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FIFTH
SECTION
CASE OF AFFLERBACH v. GERMANY
(Application
no. 39444/08)
JUDGMENT
STRASBOURG
24 June 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Afflerbach v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Karel Jungwiert, President,
Renate
Jaeger,
Mark Villiger, judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having
deliberated in private on 31 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39444/08) against the
Federal Republic of Germany lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a German national, Mr Reinhard
Afflerbach (“the applicant”), on 12 August 2008.
- The
applicant was represented by Mr G. Rixe, a lawyer practising in
Bielefeld. The German Government (“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry
of Justice.
- On
12 December 2008 the President of the Fifth Section decided to give
notice of the application to the Government. The Federal Republic of
Germany having accepted the provisional application of the provisions
of Protocol 14 governing the power of three judge committees to
decide on cases in which there is well-established case-law, it was
decided to assign the application to a Committee. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 3).
- The
applicant, while agreeing that the application was the subject of
well-established case-law, objected to the assignment of the case to
a Committee. He requested the Court to render a pilot judgment with
respect to the lack of an effective remedy under German law capable
of affording redress for unreasonable length of civil proceedings.
Having examined the applicant’s submissions, the Court rejects
his objection.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Bad Berleburg.
A. Background to the case
- The
applicant has a daughter who was born out of wedlock on 25 July 1997.
He lived with the mother of the child from April 1997 until their
separation on 29 June 1998. The daughter remained with the mother.
- Following
a request of the applicant for regulation of his contact rights
lodged with the Bad Berleburg District Court (Amtsgericht),
the parents concluded an agreement on 2 August 1999, pursuant to
which the applicant had the right to have contact with the child
every Sunday from 2 p.m. to 6 p.m. The last contact between the
applicant and his daughter took place on 24 October 1999.
- In November 1999 the mother and the daughter moved from
Bad Berleburg to Stralsund without notifying the applicant. The
mother has refused to allow any further contact between the applicant
and the child ever since.
B. The proceedings before the Stralsund District Court
- On
20 January 2000 the applicant lodged a request with the Stralsund
District Court for a new regulation of his contact rights on the
ground that following his daughter’s move to Stralsund the
considerable distance between their respective places of domicile
required a review of the relevant stipulations in the agreement
concluded on 2 August 1999. The mother objected by written
submissions dated 16 February 2000, alleging that following
meetings between the applicant and their daughter prior to her move
to Stralsund, the latter had shown signs of behavioural disorders.
- The
Stralsund District Court obtained the opinions of the Siegen
Wittgenstein District’s and Stralsund Youth Welfare Offices
dated 9 and 29 March 2000, respectively stating that the
mother alleged that the applicant had sexually abused their daughter
on the occasion of previous reunions.
- On
15 May 2000 the Stralsund District Court held a first hearing.
On 18
May 2000 the District Court ordered a psychological expert report,
which was rendered on 14 July 2000. The expert opinion did not
confirm the mother’s allegations of sexual abuse and
recommended a regulation of the applicant’s contact rights in
the interest of the child’s welfare.
- On
14 August 2000 the District Court scheduled a second hearing for
18 September 2000, which was postponed at the request of the
mother’s lawyer and finally cancelled following notification by
the applicant that he and his lawyer were not able to attend on the
rescheduled date.
- By a letter to the District Court dated 13 October
2000 the applicant pointed out that the mother had meanwhile refused
him contact with the child for almost a year, and asked for an
indication when a further hearing in the matter would take place.
- On
26 October 2000 the District Court scheduled a hearing for
16 November 2000, which was postponed to 25 January 2001 at the
request of the mother’s lawyer. The District Court heard the
parents, the appointed expert, the representative of the Stralsund
Welfare Office and an expert witness presented by the mother.
- By
decision of 14 February 2001, the Stralsund District Court held that
the suspicion of sexual abuse had not been confirmed and granted the
applicant the right to have supervised contact with the child from 9
am to 12 midday every third Friday of the month, in the presence
of a representative of the Stralsund Youth Welfare Office.
