FIRST SECTION
CASE OF MASTORAKIS v. GREECE
(Application no. 61153/09)
JUDGMENT
STRASBOURG
10 May 2011
This judgment is final but it may be subject to editorial revision.
In the case of Mastorakis v. Greece,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Anatoly Kovler, President,
George Nicolaou,
Mirjana Lazarova Trajkovska, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 12 April 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 61153/09) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Greek nationals, Mr Georgios Mastorakis, Mr Emmanouil Mastorakis and Mr Nektarios Mastorakis (“the applicants”), on 4 November 2009.
2. The applicants were represented by Mr V. Chirdaris, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Ms K. Paraskevopoulou and Mr M. Apessos, Senior Advisers at the State Legal Council, and Ms Z. Chatzipavlou, Legal Assistant at the State Legal Council.
3. On 5 May 2010 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicants were born in 1934, 1968 and 1966 respectively and live at the same address in Athens. The first applicant is the father of the other two.
5. On 26 February 1998 the applicants lodged an action for damages with Lasithi (Crete) First Instance Civil Court against K.K., a contractor to whom they had entrusted the construction of a building on a plot of land the first applicant owned. On 5 March 1999 K.K. filed a counter-action (ανταγωγή). The hearing, which was originally set for 4 November 1998, was adjourned to 21 April 1999 at the request of the defendant.
6. On 28 March 2000 and 29 June 2001, by two interim decisions, the court ordered preparatory inquiries (decision nos. 62/2000 and 280/2001 respectively). On 28 January 2002, the applicants asked for a new hearing date, which was set for 20 March 2002.
7. On 15 September 2002 the action and counter-action were granted in part (judgment no. 267/2002).
8. On 11 and 14 February 2003 respectively, both K.K. and the applicants lodged appeals against the aforementioned decision. The hearing was set for 16 September 2003.
9. On 20 April 2004 the Crete Court of Appeal quashed the first instance decision and partially allowed the appeal (judgment no. 179/2004).
10. On 11 June 2004 K.K. lodged an appeal on points of law.
11. On 1st March 2006 the Court of Cassation partially quashed the appellate decision and remitted the case to a different division of the Court of Appeal (judgment no. 383/2006). On 5 May 2006, the applicants asked for a new hearing date. The hearing was fixed for 27 February 2007.
12. On 21 January 2008, by an interim decision, the appellate court ordered preparatory inquiries (judgment no. 29/2008).
13. On 4 March 2008 the applicants asked for a new hearing date. The hearing, originally set for 21 October 2008, took place on 20 October 2009.
14. On 5 February 2010 the Crete Court of Appeal ordered new preparatory inquiries (judgment no. 32/2010).
15. On 18 February 2010 K.K. asked for a new hearing date.
16. On 21 September 2010 a hearing took place before the Crete Court of Appeal and the decision was reserved.
17. On 7 February 2011 the appellate court quashed judgment no. 267/2002 of the Lasithi (Crete) First Instance Civil Court and partially allowed the appeal (judgment no. 58/2011). The applicant was served with the judgment on 2 March 2011. This became final on 3 April 2011.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
18. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
19. The Government contested that argument.
20. The period to be taken into consideration began on 26 February 1998, when the applicants lodged an action with the Lasithi First Instance Civil Court and ended on 7 February 2011, when judgment no. 58/2011 of the Crete Court of Appeal was published. It thus lasted approximately thirteen years for three levels of jurisdiction.
A. Admissibility
21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
22. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
23. 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).
24. 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. 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
25. The applicants further complained of the fact that in Greece there was no court to which application could be made to complain of the excessive length of proceedings. They relied on Article 13 of the Convention which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
26. The Government contested that argument.
27. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
28. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that objections and arguments put forward by the Government have been presented and rejected in earlier cases (see Konti-Arvaniti v. Greece, no. 53401/99, §§ 29-30, 10 April 2003 and Tsoukalas v. Greece, no. 12286/08, §§ 37-43, 22 July 2010) and sees no reason to reach a different conclusion in the present case.
29. Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicants could have obtained a ruling upholding their right to have their case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
30. 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
31. The applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage.
32. The Government considered the amount claimed exorbitant and submitteds that the finding of a violation would constitute sufficient just satisfaction. They submitted, however, that if the Court considered that an award should be made to the applicants, the sum of an amount of EUR 6,000 to each applicant would be adequate and reasonable.
33. The Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the applicants jointly the amount of EUR 14,000 for non-pecuniary damage, plus any tax that may be chargeable on this amount.
B. Costs and expenses
34. The applicants also claimed EUR 615 each for the costs and expenses incurred before the Court. They produced three separate bills of costs for that amount in support of their claim.
35. The Government contested the applicants’ claim and submitted that the amount claimed was not reasonable. In the event, however, the Court considered it appropriate to award the applicants a sum under this head, the sum of EUR 1,000 for the applicants jointly would be adequate.
36. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI).
37. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicants the full amount claimed under this head, namely EUR 615 each, plus any tax that may be chargeable to the applicants.
C. Default interest
38. 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 of the Convention;
3. Holds that there has been a violation of Article 13 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, the following amounts:
(i) EUR 14,000 (fourteen thousand euros) jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 615 (six hundred and fifteen euros), to each applicant plus any tax that may be chargeable, 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;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 10 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André WampachAnatoly Kovler
Deputy RegistrarPresident
Full & Egal Universal Law Academy