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FOURTH
SECTION
CASE OF HANNU LEHTINEN v. FINLAND
(Application
no. 32993/02)
JUDGMENT
STRASBOURG
22
July 2008
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 Hannu Lehtinen v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Giovanni
Bonello,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 1 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32993/02) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Mr Hannu Juhani Lehtinen
(“the applicant”), on 4 September 2002. The
applicant died on 30 September 2005.
However, his widow, Mrs Terhi Johanna Lehtinen,
and his children Ms Oona Liisa Kivimäki, Ms Essi Emelia
Kivimäki and Ms Iisa Linnea Kivimäki expressed
their wish to pursue the application. For practical reasons Mr
Hannu Juhani Lehtinen will continue to be called “the
applicant” in this judgment.
- The
applicant was represented by Mr O. Taurén, a lawyer practising
in Helsinki. The Finnish Government (“the Government”)
were represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged a violation of Article 6 § 1 and 6 § 3
(d) of the Convention on account of the lack of an oral hearing and
the refusal to hear his evidence and that of three witnesses.
- On
21 May 2007 the President of the Fourth Section of the Court decided
to give notice of the application to the Government. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and was resident in Siltakylä at the
time of his death.
A. The tax inspection
- At
the material time the applicant was the majority owner of a limited
liability company providing bakery and café services. The
company is not an applicant before the Court.
- In
1999 the Uusimaa Tax Office carried out a tax inspection of the
company's books for the years 1996-1998. The tax inspector
interviewed the applicant and three persons who were working, or had
worked, for the company: Mr T.L., Ms H.T. and Mr R.L. He drew up an
inspection report dated 2 September 1999 and two inspection letters
dated 6 September 1999. He found that there were deficiencies in the
company's book-keeping and that it had failed to enter as income part
of the retail sales during the tax years 1996, 1997 and 1998. Basing
himself on the company's turnover, books and the remaining cash
register printouts, he estimated the amounts at 140,000 Finnish marks
(FIM), FIM 100,000 and FIM 130,000 respectively. He considered that
the missing sales should be treated as disguised payments of
dividends for the purposes of assessing the tax liability of both the
company and the applicant and therefore the applicant's estimated
income should be increased by the above amounts.
- The
Tax Office requested the company to submit its observations regarding
the alleged errors in its tax returns for the fiscal years 1996-1998.
In its observations of 23 August 1999 the company contested the
allegation that certain sales had not been entered in the books. On
24 September 1999 the company and the applicant submitted their
joint observations maintaining that all sales had been entered in the
books and that the applicant had not received any disguised payments
of dividends.
- The
decisions taken in respect of the applicant's increased tax liability
are mentioned below.
B. The Uusimaa Tax Office and Tax Rectification Board's
decisions
- On
10 and 22 November 1999 the Tax Office increased the applicant's
estimated income for the above-mentioned years by FIM 129,000,
FIM 90,000 and FIM 130,000 respectively. Following a rectification of
the applicant's tax liability, the amount of the disguised payments
of dividends was reduced to FIM 121,000 for 1998. Tax surcharges of
FIM 5,000 and FIM 3,000 were imposed on the applicant for
the years 1996 and 1997.
- Following
the applicant's requests, the Tax Rectification Board, on 31 May
and 20 July 2000, partly upheld his claims for reductions. It reduced
the disguised payments of dividends to FIM 85,000, FIM 60,000 and
FIM 85,000 for the tax years 1996 to 1998. It also reduced the
amount of tax surcharges for the years 1996 and 1997 to FIM 4,000 and
FIM 2,000 respectively.
C. The proceedings in the Helsinki Administrative Court
- The
applicant appealed to the Administrative Court, requesting an oral
hearing of his evidence and that of witnesses Mr T.L., Ms H.T.
and Mr R.L. proving that the company had not made any sales that
had not been entered as income and that the applicant had not
received any benefits which could be considered disguised payments of
dividends.
- The
Tax Office obtained the observations of the Tax
Ombudsman, the written statement of the Tax Office and the
applicant's observations in reply.
- On
13 June 2001 the Administrative Court rejected the request for an
oral hearing. It reasoned:
“The Administrative Court considers that an oral
hearing is manifestly unnecessary having regard to the evidence
submitted to it and the nature of the case. The case can thus be
decided without an oral hearing.”