The
decision was served on the applicant on 10 April 2001.
C. The first set of proceedings before the Rostock
Court of Appeal
- On 9 May 2001 the mother lodged an appeal with the
Rostock Court of Appeal (Oberlandesgericht) asking for the
rejection of the father’s right of contact. The applicant
objected to the appeal by written submissions dated 28 June 2001 and
asked for an extension of his contact rights to two days per month
without monitoring.
- On
12 November 2001 the Rostock Court of Appeal heard the parents and
the representative of the Stralsund Welfare Office.
- By
a decision of 20 December 2001 the Rostock Court of Appeal
provisionally suspended the execution of the Stralsund District
Court’s decision of 14 February 2001 to the extent the
applicant had been granted contact rights that went beyond supervised
access. It further appointed a curator ad litem to represent
the child and decided to obtain a further psychological expert
opinion on a possible arrangement regarding the applicant’s
contact rights which was ordered on 1 March 2002. The mother, who had
meanwhile moved to Berlin with her daughter, refused any contact
between the curator ad litem and the child and rejected the
expert appointed by the Court of Appeal.
- On
5 August 2002 the expert rendered an opinion on the basis of an
examination of the applicant on which both the mother and the
applicant commented by written submissions on 16 September and 16
October 2002 respectively.
- On
23 October 2002 the Court of Appeal scheduled a hearing for
27 January 2003 that was not attended by the mother or the child
due to the latter’s sickness and therefore had to be postponed
to 3 March 2003.
- On 3 March 2003 the Court of Appeal heard the child,
the parents, the child’s curator ad litem and the
representative of the Stralsund Youth Welfare Office. The mother
again refused an examination of the child and herself by the
appointed expert.
- On
19 March 2003 the Court of Appeal specified its decision to take
evidence dated 20 December 2001 with a view to obtaining a
psychological expert opinion on the question whether there was any
indication of sexual abuse of the child by the applicant and whether
contact between the applicant and the child was in the interest of
the child’s welfare. The Court of Appeal further reconfirmed
the appointment of the previously nominated expert.
- On
15 July 2003 the Court of Appeal scheduled a hearing for 17 November
2003, after three attempts in April, June and July 2003 by the expert
to schedule appointments with the mother for an examination had
failed. A representative of the Youth Welfare Office as well as the
child’s curator ad litem were present at the hearing. At
the request of the mother the child’s psychotherapist was heard
as a witness.
- By
a decision dated 28 January 2004 the Court of Appeal suspended the
applicant’s contact rights until 31 December 2007 and obliged
the mother to report to the applicant on the personal development of
his daughter. The Court of Appeal held that even though it was not
convinced of the mother’s accusations that the child had been
sexually abused by the applicant, it was not in the interest of the
child’s welfare to grant the father right of contact. It found
that the parents’ relationship had completely deteriorated and
an enforcement of the applicant’s contact rights against the
will of the mother would put even more pressure on the child.
- On
3 March 2004 the applicant lodged a constitutional complaint with the
Federal Constitutional Court.
- On
9 June 2004 the Federal Constitutional Court set aside the decision
of 28 January 2004 and remitted the case to the Rostock Court of
Appeal. The Federal Constitutional Court found that the applicant’s
right to the care and upbringing of his child had been infringed on
the ground that the Court of Appeal had not sufficiently taken into
account the welfare of the child and the parenting right of the
father in its decision.
D. The second set of proceedings before the Rostock
Court of Appeal
- On
3 November 2004 the Court of Appeal again heard the parents, the
child’s curator ad litem and the representative of the
Stralsund Youth Welfare Office.
- On
19 November 2004 the Court of Appeal heard the daughter.
- By
decision dated 13 December 2004 the Court of Appeal confirmed its
order to obtain an expert opinion dated 19 March 2003 and reappointed
the same expert who had previously been nominated and rejected by the
mother. It further asked for an opinion by the Berlin-Neukölln
Youth Welfare Office which had become locally competent following the
mother’s move to Berlin. The opinion was delivered on 18
January 2005.
