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FOURTH
SECTION
CASE OF ZARB v. MALTA
(Application
no. 16631/04)
JUDGMENT
STRASBOURG
4 July
2006
FINAL
04/10/2006
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 Zarb v. Malta,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early , Section Registrar,
Having
deliberated in private on 13 June 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16631/04) against the Republic
of Malta lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Maltese national, Mr Nazzareno Zarb (“the
applicant”), on 5 April 2004.
- The
applicant was represented by Mr C. Soler and by Mr C. Cardona,
lawyers practising in Birkirkara (Malta). The Maltese Government
(“the Government”) were represented by their Agent, Mr S.
Camilleri, Attorney General.
- On
27 September 2005 the
Court (Fourth Section) declared the application partly inadmissible
and decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and is currently detained at Corradino
prison (Malta).
A. The criminal proceedings against the applicant
- On
5 April 1991 the applicant, accused together with other persons of
various counts of aggravated theft (including theft in various
factories and car theft), was arraigned before the Court of
Magistrates sitting as a Court of Criminal Inquiry.
- The
prosecution concluded the case on the merits on 12 October 1993. It
produced further evidence on charges of recidivism on 14 January
1994.
- The
legal qualification of the charges was presented on 14 April 1994, on
which date the Court of Magistrates started to hear the evidence for
the defence.
- In
a judgment of 15 February 1995, the Court of Magistrates acquitted
the applicant of two of the charges, namely receiving stolen goods
and theft of a car. It found the applicant guilty of the remaining
six charges of theft and sentenced him to four years’
imprisonment.
- The
applicant appealed against his conviction and sentence. Four of his
co-accused appealed, challenging exclusively the reasonableness of
their sentence.
- The
defendants introduced a number of requests for release on bail, for
the examination of new witnesses and for leave to present further
submissions. This led to the adjournment of the case on several
occasions, in particular on 29 February 1996 and on 13 March 1997,
dates scheduled for the delivery of the judgment. The examination of
the case was suspended from 14 January until 8 October 1999
because the presiding judge was ill.
- The
delivery of the judgment was scheduled first for 9 January, then for
30 October 2001; however, the proceedings were adjourned as some of
the accused wished to present further submissions and because the
presiding judge had been assigned to a foreign tribunal. By an order
of 3 October 2002 the Court of Criminal Appeal adjourned
the proceedings sine die awaiting the outcome of the
constitutional claim which the applicant had introduced in the
meantime (see infra, under B. “The applicant’s
constitutional claim”).
- The
proceedings were resumed after the determination of the applicant’s
constitutional claim, and on 15 January 2004 the Court of Appeal gave
its final judgment. It reaffirmed that its role was not to interfere
with the first court’s appreciation of the evidence, as long as
it was satisfied that the conclusions reached by the Court of
Magistrates were lawful and reasonable. In the light of the material
before it and having regard to the fact that the applicant had
admitted his guilt, the Court of Criminal Appeal confirmed the
first-instance judgment.
B. The applicant’s constitutional claim
1. Before the Civil Court
- In
the meantime, on 5 April 2002 the applicant had filed a
constitutional claim with the Civil Court (First Hall). Invoking
Article 6 of the Convention and Article 39 of the Constitution
of Malta, he complained about the length of the criminal proceedings
and alleged that his trial had not been fair.
- In
a judgment of 15 May 2003, the Civil Court dismissed the applicant’s
claim.
- The
Civil Court observed that no delay could be imputed to the
prosecution or to the trial court. The case was a rather complex one,
as it involved many counts and a number of accused persons. Moreover,
the Court of Magistrates had to hear several witnesses and to obtain
many documents. Notwithstanding this, most of the requests for bail
were decided on 17 April 1991, which was only twelve days after the
date of the arraignment. Some of the accused failed to appear at
several hearings, thus obliging the trial court to adjourn the
proceedings. There were also difficulties in controlling the various
accused, as their behaviour during the hearings had obstructed the
normal course of justice. As some of them did not respect the bail
conditions, the police had to take action for the revocation of bail
and the Court of Magistrates had to decide on this issue. Some
witnesses were untraceable and others, albeit properly summoned, did
not attend the sittings. There had been no excessive delay in the
inquiries and it had to be taken into account that it was necessary
to exhibit the record of the inquiry for every single charge. The
prosecution had concluded the case within a reasonable time and the
proceedings before the Court of Magistrates were conducted without
any unnecessary delay.
