CASE OF KOVAC v. CROATIA

FIRST SECTION

CASE OF KOVAČ v. CROATIA

(Application no. 503/05)

JUDGMENT

STRASBOURG 

12 July 2007

FINAL

12/10/2007

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 Kovač v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 21 June 2007,

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

PROCEDURE

1. The case originated in an application (no. 503/05) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Tomislav Kovač (“the applicant”), on 17 December 2004.

2. The applicant was represented by Mr B. Kozjak, a lawyer practising in Virovitica. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

3. On 5 December 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1978 and lives in Virovitica.

5. At some time in 2002 an investigation was opened before the Virovitica County Court (Županijski sud u Virovitici) concerning an allegation of indecent act against a minor (a girl of twelve). On 22 April 2003 the applicant was heard by an investigating judge. He was informed of his right to be legally represented, but chose to represent himself. On 3 May 2002 the alleged victim, M.V., gave evidence before an investigating judge in the presence of a psychologist. The applicant, who at this stage was not represented by a lawyer, was not present. The Government submitted a copy of the court's summons sent to the applicant. The transcript of the hearing before the investigating judge shows that the applicant was not present, without further comments on the reasons for his absence. The transcript of M.V.'s testimony reads as follows:

“One day my parents sent me to see Tomo Kovač [the applicant] to get cigarettes and our bicycle, which we had lent to Tomo. I went to Tomo's house. I was wearing underwear, tights, trousers and a T-shirt. I do not remember exactly when all this happened. When I arrived at Tomo's house I spent some time in his father Feri's workshop. Then Tomo came and took me to his flat. His wife Danijela and their son Željko were there. Tomo told me straight away that we had to go into a room and that he was going to examine me. I did not want to go into the room and Tomo hit me twice with a wooden spoon on my hands and shoulder. His wife, Danijela, told him not to hit me and Tomo hit her hands with the spoon too. Tomo also hit his son, Željko. Then he took me by the hand and led me to the room, where we were alone. He took off my trousers, tights and underwear and threw me on a bed. I was lying on my back and Tomo was touching me with his hand on the upper part of my body over my T-shirt. Afterwards he also touched my genitals, and he did that for some time. Then he told me that I should not tell anyone about it. I cannot say how long it lasted. Tomo then told me to get dressed, which I did, and then we left the room and went back to the kitchen, where we joined Danijela and Željko. Tomo had touched my genitals with his hand, but he had not put his finger inside me. When we returned to the kitchen, Tomo gave me some money and told me to buy myself something and go home. He also said that he would not give me the cigarettes because I might lose them on my way home. Then I went back home on my parents' bike. When I got back home my parents asked me if I wanted to have dinner but I refused and went to bed. I did not tell my parents anything [about what had happened to me] that evening or the next day. The next day when I was at school my mother and Tomo came to take me out of school. My mother took me to the police station to make a statement about what had happened at Tomo's. I told the police that Tomo had touched me because that was what had really happened. I attend fifth grade of a special school and am a very good pupil. I cannot read or write but I can count to ten. At first I did not tell my parents what happened at Tomo's, because I was afraid of them and I did not dare tell them about it.”

It was also noted that contact with M.V. had been established with difficulty.

6. On 29 November 2002 the Bjelovar State Attorney's Office (Općinsko državno odvjetništvo Bjelovar) filed a bill of indictment against the applicant charging him with an act of indecency against a minor (bludna radnja).

7. On an unspecified date the trial against the applicant opened before the Virovitica Municipal Court (Općinski sud u Virovitici). On 25 February 2003 the trial judge asked for a psychiatrist's opinion on M.V.'s mental health and development. The report, submitted on 10 March 2003, reads, inter alia, as follows:

“...[M.V.] is joyful and curious, she touches everything and asks a lot of questions, as a child would. She strongly deviates from the standard behaviour for a child of her age. Physically she is healthy. When asked a direct question about her age, she answers: 'Twelve, I don't really know, give me that pencil, this watch, a telephone.' She does not know the days of the week, she cannot count, does not know the alphabet, and writes her name with difficulty, automatically, without understanding what she is doing. She can't tell the time. She knows her parents' address. She likes to play with the telephone.

She has difficulty talking about the event in question, as she remembers only parts of it. She just repeats that Tomo Kovač shouted at her and hit her with a wooden spoon, with which he also hit his child.”

