CASE OF NAKA v. GREECE

FIRST SECTION

CASE OF NAKA v. GREECE

(Application no. 5134/09)

JUDGMENT

STRASBOURG 

7 June 2011

This judgment is final but it may be subject to editorial revision.

In the case of Naka 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 17 May 2011,

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

PROCEDURE

1. The case originated in an application (no. 5134/09) 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 a Greek national, Ms Paraskevi Naka (“the applicant”), on 30 December 2008.

2. The applicant was represented by Mr L. Panousis, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr S. Spyropoulos, Assessor at the State Legal Council, and Mr C. Poulakos, Adviser at the State Legal Council.

3. On 19 March 2010 the President of the First Section decided to communicate the complaint concerning the length of the proceedings 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 applicant was born in 1938 and lives in Athens.

5. She is employed as a cleaning lady at the General Hospital of Athens “Laiko”.

6. On 17 June 1996 she lodged a civil action with the Athens First Instance Civil Court asking for a sum of 29,151,114 drachmas (GRD) (i.e. 85,739 euros) in respect of unpaid salaries.

7. On 2 October 1997 her action was accepted. This decision was certified (θεώρηση) on 8 July 1998 (judgment no. 2927/1997).

8. On 29 March 1999 the hospital lodged an appeal.

 9. On 21 September 1999 the Athens Civil Court of Appeal accepted the appeal and rejected the applicant’s action as unfounded (judgment no. 7938/1999).

10. On 31 October 2000 the applicant lodged an appeal on points of law with the Court of Cassation.

11. On 4 December 2001 the Court of Cassation accepted the appeal and remitted the case to a different division of the Court of Appeal (judgment no. 1684/2001).

12. On 20 December 2001 the applicant filed an application before the Court of Appeal asking for a hearing date to be set. The hearing was held on 5 March 2002.

13. By judgment dated 28 November 2002 the Court of Appeal quashed judgment no. 2927/1997 of the Athens First Instance Civil Court and partially allowed the applicant’s appeal (judgment no. 9275/2002).

14. On 13 July 2004 the applicant lodged an appeal on points of law.

15. On 24 June 2008 the Court of Cassation partially accepted the appeal and remitted the case to a different division of the Court of Appeal (judgment no. 1394/2008). This judgment was finalised on 5 November 2008. It does not transpire from the case file that these proceedings have been concluded.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS

16. The applicant complained that the length of the proceedings, from the lodging of her action with the Athens First Instance Civil Court until the finalisation of judgment no. 1394/2008 of the Court of Cassation, 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...”

17. The Government contested that argument.

18. The period to be taken into consideration, according to the applicants’ complaint, began on 17 June 1996 when the applicant lodged an action with the Athens First Instance Civil Court and, according to the case file, ended on 5 November 2008, when judgment no. 1394/2008 of the Court of Cassation was finalised. The proceedings thus lasted more than twelve years and four months, for three levels of jurisdiction.

A. Admissibility

19. 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

20. 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).

21. 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).

22. Having examined all the material submitted to it, the Court considers that there were repeated procedural delays over the entire course of the proceedings. The Court notes that more than three years of the total length of the proceedings before the national courts are attributable to the parties. In particular, the Court observes delays regarding the lodging of an appeal against judgment no. 2927/1997 with the Court of Appeal and appeals on points of law with the Court of Cassation challenging judgment nos. 7938/1999 and 9275/2002 of the Court of Appeal respectively. However, the Court does not find that the parties’ conduct alone contributed to the prolonged length of the proceedings. On the contrary, the Court is of the opinion that that the overall length of the proceedings, which was approximately twelve years and four months, remains excessive. In particular, it is noted that the duration of the proceedings when the case was pending the second time before the Court of Cassation - which lasted more than four years - was at least in part attributable to the national courts. Their handling of the case did not facilitate its timely completion. In the Court’s opinion, the length of the proceedings can only be explained by the failure of the domestic courts to deal with the case diligently (see Gümüÿten v. Turkey, no. 47116/99, §§ 24-26, 30 November 2004).

23. Thus, in the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Court considers that 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

24. Firstly, the applicant had complained under Articles 6 and 13 of the Convention about the fairness of the proceedings. In particular, she argued that the Greek courts had committed errors of fact and law to the defendant’s advantage. In this regard, she also complained of a violation of her right to peaceful enjoyment of her possessions under Article 1 of Protocol No. 1 as she had not been awarded the full amount of compensation she had been entitled to.

25. The Court recalls that, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts. In particular, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many others, García Ruiz v. Spain [GC], no. 30544/96, § 28‑29, ECHR 1999‑I).

26. In this case, the complaints raised by the applicant regarding unfairness of the proceedings are of a fourth instance nature. In particular, throughout the proceedings, the applicant was fully able to state her case. Further, the judgments of the domestic courts were sufficiently reasoned and there is nothing in the case-file to indicate that the taking and the assessment of the evidence was arbitrary or the proceedings were otherwise unfair to raise an issue under Article 6. Thus, in view of the above, no reason arises under Article 13.

27. It follows that these complaints must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

28. Moreover, as far as the applicant’s complaint under Article 1 of Protocol No. 1 is concerned, the Court observes that, as it transpires from the case file, the case regarding this matter, namely the amount of compensation the applicant is entitled to, is still pending before the Court of Appeal.

29. Therefore, in view of the above, this complaint is premature and should be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

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 applicant claimed 71,769.19 euros (EUR) in respect of pecuniary damage she had allegedly suffered as a result of not receiving the full amount of compensation that she had been entitled to. She also claimed EUR 40,000 for non-pecuniary damage.

32. The Government contested the applicant’s claim for pecuniary damage. As regards her claim for non-pecuniary damage, they considered the amount claimed exorbitant and submitteds that a finding of a violation would constitute sufficient just satisfaction.

33. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amounts.

B. Costs and expenses

34. The applicant also claimed EUR 6,975 for costs and expenses incurred before the Court. She did not produce any documents in support of her claim.

 35. The Government contested the applicant’s claim and submitted that it was unsubstantiated.

36. According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).

37. In the present case the Court notes that the applicant has not submitted any invoice or bill of costs on the basis of which the Court can assess precisely the cost and expenses actually incurred.

38. Regard being had to the above-mentioned criteria, the Court considers it reasonable to reject the applicant’s claim under this head.

C. Default interest

39. 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 complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 6,000 (six thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 7 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              André WampachAnatoly Kovler
Deputy RegistrarPresident

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