The
court also rejected the appeal, giving the following reasons:
“The amounts of money which the applicant is
considered to have received by way of disguised payment of dividends
On the basis of the circumstances observed during the
tax inspection, not all the company's sales have been entered in the
books. In estimating the amount of the missing sales, the documents
in the tax inspection file show that the Tax Office has already taken
into consideration the company's statement of errors entered in the
cash register. In its decisions the Rectification Board partly upheld
the company's claims and reduced the estimated amounts of disguised
payments of dividends accordingly.
The applicant was the majority owner of [the company]
and, up until 2 December 1998, Chairman of its Board. He worked
for the company full time. He counted the contents of the cash
register daily and was responsible for sending the money to the bank.
In addition, he took care of the company's purchases, payment of
salaries and all money transactions. Therefore, and as there is no
suggestion to the contrary, the sales which have not been entered in
the books can be considered to have been used by the applicant for
his own benefit. As the applicant, for reasons referred to in section
57 of the Taxation Procedure Act, has failed to declare part of the
income for the tax years 1996 to 1998, which has consequently not
been subject to taxation, the payment of the taxes not claimed has
had to be ordered in a reassessment procedure. The increase in the
applicant's income by way of disguised payments of dividends to FIM
85,000, FIM 60,000 and FIM 85,000 respectively for the tax years
1996-1998 cannot be considered too high. As the applicant must be
considered to have produced, knowingly or through gross negligence,
false tax returns concerning the afore-mentioned years, tax
surcharges have also had to be imposed. The tax surcharges concerning
1996 and 1997 cannot be considered excessive. There is no reason to
alter the Rectification Board's decision on the basis of the appeal.”
D. The proceedings in the Supreme Administrative Court
- On
9 August 2001 the applicant requested leave to appeal. Should the
Supreme Administrative Court not find it possible to alter the
decision, he requested that the case be sent back to the
Administrative Court for an oral hearing. On 8 March 2002 the Supreme
Administrative Court refused leave to appeal. It reasoned:
“The applicant's appeal concerns disguised
payments of dividends added to his income by way of reassessment.
There is no reason to bring the case before the Supreme
Administrative Court in the interests of the application of the law
in other similar cases or the uniformity of legal practice. Nor has
there been any manifest error in the examination of the case. There
are likewise no pressing economic reasons to grant leave to appeal.
Since none of the grounds for granting leave to appeal laid down by
section 70 of the Taxation Procedure Act applies, the Supreme
Administrative Court refuses to grant leave to appeal and therefore
will not rule on the applicant's appeal.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
38(1) of the Administrative Judicial Procedure Act
(hallintolainkäyttölaki, förvaltningsprocesslagen;
as amended by Act no. 433/1999) provides that an oral hearing
must be held if requested by a private party. An oral hearing may,
however, be dispensed with if a party's request is ruled inadmissible
or immediately dismissed or if an oral hearing is clearly unnecessary
due to the nature of the case or other circumstances.
- In
this regard, the explanatory report of the Government Bill
(no. 217/1995) for the enactment of the Administrative Judicial
Procedure Act states that an oral hearing contributes to a focused
and immediate procedure but since it does not always bring any added
value it is important that the flexibility and cost effectiveness of
the administrative procedure is not undermined. An oral hearing is to
be held when it is necessary for the clarification of the issues and
the hearing can be considered beneficial for the case as whole.
- During
the period from 2000 to 2006 the Supreme Administrative Court did not
hold any oral hearings in tax matters. As to the eight administrative
courts, appellants requested an oral hearing in a total of 603 cases.
The courts held an oral hearing in 129 cases. There is no information
about how many of these taxation cases concerned the imposition of a
tax surcharge. During the first six months of 2006, the
administrative courts held a total of 20 oral hearings in tax
matters.
- Witnesses
who have been called by a party or the administrative authority that
made the decision or the hearing of whom the appellate body considers
necessary may be heard in the oral hearing. A party may be heard
under oath concerning circumstances of special relevance to the
resolution of the matter. Chapter 17, sections 18-39, of the Code of
Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken)
apply to the hearing of witnesses (section 39 of the Administrative
Judicial Procedure Act as amended by Act no. 433/99).
- Testimony
must be oral. A witness must not refer to a written statement.