8. The trial court held a hearing on 22 April 2003. In his defence before the trial court the applicant denied the charges. M.V. was also summoned. It was then recorded, in the presence of the applicant, a psychologist and a deputy state attorney, that M.V. upheld the statement she had made before the investigating judge. This statement was not read out. M.V. added that on the afternoon she had gone to the Kovač residence. Nobody, including Franjo and Tomo Kovač, had given her any money. The deputy state attorney then asked that M.V. be questioned without the applicant being present. The request was granted and the applicant was removed from the courtroom. The applicant, still unrepresented, had not had the opportunity to prepare any questions for the witness beforehand. The transcript of M.V.'s further statement, made in the applicant's absence, reads as follows:

“I am afraid of Tomo Kovač because he attacks me all the time and tells me to go to see his father. This morning, before the hearing, he threatened to beat me up on my way back home from the court. That is all I have to say.”

This statement was then read to the applicant who denied having threatened M.V. and said that he had not even seen her that morning before he arrived at the court. The psychologist present stated that the applicant's intellectual level corresponded to that of an average child of five years and four months.

9. The court also heard evidence from the applicant's partner who stated that M.V. had said that she had been naked with the applicant's father in his workshop before coming to the house. Other witnesses were also heard, none of whom had seen the alleged acts and who gave evidence only on the subsequent events.

10. In its judgment of 22 April 2003, the Virovitica Municipal Court convicted the applicant of an act of indecency against a minor and sentenced him to six months' imprisonment. It based the applicant's conviction to a decisive degree on the statement made by M.V. before the investigating judge. The relevant part of judgment reads as follows:

“The victim gave a detailed statement of the episode with the defendant, alleging that the defendant had forced her to go into a bedroom, hitting her on her body with a wooden spoon with which he had also hit his partner, and that once in the bedroom, in a state of excitement, he had told her to take off her clothes and touched her with his hands on the upper and lower parts of her body. He had then ordered her to put her clothes back on and warned her not to tell anyone about what had happened.

Psychological tests on the victim were carried out a year after the above-mentioned event. In the interview with the psychologist the victim made it clear that the subject of their conversation was the incident when the defendant had touched her body.

Bearing in mind the consistency of the victim's testimony and that, according to the psychiatrist's report submitted, she had not been able to resist the defendant due to the fact that she was mentally challenged, it can be concluded that the defendant had acted against the victim in the manner described in the indictment.”

11. In his subsequent appeal the applicant, now represented by defence counsel, denied the charges against him and also complained that he had not been given an opportunity to question M.V. In particular, he argued that M.V.'s testimony should have been given in a separate room and tape-recorded so that he could have had the opportunity to hear it. He further pointed out that the transcript of the statement she made before the investigating judge could not possibly correspond to what she had actually said, because the language used in the transcript did not resemble that of a mentally challenged girl who, at the age of 12, could not read or write and did not know the names of any of her teachers. The applicant also complained that due to his poor education he had not been able to protect his own interests and that therefore a lawyer had to be appointed to him from the very beginning of the proceedings.

12. On 26 June 2003 the Virovitica County Court dismissed the appeal. As to the applicant's objection in respect of the language attributed to M.V., the County Court accepted that the wording of her testimony had been formulated by the investigating judge and that the testimony would have sounded more convincing had it reproduced M.V.'s own words. However, the court found that this shortcoming did not amount to a significant procedural defect. The appellate court made no comments on the applicant's complaint concerning his lack of opportunity to question M.V, and concentrated mainly on the question of M.V.'s reliability as a witness. The relevant part of the appellate court's judgment reads as follows:

“... Bearing in mind the provision of Article 191 of the Code of Criminal Procedure (Official Gazette no. 58/2002), the defendant's argument that at the main hearing held on 22 April 2003 the victim should have given testimony in accordance with the rules laid down in Article 238 para. 5 of the Code of Criminal Procedure and Section 119 of the Act on the Juvenile Courts (Official Gazette no. 11/1997 with further amendments) – that is, in a separate room and video recorded – is well founded. However, this method of questioning a witness is prescribed only for the purposes of protecting the witnesses themselves and is not a prerequisite for the testimony to be valid. Therefore, such a procedural error did not and could not have any effect on the [first-instance] judgment.

Contrary to the arguments in the appeal, the factual background has been adequately and thoroughly established in the impugned judgment. The first-instance court was right in trusting the consistent testimony of the victim on the basis of which it established the relevant facts in the proceedings.”

