FIRST SECTION
CASE OF INTERSALONIKA A.E.G.A.Z. v. GREECE
(Application no. 29980/08)
JUDGMENT
STRASBOURG
10 May 2011
This judgment is final but it may be subject to editorial revision.
In the case of Intersalonika A.E.G.A.Z. v. Greece,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Peer Lorenzen, President,
Khanlar Hajiyev,
Julia Laffranque, judges,
and André Wampach, Deputy 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. 29980/08) 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 private insurance company based in Thessaloniki, Intersalonika A.E.G.A.Z. (“the applicant”), on 30 May 2008.
2. The applicant company was represented by Mr D. Kyriakopoulos, a lawyer practising in Thessaloniki. The Greek Government (“the Government”) were represented by their Agent’s delegate, Mrs G. Papadaki, Advisor at the State Legal Council.
3. On 17 November 2009 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol 14, the application was assigned to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
A. Background to the case
4. The applicant, Intersalonika A.E.G.A.Z., is a private insurance company based in Thessaloniki.
5. On 26 November 1998 the Ministry of Development decided that the applicant company should compulsorily become a member of the Association of Greek Insurance Companies (“ the Association”) according to provision 4 of Law no. 489/1976 and that it owed to this Association contributions amounting to GRD 19,000,000 (i.e. 55,759.35 euros). On 12 May 1999 the Association applied to the Ministry of Development asking for the revocation of the license of the applicant company after its refusal to pay the relevant contributions to the Association but no reply was received.
B. First set of proceedings
6. On 16 December 1998 the applicant company lodged a recourse against the Ministry of Development and the Association before the Supreme Administrative Court asking for the annulment of the Ministry’s decision dated 26 November 1998. By decision no. 627/2006, the case was remitted before the plenary of the Supreme Administrative Court. By judgment dated 8 January 2008, the court rejected the applicant’s recourse (judgment no. 51/2008). This judgment became final on 6 February 2008.
C. Second set of proceedings
7. On 29 October 1999 the Association lodged a recourse against the Ministry of Development and the applicant company before the Supreme Administrative Court. It asked for the annulment of the implicit refusal of the authorities to revoke the license of the applicant company that had failed to pay the relevant contributions to the Association. By decision no. 628/2006, the case was remitted before the plenary of the Supreme Administrative Court. By judgment dated 8 January 2008, the court rejected the Association’s recourse (judgment no. 52/2008). This judgment became final on 6 February 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
8. The applicant company 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...”
9. The Government contested that argument.
10. The period to be taken into consideration with respect to the first set of proceedings commenced on 16 December 1998 when the applicant company lodged a recourse against the Ministry of Development and the Association before the Supreme Administrative Court asking for the annulment of the Ministry’s decision dated 26 November 1998 and ended on 6 February 2008, when judgment no. 51/2008 became final. It thus lasted approximately nine years and two months for one level of jurisdiction.
11. As regards the second set of proceedings, the period to be taken into consideration commenced on 29 October 1999 when the Association lodged a recourse against the Ministry of Development and the applicant company before the Supreme Administrative Court asking for the annulment of the implicit refusal of the authorities to revoke the license of the applicant company. These proceedings ended on 6 February 2008, when judgment no. 52/2008 became final. It thus lasted approximately eight years and three months for one level of jurisdiction.
A. Admissibility
12. 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
13. 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).
14. 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).
15. 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 two sets of 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
16. The applicant company 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. It 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.”
17. The Government contested that argument.
18. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
19. 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 the objections and arguments put forward by the Government have been rejected in earlier cases (see Konti-Arvaniti c. Grèce, 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.
20. 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 applicant company could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. 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
22. The applicant company claimed 500,000 euros (EUR) for the non-pecuniary damage it allegedly suffered due to its loss of credibility and goodwill.
23. The Government contested these claims and submitted that, in any event, the finding of a violation would constitute sufficient just satisfaction.
24. The Court considers that the applicant company must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards to the applicant company EUR 22,000 under that head, plus any tax that may be chargeable on this amount.
B. Costs and expenses
25. The applicant company claimed EUR 14,725.82 for costs and expenses incurred before the domestic courts and EUR 10,000 for the costs and expenses incurred before the Court. In the present case, the applicant company produced an invoice for EUR 14,725.82 regarding the costs incurred before the domestic courts. However it did not produce any evidence for costs and expenses incurred before the Court.
26. The Government contested these claims. They observed that the costs incurred before the domestic courts were not causally linked with the protracted length of the proceedings and that this claim should be dismissed. With regard to the amount of costs and expenses allegedly incurred before the Court, the Government submitted that the applicant’s allegation was not supported by any proof. In the event, however, the Court considered it appropriate to award the applicant a sum under this head, the amount of 500 EUR would be reasonable.
27. 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).
28. Regarding the costs incurred before the domestic courts, the Court has already ruled that the length of a procedure could result in increased costs for the applicant before the domestic courts and should therefore be taken into account (see Capuano v. Italy, 25 June 1987, § 37, Series A no. 119). The Court notes, however, that the costs claimed in this case were not caused by the length of proceedings but are costs normally incurred in the context of the proceedings. Thus, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
29. In respect of the costs incurred before the Court, it is noted that the applicant’s claims were not supported by any documents on the basis of which the Court could assess precisely the cost and expenses actually incurred.
30. 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
31. 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 applicant company, within three months, EUR 22,000 (twenty-two 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;
5. Dismisses the remainder of the applicant’s 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 WampachPeer Lorenzen Deputy Registrar President
Full & Egal Universal Law Academy