- On
8 April 2005 the Court of Appeal rejected a challenge lodged by the
mother for bias on the part of the expert on the ground that it had
been lodged outside the statutory time-limit.
- On
11 May 2005 the Court of Appeal instructed the expert to render an
opinion on the basis of the exploration of the father and the case
file, after having been informed on 4 May 2005 that an attempt by the
expert to meet with the mother had failed due to the mother’s
objection.
- On
8 August 2005 and on 11 October 2005 the Court of Appeal inquired why
the expert opinion had not yet been finalised.
- On
14 October 2005 the expert opinion was delivered and served on the
applicant on 24 October 2005. According to the findings of the expert
there were no substantiated indications that the child had been
sexually abused by the father.
- On
12 January 2006 a further challenge lodged by the mother for bias on
the part of the expert was rejected by the Court of Appeal.
- On
17 January 2006 the Court of Appeal scheduled a further hearing for
14 February 2006, which the mother and child did not attend and
which was therefore rescheduled for 17 March 2006. On the
occasion of the hearing the child, the parents, the curator ad
litem and a representative of the Neukölln Youth Welfare
Office were heard.
- By
a decision of 20 April 2006, the Court of Appeal deprived the mother
of custody of the child to the extent that her approval of the
child’s examination by an expert was concerned, and appointed
the Neukölln Youth Welfare Office as the child’s guardian
(Ergänzungspfleger) in this respect. The Court of Appeal
further obliged the mother to permit the guardian contact with the
child and instructed the bailiff to enable such contact, by force
if need be.
- Nevertheless,
the mother obstructed two subsequent attempts by the Youth Welfare
Office on 26 September and 20 October 2006 to collect the child with
a view to bringing her to the expert for examination.
- On
13 December 2006 the Court of Appeal informed the expert that the
examination of the child should be finalised by 31 January 2007.
It asked the expert to schedule further dates for a
corresponding appointment and instructed the appointed guardian at
the Neukölln Youth Welfare Office to see to it that such
appointments were implemented.
- On
9 January 2007 the guardian informed the Court of Appeal that in her
opinion a forced meeting with the expert would not be in the interest
of the child’s welfare.
- On
16 January 2007 the expert informed the Court of Appeal that the
guardian had not brought the child to appointments scheduled for 9
and 16 January 2007.
- On
22 January 2007 the child’s curator ad litem pointed out
that an examination of the child had been ordered by the Court of
Appeal on 19 March 2003 but had still not occurred to this
date and denounced the guardian’s refusal to implement the
Court of Appeal’s orders.
- In
reply to an inquiry by the Court of Appeal of 23 January 2007, the
Head of the Neukölln Welfare Youth Office supported the decision
of the guardian not to proceed to an examination of the child by
force.
- By
decision of 20 March 2007 the Court of Appeal amended its decision of
20 April 2006 and appointed a new guardian for the child. An attempt
by the newly appointed guardian to call for the child on 3 July 2007
was to no avail.
- On
13 July 2007 the Court of Appeal further amended its decision of
20 April 2006 and obliged all third persons in charge of the
child to hand her over to the guardian for the purpose of examination
by the expert.
- On
17 March 2008, following a further move of the mother and daughter to
Bad Zwesten-Oberurff, the Court of Appeal appointed a new expert for
the child’s examination and the Schwalm-Eder District Youth
Welfare Office as a new guardian for the child.
- A
first contact between the guardian and the mother was established on
28 April 2008. Furthermore, the newly appointed expert confirmed
by a letter dated 18 June 2008 that the mother had attended a first
appointment for examination.
- On
5 August 2008 the applicant lodged a constitutional complaint with
the Federal Constitutional Court regarding the lack of an effective
remedy as regards the length of the instant proceedings.
