EHRM, 29-03-2006, nr. 62361/00

The Court of Cassation held as follows:

The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from the Pinto Act. The mechanism set in place by the European standard did not give applicants a cause of action before the domestic courts. Accordingly, the right to ‘just satisfaction’ could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force. The fact that the deceased had, while alive, lodged an application with the Strasbourg Court was not decisive. Section 6 of the Pinto Act did not constitute, as the applicants had maintained, a procedural standard bringing about a transfer of powers from the European Court to the domestic courts.

In this case, which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of Article 6 § 1 on account of the length of the proceedings, the First Division of the Court of Cassation referred the case to the full court indicating that there was a conflict between the case-law authorities, that is, between the restrictive approach taken by the Court of Cassation in the earlier judgments regarding heirs and the Pinto Act and the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004 to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since Italy ratified the European Convention on 4 August 1955.

In the case giving rise to the order mentioned above referring the case to the full court (see preceding paragraph), the Court of Cassation, sitting as a full court, established the following principles, thus preventing any further conflicting decisions being given by the courts:

The respondent Government submitted that the applicant was no longer a ‘victim’ of a violation of Article 6 § 1 because she had obtained from the Court of Appeal a finding of a violation and a sum which should be regarded as adequate having regard to her conduct and the stakes involved in the dispute.

The Government took the opportunity to ask the Court to clarify the various aspects of the reasoning that lead to its decisions, both in respect of the parts relating to a violation and regarding just satisfaction. They submitted that the Court should follow the approach used by the domestic courts and explain in each case how many years had to be regarded as ‘natural’ for each stage of proceedings, how many might be acceptable having regard to the complexity of the case, how many delays were attributable to each party, the importance of the stakes in the proceedings, the outcome of the proceedings and how the just satisfaction to be awarded was calculated on the basis of those factors. They criticised the Chamber for failing to give a detailed examination in its judgment of 10 November 2004 of the reasoning of the domestic court. The Chamber had merely asserted that the amount awarded was insufficient without specifying the similarities or differences between the previous cases referred to by way of comparison and the proceedings in question.

In the Government's submission, the Court had to strike a fair balance between the requirement of clarity and respect for principles such as the States' margin of appreciation and the subsidiarity principle. The attempt to strike that balance had to be governed by the general rule that any factor to be taken into account which was stated loosely or vaguely in the Strasbourg case-law had to be considered with the greatest respect for the corresponding margin of appreciation to be enjoyed by each State without fear of being subsequently disavowed by the European Court owing to a different perception of a fact or its importance. The Government considered that the acknowledgement of the existence of damage and the determination of quantum were part of the assessment of evidence which fell within the jurisdiction of the domestic courts and was in theory outside the competence of the supranational court. Although the Court did admittedly have the power to review decisions submitted to it with a view to ensuring that the reasoning was neither manifestly unreasonable nor arbitrary and was consonant with logic and the lessons derived from experience actually encountered in the social context, it could not, however, impose its own criteria or substitute its own beliefs for that of the domestic courts in assessing the evidence.

The Government felt it important to explain the criteria used in Italian law and pointed out that the finding of a violation was independent of the existence of non-pecuniary damage. The Court of Cassation had asserted, though, that non-pecuniary damage was a normal consequence of a breach of the reasonable-time requirement that from then on did not have to be proved by the applicant. According to the Court of Cassation, it was up to the State to prove the contrary, that is, provide proof that in a particular case an inordinately long wait for a judgment had not occasioned the applicant any anxiety or distress but had been advantageous or that the applicant had been aware of having instituted or contested proceedings on the basis of erroneous arguments (Court of Cassation 29.3-11.5.2004 no. 8896), for example where they had been well aware from the outset that they had no chance of winning. Furthermore, under Article 41 the Court awarded just satisfaction if such was appropriate, so a finding of a violation could suffice. Accordingly, the Court should not be the only institution able to vary the amounts it awarded to the point of awarding nothing. They reiterated that, under Italian law, it was only the years beyond the reasonable time that had to be taken into account when assessing the damage.

At the hearing the Government indicated that as far as the procedural costs were concerned the applicant had obtained an order from the court for their reimbursement. With regard to the delay in paying the compensation, the Government pointed out that the present case had been communicated only in respect of the length of the civil proceedings and not regarding access to a tribunal on account of the delay in paying the amount awarded by the Court of Appeal. Lastly, referring also to the information provided at the hearing in the Scordino case (no. 36813/97) the same day, the Government explained that as the amount earmarked in the budget in respect of Pinto cases had been insufficient in 2002 and 2003 it had been increased in 2004 and 2005.