- As
to the proceedings before the Court of Criminal Appeal, they were
prolonged because of the great number of claims presented by the
defence and the need to obtain several reports from prison officials
and/or psychiatric experts on the behaviour of the defendants, with a
view to considering the progress they had made while in prison. Apart
from the period between 14 January and 8 October 1999, the case was
never left dormant.
- Therefore,
notwithstanding the fact that the case had been pending for about
eleven years, there had been no substantial delay. It was true that
most of the delay had been caused by the requests of other accused
and not of the applicant himself. However, the Court of Criminal
Appeal considered that, the crimes being connected, it would not have
been consonant with the proper administration of justice to separate
the defendants’ respective situations.
2. Before the Constitutional Court
- On
27 May 2003 the applicant appealed against the Civil Court’s
judgment to the Constitutional Court.
- In
a judgment of 31 October 2003, the latter quashed the impugned
judgment in so far as it concerned the applicant’s complaint
relating to the length of the criminal proceedings and declared that
there had been a breach of the “reasonable time”
principle. It also ordered the Attorney General to pay the applicant
100 Maltese liras (Lm – approximately 240 Euros) as just
satisfaction. It held that each party had to bear its own costs. The
Constitutional Court confirmed the Civil Court’s judgment for
the remainder.
- The
Constitutional Court considered that there had been some delay at the
appeal stage. The case was not particularly complex as the appeals
concerned almost exclusively the measure of the penalty.
Notwithstanding this, the case remained undecided for almost six
years and six months and in November 2001 it was eventually referred
to a new presiding magistrate. Even if it was true that the
defendants presented a number of claims which had the effect of
slowing down the proceedings, the Court of Criminal Appeal had the
duty to ensure that the duration of the trial was not excessive. As
most of these claims had been introduced by the other defendants, and
not by the applicant himself, there had been a violation of the
“reasonable time” principle in respect of the latter.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant’s complaint relates to the length of the criminal
proceedings brought against him. He invoked Article 6 § 1
of the Convention which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by a ... tribunal...”
A. Admissibility
1. The Government’s objection concerning the lack
of “victim status”
- The
Government argued that the applicant could not claim to be a
“victim”, within the meaning of Article 34 of the
Convention, of the facts complained of. They observed that the
Constitutional Court had indeed acknowledged a violation of the
“reasonable time” principle and granted the applicant Lm
100 in compensation for moral damage, thus providing adequate redress
for the breach of the Convention.
- The
applicant submitted that he had undeniably suffered a violation of
Article 6 of the Convention and that the award of Lm100 for a human
rights violation causing a considerable amount of hardship was far
from adequate.
- The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see, for example, Eckle
v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§
69 et seq.; Amuur v. France, judgment of 25 June 1996, Reports
of Judgments and Decisions 1996 III, p. 846, § 36;
Dalban v. Romania [GC], no. 28114/95, § 44, ECHR
1999 VI; and Jensen v. Denmark (dec.), no. 48470/99,
20 September 2001, ECHR 2001 X).
- The
issue as to whether a person may still claim to be the victim of an
alleged violation of the Convention essentially entails on the part
of the Court an ex post facto examination of his or her
situation. As it has already held in other length-of-proceedings
cases, the question whether he or she has received reparation for the
damage caused – comparable to just satisfaction as provided for
under Article 41 of the Convention – is an important issue.
Regarding violations of the reasonable-time requirement, one of the
characteristics of sufficient redress which may remove a litigant’s
victim status relates to the amount awarded as a result of using the
domestic remedy. The Court has already had occasion to indicate that
an applicant’s victim status may depend on the level of
compensation awarded at domestic level on the basis of the facts
about which he or she complains before the Court (Scordino v.
Italy (No. 1), no. 36813/97, §§ 181 and 202, 29 March
2006).
- In
the case of Scordino v. Italy (No. 1), the Grand Chamber held
that when, in order to prevent or to put right violations of the
“reasonable time” principle, Contracting States choose to
introduce remedies of a compensatory nature, it might be easier for
the domestic courts to refer to the amounts awarded at domestic level
for other types of damage – personal injury, damage relating to
a relative’s death or damage in defamation cases for example –
and rely on their innermost conviction, even if that results in
awards of amounts that are lower than those fixed by the Court in
similar cases. However, the Court is required to verify whether the
way in which the domestic law is interpreted and applied has produced
consequences that are consistent with the principles of the
Convention, as interpreted in the light of the Court’s
case-law. It recalls that, especially for States that have
effectively incorporated the Convention into their legal systems, a
clear error in assessment on the part of the domestic courts may also
arise as a result of a misapplication or misinterpretation of the
Court’s case-law (Scordino, cited above, §§
182-192).