- On
15 December 2008 the expert opinion was submitted to the Court of
Appeal who set a deadline of three weeks for comments by the parties.
According to the expert, the daughter’s rejection of her father
constituted a strategy adopted by the child with a view to handling
the tense situation caused by her mother’s conduct.
Furthermore, due to the passage of time a scientific clarification of
the allegations of sexual abuse was no longer possible. In their
written submissions the applicant as well as the Youth Welfare Office
asked for an additional assessment in writing by the expert whether
and under which conditions contacts between the applicant and his
daughter could be established. By a letter of 26 January 2009
the Court of Appeal made the related request and the expert submitted
her additional observations to the court on 6 February 2009.
The expert found that there was a risk that contact against the
daughter’s will would further unsettle her.
- On
the occasion of a hearing on 18 May 2009 the parties and the child’s
guardian and curator ad litem were heard. The guardian
objected to a forced establishment of contacts between father and
daughter. The applicant’s daughter was also heard by the
court and objected to having contact with her father. A supplementary
expert statement was ordered by the court and submitted on 15 June
2009. In his written observations of 3 July 2009 the
applicant contested the expert’s supplementary statements. The
expert commented by written submissions of 27 July 2009. A further
request by the court for clarification was answered by the expert on
17 August 2009 and was forwarded to the parties for final
observations.
- By
a judgment of 25 November 2009 the Court of Appeal amended the
decision of the Stralsund District Court dated 14 February 2001
and regulated the applicant’s contact rights for the period
until 31 July 2011. It obliged the mother to inform
the applicant twice a year in writing about their daughter’s
development and to communicate her current address. The applicant
was granted the right to send a letter and photos to the child once a
month through an independent intermediary to be appointed by the
guardian. No further contact rights were granted. Relying in
particular on the findings of the expert as well as the guardian and
the daughter’s own statements, the court held that for the time
being personal contact between the applicant and his daughter against
the latter’s will would be contrary to the best interest of the
child. The judgment was served on the applicant on 30 November 2009
and has become final.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 and 8 of the Convention about
the length of the proceedings regarding the determination of his
contact rights in respect of his daughter.
- The
Court who is the master of the characterisation to be given in law to
the facts of the case (see Kutzner v. Germany, no. 46544/99, §
56, ECHR 2002 I) considers that the complaint raised by the
applicant under Article 8 is closely linked to his complaint under
Article 6 and will accordingly be examined solely under Article 6 §
1 of the Convention, which, in so far as relevant, 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 while acknowledging the considerable duration of the
proceedings contested that argument. They contended that even though
the proceedings might not have been complex their conduct had
nevertheless been of a certain difficulty since the case had not only
required the taking of evidence from the parents, the child and the
Youth Welfare Office but had also involved the appointment of a
guardian and a curator ad litem as well as the
commissioning of expert opinions. While conceding that the
applicant’s conduct had not contributed to the long duration of
the proceedings, they adduced that their length had been mainly due
to the obstructive behaviour of the mother and that the Court of
Appeal’s procedural means to react to such behaviour and to
expedite the proceedings had been limited. As to what was at stake
for the applicant, the Government pointed out that following the
Stralsund District Court’s decision of 14 February 2001
the applicant would have been entitled to exercise his right to
supervised contact thereby limiting the negative impact the length of
the proceedings had on the relation with his daughter.
- The
period to be taken into consideration began on 20 January 2000
when the applicant lodged his request for regulation of his contact
rights with the Stralsund District Court and ended on
30 November 2009, the day on which the Rostock Court of
Appeal’s judgment of 25 November 2009 was served on
the applicant. It thus lasted over 9 years and 10 months for three
levels of jurisdiction including a remittal.
A. Admissibility
- 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
- 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). In cases relating to civil status,
what is at stake for the applicants is
also a relevant consideration, and special diligence is required in
view of the possible consequences which the excessive length of
proceedings may have, notably on enjoyment of the right to respect
for family life (Laino v. Italy
[GC], no. 33158/96, § 18, ECHR 1999-I).