For all the foregoing reasons, the Government argued that the applicant should no longer be regarded as a ‘victim’ of a violation of Article 6 § 1 of the Convention.

The applicant, for her part, considered that she was still a ‘victim’ of the violation in that the sum that had been awarded her by the Court of Appeal was not only derisory but had been paid late. In reply to the Government's submission that the stakes involved in the dispute were modest, the applicant pointed out that the sum awarded by the Chamber was not disproportionate since it sought to compensate many years of stress. She also observed that the remedy under the Pinto Act was purely compensatory.

The applicant took this opportunity to point out the other flaws in the Pinto Act to which she had herself been exposed:

Furthermore, the Pinto Act provided for payment within the limits of available resources. The funds available (approximately 6,500,000 euros) in 2002 had been ridiculously low given the thousands of applications that had then been pending before the Court. The amounts earmarked were still inadequate today, hence the delay in making payments. Once a decision had been obtained from the Court of Appeal, the State did not spontaneously make payment but obliged the applicants to serve the decision on the authorities, wait the statutory 120 days after service and then take out a writ, and sometimes apply for a garnishee order, which was not always successful because funds might not be available. This meant that, on average, two years elapsed between the date of the decision and the date when the Italian State actually paid the sum to the applicant, which was perfectly legitimate since the Pinto Act itself provided that ‘payment shall be within the limits of available resources’, that is, the limits of the — notoriously inadequate — sums that the State decided to set aside every year.

In the applicant's submission, an analysis of the Pinto Act and the Italian courts' manner of applying it showed that the purpose of the measures taken by the State was not to eliminate the delays but to create a remedy that would be such an obstacle that it would discourage claimants from lodging an application or continuing with one. The applicant was thus not only a victim of the chronic delays in proceedings but also of the subsequent frustrations resulting from the obstacles instituted with the Pinto remedy. Furthermore, the Pinto Act had increased the workload of the courts of appeal without any provision being made for a concomitant substantial increase in the number of judges, which could only have adverse effects on the judges' work.

In reply to the criticism of the various Governments regarding the criteria articulated by the Chamber, the applicant observed that the length of the proceedings was so bound up with the Italian judicial system that the Government omitted to ask the Court what they should change in the system in order to eliminate the delays. Instead, the Government asked the Court to lay down guidelines regarding damage or authorise the courts to continue using guidelines that were totally different from those used by the Court so that they could carry on running the Italian system without introducing any changes to expedite proceedings. The applicant argued that the Government erred in its assessment of the position as it was not for the European Court of Human Rights to avoid giving judgments that conflicted with national law but, on the contrary, the national law (including the Pinto Act) that should not conflict with the Convention. In the applicant's submission, the Government could not properly argue that in some cases delays in legal proceedings gave applicants an advantage if they held out with unfounded arguments during proceedings, or if the stakes involved in the dispute were less than the just satisfaction awarded. The value of the application in question was of no relevance to the right to a hearing within a reasonable time and Article 6 did not require an applicant claiming the right to just satisfaction to have been successful. Furthermore, the Government's reasoning was one that was expressed with hindsight at the end of proceedings, and it was never possible to say beforehand what the outcome would be. If a case was lost after twenty years of proceedings the non-pecuniary damage incurred was all the greater, since if the person had known earlier that they would lose they would probably have arranged certain aspects of their life differently.

As to the adequacy of a finding of a violation, that assertion held true only for a State that committed few breaches — and these owing to exceptional circumstances — and possessed a sound judicial system. This was not the situation in Italy, which did nothing to put an end to these violations. Such conduct certainly could not be rewarded with the elimination of just satisfaction. On the contrary, in order to force the State to take measures to avoid violations the Court ought to increase the awards in its judgments against Italy until the reasons why justice was not delivered within a reasonable time were eliminated.

With regard to the comments relating to the subsidiarity principle, the applicant submitted that Article 13 could not be construed as allowing a State to adopt a domestic remedy which would determine just satisfaction for violations of fundamental rights recognised by the Court according to criteria that were completely different from those used by the Court. The Court therefore had a duty to intervene regarding domestic decisions in order to ensure full reparation of the consequences of violations of the rights and freedoms protected by the Convention. The Court's intervention was always possible where the domestic courts had made a decision impairing the effectiveness of the domestic remedy. To accept wholesale the ‘subsidiarity’ argument was tantamount to depriving the Court of its function, which was to ensure that the Contracting States applied the Convention and its Protocols.