However, the witness may use written notes as a memory aid (Chapter
17, section 32(1)). A statement that a witness has previously given
to the court or to the public prosecutor or the police may be read
out in connection with the hearing of the witness only if, in his or
her testimony, the witness retracts his or her earlier statement, or
explains that he or she cannot or will not testify (section 32(2)).
- A
written statement of a private nature, a pre-trial investigation
record or a statement entered or stored in another document must not
be admitted as evidence unless otherwise provided in an Act (Chapter
17, section 11(1), of the Code of Judicial Procedure; Act no.
690/1997). Section 11(2-3) lists exceptions to the prohibition
on using written preliminary investigation material. For example, if
a witness cannot be questioned in the main hearing or outside the
main hearing, the court may allow the pre-trial investigation record
or another document or statement to be taken into account in a
hearing. The Administrative Judicial Procedure Act contains no
restriction on the use of pre-trial investigation material in the
consideration of a case.
- The
said Act provides that the statement of reasons must indicate which
facts and evidence have affected the decision and on which legal
grounds it is based (section 53).
- Section
29 of the Taxation Procedure Act (laki verotusmenettelystä,
lagen om beskattningsförfarande; Act no. 1558/1995 as
in force for the fiscal years 1996-1998) included provisions on the
distribution of disguised payments of dividends and provided that if
it was evident that a partnership or some other corporation had paid
a sum of money to a shareholder, to the spouse, a child, parent or
another relative of a shareholder as a salary, gift salary, partial
salary, housing benefit, representation or travel expenses, insurance
fee, or a comparable credit considered more than reasonable or if the
corporation had paid any one of the persons cited a sum of money as a
purchase price, rent, interest, provision or some other expense that
was essentially higher or had him or her pay less than the norm, a
reasonable tax was imposed on the sum. If a partnership, by buying
its shares or by decreasing the value of its share capital, had
distributed assets to its shareholders and if it was evident that the
distribution of the assets had been carried out for the purpose of
evading tax on dividends, the assets distributed were to be regarded
in this respect as taxable income to the taxpayer.
- Section
32(1) (as in force at the relevant time) provided that if there was a
minor deficiency or error in the tax return or some other piece of
information or document, and the taxpayer failed to comply with a
verifiably sent request to correct the error or if the taxpayer
submitted the tax return, piece of information or document too late
without proper justification, a maximum tax surcharge of EUR 168.19
could be imposed on the taxpayer. Section 32(2) provided that if a
taxpayer submitted a tax return or some other piece of information or
document with essential deficiencies or errors or did not submit them
until he or she had received a verifiably sent request, a maximum tax
surcharge of EUR 840.94 could be imposed on the taxpayer. Section
32(3) provided that if a taxpayer knowingly or through gross
negligence submitted an essentially erroneous tax return or some
other piece of information or document or did not submit a tax return
at all, a tax surcharge of 5 to 30 per cent on the added income and
0.5 to 1 per cent of added assets would be imposed, to a maximum of
EUR 840.94, unless there were special reasons not to do so. Such a
tax surcharge was also imposed when a taxpayer declared income
incorrectly, whether knowingly or through gross negligence.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained about the refusal of the
Administrative Court to hold an oral hearing and to hear
testimony from the applicant and three witnesses proposed by him.
Article
6 § 1 and 6 § 3 (d) of the Convention, in their relevant
parts, read as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal...”
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
- The
Government contested that argument. They conceded, however, that
Article 6 under its criminal head was applicable to the tax surcharge
proceedings.
A. Admissibility
- The
Court notes at the outset that the applicant died on 30 September
2005, after having lodged his application under Article 34 of the
Convention. It points out that in various cases in which an applicant
has died during the course of Convention proceedings, it has taken
into account the statements of the applicant's heirs or of close
members of his family expressing their wish to pursue the application
(see, inter alia, Kalló v. Hungary, no.
30081/02, § 24, 11 April 2006). The Court considers that
the applicant's heirs, who have stated their intention to continue
the proceedings, have a legitimate interest in obtaining a finding of
a breach of the applicant's rights guaranteed by Article 6 § 1
and 6 § 3 (d) of the Convention (see, mutatis mutandis,
Dalban v. Romania [GC], no. 28114/95, §§ 1 and 39,
ECHR 1999 VI).
- Accordingly,
the Court finds that the applicant's heirs have standing to continue
the present proceedings.