- 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.
- In
this context the Court places special emphasis on the importance of
what was at stake for the applicant. It reiterates that in particular
in cases concerning a person’s relationship with his or her
child there is a duty to exercise exceptional diligence in view of
the risk that the passage of time may result in a de facto
determination of the matter (see Süß v. Germany,
no. 40324/98, § 100, 10 November 2005). The Court takes
note of the Government’s submissions in this respect that ever
since the Stralsund District Court’s decision of 14 February
2001, the applicant could have exercised his right to supervised
contact with his daughter thereby limiting the negative impact the
duration of the subsequent proceedings before the Rostock Court of
Appeal had on the relation with his child. However, the Court finds
that it must have been obvious to the Court of Appeal that supervised
access was not practicable given the obstructive conduct of the
mother and the inactivity of the competent Youth Welfare Office.
In addition, any contact would have been overshadowed by the
serious allegations of sexual abuse which also were of relevance for
the regulation of the applicant’s contact rights. The Court
therefore finds that an expeditious clarification of the
circumstances of the case was of particular importance for the
applicant with a view to preventing a further alienation of the child
and to finding a regulation of the applicant’s contact rights
in the child’s best interest. The particular circumstances of
the case placed in particular the Court of Appeal under a specific
obligation to take special precautions in order to prevent any
unnecessary delays, such as adhering to a very close time-schedule
and closely supervising the taking of evidence.
- As
to the conduct of the proceedings, the Court accepts that the
domestic courts were faced with the obstructive behaviour of the
mother and that the procedural means to react to such behaviour and
to expedite the proceedings and in particular the mother’s
cooperation with the expert might have been limited to some extent.
The Court further acknowledges that the hearing of extensive expert
evidence and the taking of expert opinions with respect to the
regulation of the applicant’s contact rights required a certain
period of time. While accepting that these circumstances may to some
extent justify the duration of the proceedings at first instance, the
Court nevertheless finds that there have been substantial periods of
delay during the proceedings before the Court of Appeal in this
respect.
- The
Court notes in particular that the additional examination of the
child by the expert in connection with the mother’s allegations
of sexual abuse was ordered by the Court of Appeal only on 19 March
2003, approximately one year after the expert had been instructed to
render an opinion on a possible arrangement of the applicant’s
contact rights and even though it was clear since the first instance
proceedings that clarification of these allegations were of
significance for the determination of the applicant’s contact
rights.
- Furthermore,
the Court cannot ignore that following the Court of Appeal’s
order of 19 March 2003 it took more than five years until
an examination of the child by an expert occurred. Notwithstanding
the Court of Appeal’s order, an examination of the child by the
expert did not take place during the first set of proceedings before
the Court of Appeal which ended by the court’s decision of 28
January 2004. Following the remittal of the case by the prompt
decision of the Federal Constitutional Court dated 9 June 2004,
it took until 15 December 2008 before an expert opinion
based on the child’s examination was obtained by the Court of
Appeal. It was only on 20 April 2006 that the Court of
Appeal decided to deprive the mother of custody of the child to the
extent that her approval of the child’s examination by an
expert was concerned and to appoint a guardian for the child in this
respect. It further took until 17 March 2008 for the Court of Appeal
to appoint a new expert instead of the one initially appointed in
2001 and who had ever since been rejected by the mother.
- In
view of the above considerations, the Court considers that the
Rostock Court of Appeal did not display the required diligence in the
conduct of the proceedings before it.
- 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.
II. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention that
he did not have at his disposal an effective domestic remedy for his
complaint concerning the length of the proceedings.