13. On 30 July 2003 the applicant lodged a request for extraordinary review of a final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude) with the Supreme Court (Vrhovni sud Republike Hrvatske) whereby he argued that his right to a defence had been violated during the trial because he had not been allowed to question M.V. On 15 January 2004 the court dismissed the applicant's request finding as follows:

“The case-file shows that ... the defendant had been temporarily removed from the courtroom during the testimony of the victim, M.V. However, upon his return to the courtroom he was informed about the content of her statement and was able to give his objections and ask questions. For these reasons, temporary removal of the applicant from the courtroom did not violate his defence rights at the hearing”

14. The applicant then lodged a constitutional complaint against the Supreme Court's decision whereby he claimed that his right to examine or have examined a witness against him had been violated, reiterating his previous arguments.

15. On 28 May 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the complaint inadmissible on the ground that it did not concern the merits of the case. The decision was served on the applicant's counsel on 24 June 2004.

II. RELEVANT DOMESTIC LAW

16. The relevant parts of the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows.

Article 248

“(1) Each witness shall be questioned separately without the presence of other witnesses. A witness is obliged to answer orally.

(2) A witness shall firstly be asked to provide his or her name, father's name, occupation, place of residence, place of birth, age and his or her relation to the defendant and the victim.

(3) The witness shall then be informed that he or she is obliged to tell the whole truth and that making a false statement is a crime. A witness shall also be informed that he or she is not obliged to answer a question from Article 246 of this Code, and this notification shall be recorded in the transcript.

(4) Questioning of a minor, especially if he or she is a victim, shall be undertaken with special precautions so as to avoid any possible influence on his or her psychological well-being.

(5) A child who is a victim of the offence in question shall give testimony with the assistance of a psychologist, school counsellor [pedagog] or other qualified person. The investigating judge shall order the video recording of the testimony. The judge and the parties to the proceedings may not be present in the room with the child, but the parties may ask questions through the investigating judge, psychologist, counsellor or other qualified person.

...”

Article 346

“...

(3) If, at the main hearing before a trial court, evidence is to be heard from a child who is a victim of the offence in question, the panel may decide that the child's evidence be heard before the president of the panel alone. Questioning of a child shall always be conducted in accordance with Article 248 paragraph 5 of this Code.

...”

Pursuant to Article 430, where the defendant requests an amendment of a final judgment following a finding of a violation of, inter alia, defence rights, by the European Court of Human Rights, the rules governing a retrial shall apply.

17. The relevant parts of the Juvenile Courts Act (Zakon o sudovima za mladež, Official Gazette nos. 11/1997, 27/1998 and 12/2002) read as follows:

Section 117

“Juvenile courts shall try adults for the following offences committed against children and minors ...

– indecent acts ...”

Section 119

“(1) When conducting proceedings concerning offences against children and minors a judge for minors and an investigating judge shall take special precautions when dealing with a child or a minor who is a victim of the offence in question, bearing in mind the child's age, personality traits, level of education and life circumstances, so as to avoid possible damaging effects on his or her development.

(2) A child or a minor who is a victim of an offence under section 117 of this Act shall give their testimony no more than twice in the proceedings. Questioning shall be conducted in the presence of a psychologist, counsellor or other qualified person. The investigating judge shall order the video recording of the testimony. The judge and the parties to the proceedings shall not be present in the room with the child, but the parties may ask questions through the investigating judge, psychologist, counsellor or other qualified person.

(3) Children and younger minors [aged 14-16] who are witnesses to or victims of the offence in question may give their testimony at home or at a welfare centre. Questioning shall be conducted in accordance with paragraph 2 of this section.

(4) When a child or a younger minor has been questioned in accordance with paragraphs 2 and 3 of this section, their statement shall always be read out or the recording of the testimony viewed at the main hearing.

(5) Evidence recorded on audio or video tape shall be destroyed five years after the judgment becomes final.

...”

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

18. The applicant complained that, in the criminal proceedings against him, he was deprived of a fair trial in that he was not able to put questions to M.V. as a witness against him. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which in its relevant parts reads:

“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;

...”

19. The Government contested that argument.

A. Admissibility

20. 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

Submissions of the parties

21. The Government submitted that the domestic rules governing the testimony of children and minors in criminal proceedings complied with the international standards for the protection of such witnesses. Under the domestic law, such witnesses were to be heard in a protected environment in the presence of a qualified specialist, such as a psychologist or a psychiatrist, without the defendant being present, and their testimony recorded. As to the facts of the present case, they submitted that the first part of M.V.'s testimony had been given in the applicant's presence, while only her additional testimony, referring to events not related to the offence in question, had been given in his absence. However, the applicant had objected only to the second part of M.V.'s testimony. Furthermore, although he had been informed of his right to be legally represented, the applicant had chosen to represent himself. Thus, his defence rights had been adequately protected. In support of their arguments, the Government cited the parts of the Virovitica County Court's judgment of 26 June 2003 referring to the veracity of M.V.'s statements and her mental capacity to give a reliable account of the events in question. Finally, the Government submitted that the proceedings before the domestic courts taken as whole had been fair and in compliance with Article 6 §§ 1 and 3 of the Convention.