In the Czech Government's submission, the Court should confine itself to ensuring that the consequences of the case-law policy choices made by the domestic courts were in keeping with the Convention. Its review should be more or less rigorous, depending on the margin of appreciation that the Court allowed national authorities. The Court should only ensure that, in accordance with Article 13 of the Convention, the national authorities complied with the principles established in its case-law or applied the provisions of their own domestic law in such a way that applicants enjoyed a level of protection in respect of their rights and freedoms as guaranteed by the Convention that was greater than or equivalent to that which they would enjoy if the national authorities applied the Convention's provisions directly. The Court should not go any further except in cases where the outcome of action by the national authorities appeared, on the face of it, arbitrary.

The Czech Government acknowledged that the adequacy of the amount awarded at domestic level was one of the criteria of effectiveness of an application for compensation within the meaning of Article 13. However, in view of the wide margin of appreciation that should be available to the Contracting Parties in implementing Article 13, they considered that the Court should subsequently exercise only ‘limited control’, thus restricted to satisfying itself that the national authorities had not made a ‘manifest error in assessment’ of the non-pecuniary damage caused by the excessive length of judicial proceedings.

Moreover, as the Czech Government wanted to provide their country with a compensatory remedy in addition to the existing preventive domestic remedy, they asked the Court to provide as many guidelines as possible in that connection so that they could set in place a remedy which would incontestably be effective.

In the Polish Government's submission, an assessment of the facts of the case with a view to determining whether the ‘reasonable time’ had been exceeded was part of the examination of the evidence conducted by the domestic courts. It was therefore debatable to what extent a supranational body could intervene in this process. It was, rather, commonly accepted that in most cases the facts would have been established by the domestic courts and that the Court's task would be limited to examining whether the Convention had been complied with. The Court's case-law appeared to be confined to assessing whether the domestic courts' decisions, given in accordance with domestic procedure previously approved by the Court, had properly applied the general rules to the specific case. In the absence of precise indications for assessing the facts and calculating the amount of compensation, there were no grounds on which to dispute the decisions of the domestic courts. It should be borne in mind in this regard that the domestic courts had a discretion in assessing the facts and evidence.

Furthermore, in the very particular circumstances of some cases the mere finding of a violation sufficed to meet the requirement of an effective remedy and amounted to sufficient redress for the breach. That rule had been clearly established in the Court's case-law on other Articles of the Convention. In some cases, moreover, the excessive length of the proceedings could be favourable to the parties and compensating them would therefore be extremely questionable.

In the Slovak Government's submission, the Court should adopt the same approach as in assessing the fairness of proceedings, a matter in respect of which it considered that its task was not to deal with the factual or legal mistakes allegedly made by the domestic courts unless such mistakes could have resulted in a breach of the rights and freedoms guaranteed by the Convention. Moreover, although Article 6 of the Convention guaranteed the right to a fair trial it did not lay down any rules on the admissibility of evidence or its assessment, which was therefore primarily a matter for regulation under national law by the domestic courts. Accordingly, when examining decisions of domestic courts on the amount of non-pecuniary damages awarded for delays in the proceedings, the Court should leave enough room for the courts' discretion in this respect since the domestic courts decided on delays in the proceedings on the basis of the same criteria as the Court — and were in a better position to analyse the causes and consequences and thus to determine the non-pecuniary damage on an equitable basis.

The Slovak Government pointed out that the decisions of the Slovak Constitutional Court concerning delays in proceedings were much more detailed than the Court's decisions. In their submission, the Court should examine the decisions of the domestic courts relating to the amounts awarded for non-pecuniary damage only with regard to whether these decisions were manifestly arbitrary and unfair and not whether the amounts awarded by the Court in similar circumstances were substantially higher. Moreover, the Slovak Government found it logical that the amounts awarded by the domestic courts for protractedness of proceedings were less than the amounts awarded by the Court because injured persons could obtain effective and rapid compensation in their own country without having to bring their case to the international court.

The Court will begin by responding to the observations of the different Governments regarding the lack of precision in its judgments both in respect of the reasons leading to a finding of a violation and awards in respect of non-pecuniary damage.

