,500, plus any tax that may be chargeable to the first applicant on this amount, under the head of costs and expenses.15. 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,
1. Decides to revise its judgment of 7 November 2013 concerning the application no. 31913/07 as regards the award of costs and expenses under Article 41 of the Convention;
(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, and insofar as the amount has not yet been paid, EUR 13,500 (thirteen thousand five hundred euros), plus any tax that may be chargeable to the first 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 14 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekAngelika Nußberger