- The Court notes that the application 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
1. The parties' submissions
The applicant
- The
applicant submitted that, following the tax inspection carried out in
his company, additional tax and tax surcharges were imposed as it was
claimed that he had produced false tax returns. He was considered to
have received disguised dividends, which meant that he was considered
guilty of tax fraud and false accounting under the Penal Code. The
proceedings had concerned these matters. Before the courts, the case
had been open for review as to the facts and had turned on the
applicant's credibility. Therefore an oral hearing would have been
necessary. The purpose of hearing the witnesses proposed was to prove
that the company had not failed to enter any sales in the books, that
the applicant had not gained any benefit which could have been
considered tantamount to disguised payments of dividend, that he had
not produced false tax returns and was not guilty of tax fraud and
false accounting. The Administrative Court's decision had not
examined these issues. The applicant had been denied the opportunity
to have his witnesses heard and present his crucial evidence.
- It
was true that Mr T.L., Ms H.T. and Mr R.L.'s written statements
had been on the file but the problem was that the Administrative
Court had completely ignored this evidence. The applicant rejected
the Government's submission that the courts could use the written
statements of the above-mentioned witnesses as evidence without
hearing their testimony. He referred to section 39 of the
Administrative Judicial Procedure Act which provided that a person
might be called as a witness by a party, by the administrative
authority who had delivered the decision or by the appellate body if
necessary. If a written witness statement of a private nature was
referred to in evidence, the witness had to be heard orally unless it
was unnecessary or there was a special impediment. According to the
applicant, this meant that if a witness was not heard orally in the
Administrative Court, the court would not attach any importance or
relevance to a written statement of a private nature by that person.
On the other hand, Chapter 17, section 11, of the Code of Judicial
Procedure explicitly prohibited the use of such a written statement,
if the court did not allow it for some special reason, which in
practice was exceptional.
- The
applicant argued that the present case greatly differed from the
facts of the case of Jussila v. Finland ([GC], no. 73053/01).
In the present case, the question was whether the applicant had
produced, knowingly or through gross negligence, false tax returns
and thereby committed offences, that is, the issue was what had
really happened concerning the sales in the small bakery and café.
This would not simply have constituted “additional information”
but would have been crucial and decisive information for the whole
case.
- At
the time of giving their written statements, Mr T.L. and Ms H.T. no
longer worked for the applicant's company. They had been questioned
by the police in March 2003, repeating their written statements,
submitted to the Administrative Court, which proved that the
reassessment and tax surcharges were unfounded and that the applicant
had not produced false tax returns and consequently not committed any
offence. If this evidence had been taken into account, the court
would not have reached the same conclusion. An oral hearing in the
Administrative Court would have been absolutely necessary.
- The
fact that the applicant had had the opportunity to put forward his
case in writing and comment on the submissions of the tax authority
did not make any difference to the crucial procedural shortcoming.
The Government
- The
Government submitted that the sanction imposed on the applicant was a
consequence of a tax inspection carried out in the company and the
tax penalties imposed on it. These matters made up an interconnected
whole. The appreciation of the need for an oral hearing seemed,
therefore, to be more important for the case of the company.
- Comparing
the case of Jussila v. Finland (cited above) to the present
case, it was clear that the aim of hearing witness evidence would
have been to prove that the taxation had been carried out on
incorrect grounds. Another common denominator in these cases was the
claim that the book-keeping could not be considered erroneous. What
was different in the present case was the higher amount of the tax
surcharges and the fact that the applicant had not strived to have
the opposing party heard, but to have persons examined who came from
his own operational environment and sphere of influence. The written
statements by Mr T.L., Ms H.T. and Mr R.L. had been in the file,
and the Administrative Judicial Procedure Act included no provision
preventing their use as a basis for examination. In the circumstances
of the case, the legal presumption of the benefits gained from sales
off the books being turned into disguised dividends did not require
an oral hearing either, considering in particular the facts which
would have been examined by hearing witnesses.
- The
Government emphasised that, although the applicant had not been
afforded an oral hearing, he had had an opportunity, which he had
used, to provide replies to and comments on all memoranda and written
statements by the tax authorities throughout the proceedings. There
was nothing to indicate that questions of fact or law would have
emerged which could not have been adequately resolved on the basis of
the case file and the written observations by the applicant. No
additional information could have been gathered by hearing evidence
from the applicant or the witnesses proposed.