- In
the present case, it is not disputed that the Constitutional Court
has found a violation of Article 6 § 1 of the Convention by
reason of the excessive length of the criminal proceedings complained
of. There has therefore been acknowledgment, at the domestic level,
of the violation of the applicant’s rights. It remains to be
ascertained whether the redress granted can be considered appropriate
and sufficient.
- According
to the Court’s case-law, there is a strong but rebuttable
presumption that excessively long proceedings will occasion
non-pecuniary damage. It is acceptable, however, that, in some cases,
the length of proceedings may result in only minimal non-pecuniary
damage or no non-pecuniary damage at all. The domestic courts will
then have to justify their decision by giving sufficient reasons.
Moreover, when no remedy designed to expedite the proceedings is
provided for by the domestic legal system, which only affords the
possibility of obtaining a financial compensation, the threshold in
respect of which the amount will still allow a litigant to claim to
be a “victim” will be higher (Scordino, cited
above, §§ 204-206).
- In
the instant case, the Constitutional Court awarded the applicant Lm
100 (approximately EUR 240) for an overall length of more than twelve
years and nine months for two instances. It found that there had been
some delay at the appeal stage. Thus, the Constitutional Court
applied a rate of less than EUR 19 per annum. The Court observes that
this amount is approximately 1.7 % of what it generally awards in
similar Italian cases (see, for instance and mutatis mutandis,
Maurano v. Italy, no. 43350/98, § 32, 26 April
2001). That factor in itself leads to a result that is manifestly
unreasonable having regard to its case-law. It will revert to this
matter in the context of Article 41 (see paragraph 56-57 below).
- In
conclusion, the Court considers that the redress was insufficient. As
the second condition – appropriate and sufficient redress –
has not been fulfilled, the Court considers that the applicant can in
the instant case still claim to be “victim” of a breach
of the “reasonable-time” requirement.
- Accordingly,
the Government’s objection concerning the lack of “victim
status” should be dismissed.
2. Other grounds for declaring this complaint
inadmissible
The
Court notes that this complaint 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
applicant submitted that his case was by no means complex, as it did
not involve any complicated issue of fact or of law. He was of the
opinion that the overall length of the trial could have been reduced
by separating the proceedings against him from those of his
co-accused. This should have been done particularly when it became
evident that the applicant was being prejudiced by the irregular
behaviour, requests and applications of the other co-accused. He
emphasised that he had filed the least number of requests throughout
the entire proceedings.
- The
Government acknowledged that the findings of the Constitutional Court
of Malta were correct and that there had been a breach of Article 6 §
1 of the Convention.
- 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
the present case, the period to be taken into consideration began on
5 April 1991, when the applicant was arraigned before the Court of
Magistrates, and ended on 15 January 2004, the date of the Court of
Appeal’s judgment. The proceedings at issue thus lasted twelve
years, nine months and ten days for two levels of jurisdiction.
- 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).
- The
Court observes that the applicant’s case was not particularly
complex. This is even more evident with regard to the appeal
proceedings, in which, as the Constitutional Court pointed out, the
main issue was the measure of the penalty (see paragraph 20 above).
Even though the parties had not identified any particular period of
inactivity at the first-instance stage, the Court notes that the
proceedings before the Court of Magistrates lasted three years, nine
months and ten days (from 5 April 1991 until 15 February 1995 –
see paragraphs 5-8 above). As to the appeal proceedings, they lasted
more than eight years and ten months, a period which is excessive.
Moreover, the case was adjourned on several occasions: to examine the
co-accused’s requests, because the presiding judge was ill; and
because he had been assigned to a foreign tribunal. The delivery of
the judgment was also postponed on at least one occasion (see
paragraphs 10 and 11 above). As rightly acknowledged by the
Constitutional Court, these facts entailed a substantial period of
inactivity, for which no convincing explanation had been given by the
Government.
- The
Court recalls that in the present case the Constitutional Court found
that a reasonable time had been exceeded. However, the fact that the
constitutional proceedings, examined as a whole, did not cause the
applicant to lose his “victim” status constitutes an
aggravating circumstance regarding a breach of Article 6 § 1 for
exceeding a reasonable time (see, mutatis
mutandis, Scordino,
cited above, § 225). The Court will therefore revert to this
issue under Article 41.
- Having
examined all the material submitted to it, and 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 READ IN CONJUNCTION WITH
ARTICLE 6 § 1 OF THE CONVENTION
- Invoking
Article 13 of the Convention, taken in conjunction with Article 6
§ 1, the applicant alleged that the violation of the “reasonable
time” principle found in his case was not redressed in an
effective manner, as the Constitutional Court granted him only Lm 100
as just satisfaction. 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 contested that argument.