22. The applicant argued that the only statement that M.V. had made in the entire proceedings concerning the events in question had been made before the investigating judge on 3 May 2002 without him being present. Contrary to the Government's argument, M.V. had not given testimony in his presence at the hearing before the trial court on 22 April 2003. At that hearing it had only been stated, namely by the trial judge, that M.V. upheld the statement she had made before the investigating judge. M.V. had not repeated that statement at the trial, nor it had been read out. M.V. had then made her additional statement concerning the events of that same morning. This additional statement had been made without the applicant being present and had only been read to him by the trial judge. The applicant questioned the veracity of the additional statement, but was not able to comment on M.V.'s previous statement before the investigating judge because it had not been read to him. He further argued that he had not been able to understand the information given to him by the trial judge concerning his right to question the witnesses, the presumption of innocence and his right to defend himself due to his poor education and the complexity and formalism of criminal proceedings. Therefore, the domestic authorities should have appointed him a legal representative at the outset of the proceedings. In any event, the applicant had never had an opportunity to question M.V. in any manner.

The Court's assessment

23. The Court reiterates that the guarantees in Article 6 § 3 (d) of the Convention are specific aspects of the right to a fair trial set forth in the first paragraph of that Article. Consequently, the complaint will be examined under the two provisions taken together (see, for instance, Yavuz v. Austria, no. 46549/99, § 44 with further references, 27 May 2004).

24. With regard to the circumstances of the present case, the Court observes that the statement made by M.V. was virtually the sole evidence on which the courts' findings of guilt were based. The other witnesses heard by the trial court had not seen the alleged acts and gave evidence only on the subsequent events. The appellate court concentrated mainly on the reliability of M.V.'s testimony, considering it to be of decisive importance in determining the applicant's guilt. It must therefore be examined whether the applicant was provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 of the Convention in respect of the evidence given by M.V.

25. The Court reiterates at the outset that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair. All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that the statement of a witness must always be made in court and in public if it is to be admitted in evidence; in particular, this may prove impossible in certain cases (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 27).

26. The Court further reiterates that the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 1 and 3 (d) of Article 6, provided that the rights of the defence have been respected. As a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings (see, among other authorities, Isgrò v. Italy, judgment of 19 February 1991, Series A no. 194-A, p. 12, § 34; and Lucà v. Italy, no. 33354/96, §§ 40-43, ECHR 2001-II).

27. In appropriate cases, principles of fair trial require that the interests of the defence are balanced against those of witnesses or victims called upon to testify. In this respect, the Court has had regard to the special features of criminal proceedings concerning sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question whether or not in such proceedings an accused received a fair trial, the victim's interest must be taken into account. The Court therefore accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence. In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicaps under which the defence labours (see S.N. v. Sweden, no. 34209/96, § 47, ECHR 2002‑V with further references).

28. Turning to the facts of the instant case, the Court notes that M.V. gave evidence before the investigating judge without the applicant being present. As to the Government's argument that the applicant had been summoned to a hearing before the investigating judge at which M.V. gave evidence, it is to be noted that although the Government produced a copy of the summons sent to the applicant, they failed to show that the applicant had actually received the summons. Furthermore, the transcript of that hearing does not contain any comments as to the reasons for the applicant's absence or whether he had been duly summoned. M.V.'s testimony was recorded in writing. However, it is to be noted that the language of the written transcript of her statement is very formal and contains elaborate sentences which could not possibly correspond to her actual manner of expression. The report drawn up by the psychologist notes that M.V. was a mentally challenged child who expressed herself with difficulty, could not read, write or count and barely remembered the event in question; in this connection, she simply repeatedly stated that the applicant had hit her with a wooden spoon with which he had also hit his son. Therefore, M.V.'s statement had obviously been worded by the investigating judge, as the Virovitica County Court confirmed in its judgment of 26 June 2003.