- As
to the applicant's argument that if witnesses were not heard orally
in the Administrative Court the court did not attach any relevance to
written statements, the Government noted that, under the Government
Bill on the Administrative Judicial Procedure Act (HE 217/1995 vp, p.
68) the regulation mentioned would not change the current situation
in a decisive manner. It states:
“Its essential significance would be in obliging
the judicial authority to assess in all cases whether there are
grounds for omitting an oral hearing when written testimony is
invoked. Thus, it would not be possible to take account of written
testimony without such an assessment”.
According
to the Government, the last sentence did not mean that the testimony
was not taken into account; it meant that the need to arrange an oral
hearing must first be assessed separately. The testimony always had
the same evidentiary value, even when an oral hearing was omitted in
this context.
- As
to the applicant's reference to the witnesses' statements given to
the police in 2003, these could not have influenced the matter before
the administrative courts since leave to appeal had been refused in
2002.
2. The Court's assessment
- Article
6 is applicable under its criminal head to tax surcharge proceedings
(see Jussila v.
Finland, §
38). Regarding the parties' differing views on the role or impact of
the taxation procedure as regards criminal proceedings, the Court
notes that under Finnish practice the imposition of a tax surcharge
does not prevent criminal charges being brought for the same conduct.
That is, however, done in separate proceedings before a criminal
court.
- As
to the right to an oral hearing, the applicable principles are
outlined in the judgment in the case of Jussila v. Finland
(§§ 40-45). The Court does not doubt that checking
and ensuring that the taxpayer has given an accurate account of his
or her affairs and that supporting documents have been properly
produced may often be more efficiently dealt with in writing than in
oral argument (see Jussila v. Finland, § 47).
- In
the present case the applicant requested an oral hearing of his
evidence and that of the witnesses Mr T.L., Ms H.T. and Mr R.L.
- This
case can be distinguished from the case of Jussila in which
Mr Jussila's purpose in requesting a hearing was to challenge
the reliability and accuracy of the report on the tax inspection by
cross-examining the tax inspector and obtaining supporting testimony
from his own expert since, in his view, the tax inspector had
misinterpreted the requirements laid down by the relevant legislation
and given an inaccurate account of his financial position. The
reasons for requesting a hearing in the case of Jussila
therefore concerned in large part the validity of the tax assessment,
which as such fell outside the scope of Article 6, although there was
the additional question of whether the applicant's book-keeping had
been so deficient as to justify a surcharge. The Administrative
Court, which took the measure of inviting written observations from
the tax inspector and a statement from an expert chosen by the
applicant, found in the circumstances that an oral hearing was
manifestly unnecessary as the information provided by the applicant
himself formed a sufficient factual basis for the consideration of
the case. For those reasons, the Court in the Jussila case
found that the lack of an oral hearing did not give rise to a breach
of Article 6.
- In
its decision of 13 June 2001 the Administrative Court rejected the
present applicant's request for an oral hearing, finding that this
was manifestly unnecessary considering the evidence already submitted
and the nature of the case.
- The
applicant argued that there were issues of credibility which required
oral presentation of evidence to prove that the company had not
failed to enter any sales in the books and that he had not received
any benefits from the company that could be regarded as disguised
dividends.
- The
Court will therefore examine whether the protection of the
applicant's interests required the holding of an oral hearing before
the Administrative Court.
- The
Court observes that, pursuant to section 38(1) of the Administrative
Judicial Procedure Act, an oral hearing must be held if requested by
a private party. An oral hearing may, however, be dispensed with if a
party's request is ruled inadmissible or immediately dismissed or if
an oral hearing is clearly unnecessary due to the nature of the case
or other circumstances. The explanatory report of the relevant
Government Bill states that an oral hearing contributes to a focused
and immediate procedure, but since it does not always bring any added
value, it is important that the flexibility and cost effectiveness of
the administrative proceedings are not undermined. An oral hearing is
to be held when necessary for the clarification of the issues and the
hearing can be considered beneficial for the case as whole.
- In
the present case the Administrative Court was called upon to examine
the case as regards both the facts and the law. The applicant
disputed the facts upon which the imposition of tax surcharges was
founded, requesting an oral hearing of witness evidence in order to
elucidate the relevant events. The Administrative Court had to make a
full assessment of the case. The crucial question concerned the
clarification of facts and the credibility of the statements of the
applicant and the three witnesses who had been working for the
company. Nevertheless, the Administrative Court decided, without a
public hearing, to uphold the decision. The Court finds that, in the
circumstances of the present case, the question of the credibility of
the written statements could not, as a matter of fair trial, have
been properly determined without a direct assessment of the evidence
given in person by the applicant and by the witnesses proposed.