A. Admissibility
The Government’s objection of failure to exhaust domestic
remedies
- The
Government submitted that the applicant, who invoked a violation of
Article 6 § 1 before the domestic courts, had never raised an
issue under Article 13 in the context of his constitutional
complaint. In the Government’s view, this amounted to
non-exhaustion of domestic remedies.
- The
applicant alleged that all domestic remedies had been exhausted. He
observed that before the Civil Court in its constitutional
jurisdiction he had requested a declaration of a violation of the
reasonable time requirement and the grant of adequate compensation.
- The
Court does not consider it necessary to examine whether the applicant
has exhausted all available domestic remedies and consequently leaves
this matter open.
2. Other grounds for declaring this complaint
inadmissible
- The
Court notes that this complaint 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 observes firstly, that Article 13 of the Convention 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).
- The Court has
frequently held that the remedy required by Article 13 must be
“effective” in practice as well as in law (see, for
example, İlhan
v. Turkey
[GC], no. 22277/93, § 97, ECHR 2000-VII). The term “effective”
is also considered to mean that the remedy must be adequate and
accessible (see Paulino Tomás v. Portugal
(dec.), no. 58698/00, ECHR 2003-XIII). Remedies available to a
litigant at domestic level for raising a complaint about the length
of proceedings are “effective” within the meaning of
Article 13 of the Convention if they prevent the alleged violation or
its continuation, or provide adequate redress for any violation that
has already occurred (see Mifsud
v. France (dec.)
[GC], no. 57220/00, § 17, ECHR 2002-VIII, Scordino
v. Italy (no. 1),
cited above, §§ 186-188, and Surmeli
v. Germany [GC],
no. 75529/01, § 99, 8 June 2006). Lastly, the Court recalls that
the effectiveness of a remedy within the meaning of Article 13 does
not depend on the certainty of a favourable outcome for the applicant
(see Surmeli v.
Germany, cited
above, § 98) and the mere fact that an applicant’s claim
fails is not in itself sufficient to render the remedy ineffective
(Amann v.
Switzerland, [GC],
no. 27798/95, §§ 88-89, ECHR 2002-II).
- The
Court must determine whether the means available to the applicant in
Maltese law for raising a complaint about the length of the
proceedings in his case could be considered “effective”.
- The
Court notes that a remedy was in principle provided under Maltese
law, which enabled the applicant to raise with the national courts
his complaint about the length of the proceedings in his case. He
instituted constitutional proceedings before the Civil Court (First
Hall) in its constitutional jurisdiction and, on appeal, before the
Constitutional Court. His complaint under Article 13 mainly related
to the amount of the compensation awarded by the Constitutional
Court, a question which the Court has addressed in its examination of
the Government’s objection of lack of victim status (see
paragraphs 24-31 above).
- The Court observes that there existed no limit on the
amount of compensation which could be granted to an applicant in such
proceedings. The amount awarded to the applicant was based solely on
the exercise by the domestic court judges’ of their discretion
as to what might constitute appropriate
pecuniary redress in the circumstances of the applicant’s own
case. The mere fact that the amount of compensation given was low
does not render the remedy in itself ineffective. Furthermore, no
other evidence has been provided showing that the remedy at issue
could be considered ineffective. In the light of the foregoing, the
Court considers that the above mentioned situation cannot be regarded
as a breach of the applicant’s right to an effective remedy.
- Accordingly, there has been no violation of Article 13
of the Convention in the present case.
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 alleged that due to the delay in the proceedings, he was
unable to run his business and to obtain the related profits. He
claimed Lm 35,000 (approximately EUR 84,000) for pecuniary damage.
-
The applicant further claimed Lm 5,000 (EUR 12,000) for moral damage.
- The
Government submitted that there was no causal link between the
violation found and the amount claimed for pecuniary damage. They
observed that there was no evidence that the applicant was in any
lawful employment immediately before the commencement of the
proceedings at issue. Moreover, it was unlikely that, as alleged by
the applicant, his business had increased while he was in prison
serving another sentence unconnected with the proceedings complained
of.
- As
to non-pecuniary damage, the Government pointed out that the period
spent by the applicant in detention on remand had been deducted from
his final sentence. Furthermore, for most of the period in question
the applicant was in detention under preventive arrest or serving
sentences in connection with other proceedings.
- The
Court observes that there is no causal link between the pecuniary
damage claimed by the applicant and the violation found in the
present case. Therefore it makes no award under this head.