29. As to the hearing conducted before the Virovitica Municipal Court on 22 April 2003, the Court notes at the outset that the transcript of that hearing shows that M.V. did not repeat the statement she had made before the investigating judge. What is more, her previous testimony was not reproduced before the trial judge in any manner. It was simply recorded that M.V. upheld the statement she had made at the investigation stage of the proceedings. The Court notes that this must also have been worded by the trial judge, since M.V. was certainly not capable of such comprehension of the criminal proceedings or formal legal expression. Therefore, the Government's submission that the first part of M.V.'s testimony, referring to the events in question, had been given in the applicant's presence cannot be sustained. M.V. did not give her statement in the applicant's presence and she made no statement before the trial court which referred to the events in question. She only made an additional statement before the trial judge which, however, did not refer to the offence that the applicant was charged with. In any case, even this additional statement was made in the applicant's absence.

30. In these circumstances, the Court considers that the statement made by M.V. before the investigating judge, which was the only direct evidence of the facts held against the applicant, must be regarded as having been of decisive importance for the courts' finding of the applicant's guilt, despite the fact that neither at the stage of the investigation nor during the trial was the applicant given the opportunity to examine or have the victim examined. The Court notes that the applicant was not provided with an opportunity to observe the manner in which the child was questioned by the investigating judge. This could have been arranged, for instance, by the applicant watching M.V. giving her statement in another room via technical devices. Furthermore, because M.V.'s statement to the investigating judge was not recorded on videotape, neither the applicant nor the trial court judges were able to observe her demeanour under questioning and thus form their own impression of her reliability (see Bocos-Cuesta v. the Netherlands, no. 54789/00, § 71, 10 November 2005). The applicant was not at any stage of the proceedings provided with an opportunity to have questions put to her. Thus, he was not given any opportunity to contest her statement. Nor can it be said that the trial court undertook a careful examination of the statement taken from M.V. since this statement was not read before the trial court with or without the applicant being present. The only evidence concerning M.V.'s testimony about the event in question was a written transcript of her statement before the investigating judge. However, as stated above, this transcript is not an authentic version of her testimony in her own words, but a version worded by the investigating judge in language which could not possibly reflect M.V.'s manner of expressing herself, and therefore could not have provided a complete and truthful picture to the trial judge or the appellate court judges who later examined the case.

31. Finally, the Court notes that the domestic courts, and in particular the Virovitica County Court acting in its appellate capacity, disregarded the applicant's contention that he had not been given an opportunity to question M.V. The Court appreciates that organising criminal proceedings in such a way as to protect the interests of very young witnesses, in particular in trial proceedings involving sexual offences, is a relevant consideration to be taken into account for the purposes of Article 6. However, the absence of any explanation by the domestic courts in response to the applicant's argument that he had not been given any opportunity to question M.V. about her statement concerning the critical event cannot but be regarded as a denial of the applicant's defence rights.

32. In these circumstances, the Court finds that the applicant cannot be regarded as having had a proper and adequate opportunity to challenge the witness statement which was of decisive importance for his conviction and, consequently, he did not have a fair trial (see P.S. v. Germany, no. 33900/96, §§ 29-31, 20 December 2001).

33. There has accordingly been a violation of Article 6 § 1 taken together with Article 6 § 3 (d) of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. 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

35. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

36. The Government deemed the amount requested excessive, unfounded and unsubstantiated and claimed that there was no causal link between the violation complained of and the amount claimed.

37. The Court cannot speculate about the outcome of the trial had it been in conformity with Article 6 and therefore, an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of that Article. The Court accepts that the lack of such guarantees has caused the applicant, who was sentenced to unconditional imprisonment, non-pecuniary damage which cannot be made good by the mere finding of a violation (see Kuopila v. Finland, no. 27752/95, § 42, 27 April 2000 and M.S. v. Finland, no. 46601/99, § 41, 22 March 2005) nor by the possibility open to the applicant under national law to seek a fresh trial (under Article 430 of the Croatian Code of Criminal Procedure). The Court, making its assessment on an equitable basis, awards the applicant EUR 1,000 in respect of non-pecuniary damage plus any tax that may be chargeable on this amount.

B. Costs and expenses

38. The applicant also claimed 8,660 euros for costs and expenses incurred before the Court and before the Constitutional Court.

39. The Government left it to the Court to assess the necessity of the costs incurred.

40. Under the Court's case-law, an applicant is entitled to reimbursement of his 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 it reasonable to award the applicant the sum of EUR 4,000 under all heads.

C. Default interest

41. 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

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 taken together with Article 6 § 3(d) of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts which are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

(ii) EUR 4,000 (four thousand euros) in respect of costs and expenses;

(iii) any tax that may be chargeable 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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 12 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenChristos Rozakis
RegistrarPresident

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