49. There
has accordingly been a violation of Article 6 § 1 of the
Convention as regards the refusal to hold an oral hearing in the
Administrative Court.
- In
view of the Administrative Court's firm conclusion that an oral
hearing could be dispensed with, the Court considers that it is not
necessary to examine separately whether the rights of the defence
were violated by reason of the court's refusal to hear oral evidence.
II. 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
- Under
the head of pecuniary damage the applicant claimed 30,657.12 euros
(EUR) for the taxes and tax surcharges which he had been ordered to
pay, plus 11 per cent interest from the date of payment (11 December
2000). The applicant considered that there was a clear causal link
between the damage and the alleged violation.
- Under
the head of non-pecuniary damage he claimed EUR 100,000 for
suffering and distress. It could not be ruled out that the unfair and
wrong treatment which the applicant had received in this matter from
the Finnish authorities and throughout the Finnish legal system had
been a contributing factor to his fatal illness (cancer). The
criminal investigation had lasted for several years from 21 December
1999 and the criminal court proceedings had not even begun when the
applicant died on 30 September 2005. These delayed proceedings were
in violation of Article 6 of the Convention. In consequence, the
applicant had not been able to return to working life or run any
business activity. Because of unfounded taxation, the applicant had
lost all his small assets. The Court should make a higher award than
usual.
- The
Government argued that there was no direct causal link between the
pecuniary damage and the alleged violation. Accordingly, no
compensation for pecuniary damage should be awarded.
- The
Government submitted that the present application did not concern the
length of proceedings and that any reference to a lengthy pre-trial
investigation as a basis for damage could not therefore be
considered. The award should not exceed EUR 4,000.
- The
Court cannot speculate about the outcome of the proceedings had they
been in conformity with Article 6. The Court has found a violation of
the applicant's right to a fair trial but finds no sufficient causal
link between that violation and any pecuniary damage. This claim must
therefore be rejected.
- As
to non-pecuniary damage, the Court notes that the application does
not concern the length of proceedings and that therefore no award can
be made in this regard. The Court has found that the applicant's
close heirs may claim compensation for non-pecuniary damage (see,
inter alia, Ernestina Zullo v. Italy [GC],
no. 64897/01, § 149, 29 March 2006). The Court accepts
that the lack of guarantees of a fair trial has caused the applicant
non-pecuniary damage, which cannot be made good by the mere finding
of a violation. The Court, making its assessment on an equitable
basis, awards the applicant EUR 3,000.
B. Costs and expenses
- The
applicant claimed EUR 9,151.44 (inclusive of
value-added tax) plus 11 per cent interest from 8 September 2002 for
the costs and expenses incurred before the domestic courts and EUR
8,052 (inclusive of VAT) for those incurred before the Court,
plus 11 per cent interest to accrue 30 days after
delivery of the judgment.
- The
Government submitted that, in the national proceedings, the costs and
expenses which related to the present complaint, namely those
concerning the request for an oral hearing, may amount to a maximum
of EUR 2,000 (including VAT). As to costs and expenses before
the Court, they considered the claim somewhat high taking into
consideration that there was only one complaint to deal with.
Accordingly, in the Government's view, EUR 7,000 (including VAT) was
reasonable for these costs and expenses.
- The
Court reiterates that an award under this head may be made only in so
far as the costs and expenses were actually and necessarily incurred
in order to avoid, or obtain redress for, the violation found (see,
among other authorities, Hertel v. Switzerland, judgment of 25
August 1998, Reports 1998-VI, p. 2334, § 63).
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court awards EUR 3,000
(inclusive of VAT) for the domestic proceedings. As to the Strasbourg
proceedings, the Court notes that the application was examined under
the joint procedure provided for under Article 29 § 3 of the
Convention. It considers it reasonable to award the applicant the sum
of EUR 5,000 (inclusive of VAT) for the proceedings before the Court.
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 on account of the refusal to hold an
oral hearing in the Administrative Court;
3. Holds that it is not necessary to examine
separately the applicant's complaint under 6 § 3 (d) of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant's heirs, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention
the following amounts:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable to
the applicant's heirs, 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 22 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