- On
the other hand the Court considers that the applicant suffered moral
damage. However, at the domestic level the applicant had already
obtained Lm 100 in this respect. In the case of Scordino v. Italy
(No. 1) (see judgment quoted above, §§ 268-269) the
Grand Chamber has stressed that the amount to be awarded for
non-pecuniary damage under Article 41 may be less than that indicated
in its case-law where the applicant has already obtained a finding of
a violation at domestic level and compensation by using a domestic
remedy. However, where an applicant can still claim to be a “victim”
after exhausting that domestic remedy he or she must be awarded the
difference between the amount obtained from the national
jurisdictions and an amount that would not have been regarded as
manifestly unreasonable compared with the amount awarded by the Court
if it had been awarded at the domestic level.
- Having
regard to the circumstances of the present case (see paragraph 37
above), the Court considers that, in the absence of domestic
remedies, it would have awarded the sum of EUR 10,300. It notes that
the applicant was awarded EUR 240 by the Constitutional Court,
which is approximately 2.3 % of what the Court would have awarded. In
the Court’s view, this factor in itself leads to a result which
is manifestly unreasonable having regard to the criteria established
in its case-law.
- Having regard to the characteristics of the domestic
remedy chosen by Malta and the fact that, notwithstanding this
national remedy, the Court has found a violation, it considers,
ruling on an equitable basis, that the applicant should be awarded
EUR 4,500, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed a total sum of Lm 2,000 (approximately EUR 4,800)
for the costs incurred before the domestic jurisdictions. He also
sought Lm 500 (approximately EUR 1,200) for the costs incurred
before the Court.
- The
Government submitted that the amount claimed for the domestic
proceedings was manifestly excessive. They recalled that the
Constitutional Court had decided that each party should bear its own
costs. The applicant’s claim was unclear and the applicant had
failed to produce receipts or invoices in this respect.
- As
to the costs before the Court, the Government accepted that the
amount claimed was reasonable.
- According
to 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. It is true that the applicant failed to
produce receipts or other documents showing the exact amount incurred
before the domestic jurisdictions. It is nevertheless to be noted
that before introducing his application in Strasbourg, the applicant
had exhausted the available national remedies, submitting a
constitutional complaint to the Civil Court and the Constitutional
Court. Even though this remedy did not pertain exclusively to the
violation of the “reasonable time” principle, the Court
accepts that the applicant had incurred expenses at the domestic
level in order to correct the breach of the Convention (see, mutatis
mutandis, Rojas Morales v. Italy, no. 39676/98, §
42, 16 November 2000). Having regard to the elements in its
possession and to its practice in this area, the Court awards, EUR
500 under this head. The Court also considers that the amount claimed
for the costs incurred before it is reasonable. It therefore awards
the applicant the sum claimed in this respect (EUR 1,200).
- It
follows that the total sum due to the applicant for costs and
expenses is EUR 1,700, plus any tax that may be chargeable on that
amount.
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
1. Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been no violation of
Article 13 of the Convention;
- 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, to be converted into Maltese Liri at the rate applicable at
the date of settlement:
(i) EUR
4,500 (four thousand five hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
1,700 (one thousand seven hundred 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 4 July 2006, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinions of Mr Bonello
is annexed to this judgment.
N.B.
T.L.E.
CONCURRING OPINION OF JUDGE G. BONELLO
- I
voted to award the applicant only EUR 4500 in respect of
non-pecuniary damages, solely in deference to the criteria recently
established by the Grand Chamber of the Court in the cases of
Scordino and Cocchiarella v. Italy (29 March 2006) in
which deliberations I did not participate and with whose conclusions
I respectfully disagree.
-
According to its long-established criteria, the Court would have
awarded the applicant EUR 10,300 had his case been decided in
Strasbourg. Instead of applying the Strasbourg scale of compensation,
the domestic courts fobbed the applicant off with EUR 240 –
which represents a beggarly 2.3% of what the Strasbourg Court would
have awarded (see § 60).
-
For having complied with the Convention’s requirement of
exhausting domestic remedies before applying to the Strasbourg Court,
the applicant now finds himself penalized by getting only about 45%
of what would have been due to him according to the Court’s
practice. The argument (used in Scordino and Cocchiarella)
that the sum obtainable in Strasbourg should anyway be curtailed
because the applicant enjoyed the convenience of a domestic remedy,
in the present case falls flat on its face. The so-called domestic
‘remedy’ worked out at only 2.3% of what he was entitled
to, and the so-called ‘convenience’ consisted in having
to undergo the burden of three sets of court proceedings instead of
one.