Article
13 reads 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 did not contest this argument. They pointed out that the
Ministry of Justice was in the process of elaborating a draft bill
for the implementation of a domestic remedy in this respect.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The Court has already held that there is no effective
remedy under German law capable of affording redress for unreasonable
length of civil proceedings (see Sürmeli v. Germany
[GC], no. 75529/01, §§ 103-108, ECHR 2006-VII, and Herbst
v. Germany, no. 20027/02, §§ 65-66,
11 January 2007). It takes note of the Government’s
submissions according to which the elaboration of a solution in this
respect is still under way.
- Accordingly,
the Court considers that the applicant did not have an effective
remedy within the meaning of Article 13 of the Convention which
could have expedited the contact right proceedings or provided
adequate redress for delays that had already occurred.
- There
has therefore been a violation of Article 13 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 26,494.48 euros (EUR) in respect of pecuniary
damage with respect to child maintenance paid in the period from
January 2000 to May 2009 on the ground that during this period he was
deprived of his rights and duties as a parent due to the domestic
courts’ failure to conduct the proceedings expeditiously.
- In
respect of non-pecuniary damage, the applicant maintained that the
excessive length of the proceedings resulted in his child being
alienated from him which had caused him considerable distress and
frustration. Furthermore, the mother’s allegations of sexual
abuse had forced him to give up his political career. In view of what
was at stake for him the applicant therefore claimed EUR 20,000.00 in
respect of non-pecuniary damage for the excessive length of the
proceedings. He further claimed an additional amount of EUR 10,000 as
regards the lack of an effective remedy before the national courts in
this respect.
- The
Government argued that the applicant’s claim for pecuniary
damages had no connection with the delays to the proceedings since
the applicant would have been under an obligation to pay child
maintenance in any event, irrespective of the dispute regarding his
contact rights.
- As
regards the non-pecuniary damage claimed, the Government argued that
the applicant’s claims were excessive.
- The
Court observes that the pecuniary damage alleged by the applicant was
not caused by the length of the proceedings before the domestic
courts and therefore does not discern any causal link between the
violation found and the pecuniary damage alleged. Accordingly, it
considers that no award can be made to the applicant under this head.
- On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage as a result of the excessive length of
the proceedings. Ruling on an equitable basis and having regard to
the nature of the Convention violations it has found, it awards him
EUR 7,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 1,489.52 corresponding to his lawyer’s
fees in connection with the constitutional complaint regarding the
length of the proceedings, EUR 12,521.52 for the residual costs
and expenses incurred before the domestic courts and EUR 2,933.83 for
those incurred before the Court.
- The
Government contested these claims. They submitted that the costs
claimed for the proceedings before the national courts were only
partly caused by the length of the proceedings. Furthermore, the
costs for the proceedings before the Federal Constitutional Court
could not be claimed, as the Court, in its judgment of Sürmeli
v. Germany, had found that a constitutional complaint was not an
effective remedy against proceedings that lasted too long. As regards
the costs incurred before the Court, the Government maintained that
the applicant had failed to indicate the number of actual hours spent
by his lawyer on the case or the hourly rate charged, which made it
impossible to judge whether the amount claimed was reasonable.
- 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. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers that the applicant has not established that the costs and
expenses claimed for the proceedings before the domestic courts were
incurred by him in order to seek prevention or rectification of the
specific violation caused by the excessive length of the proceedings.
However, seeing that in length of proceedings cases the protracted
examination of a case beyond a “reasonable time” involves
an increase in the applicants’ costs (see, among other
authorities, Sürmeli v. Germany [GC], no. 75529/01,
§ 148, ECHR 2006 ...), it does not find it
unreasonable to make to the applicant an award of EUR 500 under
this head. The Court further considers it reasonable to award the sum
of EUR 2,933.83 covering costs for the proceedings before the
Court in full.
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;
- 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,
(i)
EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage;
(ii)
EUR 3,433.83 (three thousand four hundred thirty-three euros and
eighty-three cents) in respect of costs and expenses;
(iii)
any tax that may be chargeable to the applicant on the above amounts;
(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 24 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Karel Jungwiert
Deputy Registrar President