It feels it important to point out that the reason why it has been led to rule on so many length-of-proceedings cases is because certain Contracting Parties have for years failed to comply with the ‘reasonable-time’ requirement under Article 6 § 1 and have not provided for a domestic remedy for this type of complaint.

The situation has worsened on account of the large number of cases coming from certain countries, of which Italy is one. The Court has already had occasion to stress the serious difficulties it has had as a result of Italy's inability to resolve the situation. It has expressed itself on the subject in the following terms:

Thus the Court, like the Commission, after years of examining the reasons for the delays attributable to the parties under the Italian procedural rules, has had to resolve to standardize its judgments and decisions. This has allowed it to adopt more than 1,000 judgments against Italy since 1999 in civil length-of-proceedings cases. That approach has made it necessary to establish scales on equitable principles for awards in respect of non-pecuniary damage under Article 41, in order to arrive at equivalent results in similar cases.

All this has led the Court to award higher levels of compensation than those awarded by the Convention institutions prior to 1999 and ones which may differ from those applied in the event of a finding of other violations. This increase, far from being a punitive measure, was intended to fulfil two purposes. On the one hand it served to encourage States to find their own, universally accessible, solution to the problem and on the other hand it allowed applicants to avoid being penalised for the lack of domestic remedies.

The Court also considers it important to point out that, contrary to the Government's assertion, the Chamber has not in any way departed from its constant practice either regarding the assessment of the delays or regarding just satisfaction. Concerning the question of exceeding a reasonable time, it reiterates that regard must be had to the circumstances of the case and the criteria laid down in the Court's case-law, in particular the complexity of the case, the applicant's conduct and that of the competent authorities, and the importance of what was at stake for the applicant in the dispute (see, among many other authorities, Comingersoll, cited above, § 19). Furthermore, a closer analysis of the many judgments which post-date Bottazzi will enable the Government to see that there is a clear pattern in the amounts awarded in its judgments, since the amounts differ only in respect of the particular facts of each case.

With regard to the observations concerning the subsidiarity principle, also made by the third parties, the Court notes that under Article 34 of the Convention it ‘may receive applications from any person … claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. …’

The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see Burdov v. Russia, no. 59498/00, § 30, ECHR 2002-III).

The Court also 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, 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. It is the Court's settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Holzinger v. Austria (no. 1), no. 23459/94, § 21, ECHR 2001-I).

In so far as the parties appear to link the issue of victim status to the more general question of effectiveness of the remedy and seek guidelines on affording the most effective domestic remedies possible, the Court proposes to address the question in a wider context by giving certain indications as to the characteristics which such a domestic remedy should have, having regard to the fact that, in this type of case, the applicant's ability to claim to be a victim will depend on the redress which the domestic remedy will have given him or her.

The best solution in absolute terms is indisputably, as in many spheres, prevention. The Court recalls that it has stated on many occasions that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time (see, among many other authorities, Süßmann v. Germany, judgment of 16 September 1996, Reports 1996-IV, p. 1174, § 55, and Bottazzi, cited above, § 22). Where the judicial system is deficient in this respect, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution Such a remedy offers an undeniable advantage over a remedy affording only compensation since it also prevents a finding of successive violations in respect of the same set of proceedings and does not merely repair the breach a posteriori, as does a compensatory remedy of the type provided for under Italian law for example.

The Court has on many occasions acknowledged that this type of remedy is ‘effective’ in so far as it allows for an earlier decision by the court concerned (see, among other authorities, Bacchini v. Switzerland (dec.), no. 62915/00, 21 June 2005; Kunz v. Switzerland (dec.), no. 623/02, 21 June 2005; Fehr and Lauterburg v. Switzerland (dec.), no. 708/02 and 1095/02, 21 June 2005; Holzinger (no. 1) (cited above, § 22), Gonzalez Marin v. Spain (dec.), no. 39521/98, ECHR 1999-VII; and ToméMota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX).

It is also clear that for countries where length-of-proceedings violations already exist, a remedy designed only to expedite the proceedings — although desirable for the future — may not be adequate to redress a situation in which it is obvious that the proceedings have already been excessively long).

Different types of remedy may redress the violation appropriately. The Court has already affirmed this in respect of criminal proceedings, where it was satisfied that the length of proceedings had been taken into account when reducing the sentence in an express and measurable manner (see Beck v. Norway, no. 26390/95, § 27, 26 June 2001).

Moreover, some States, such as Austria, Croatia, Spain, Poland and the Slovak Republic, have understood the situation perfectly by choosing to combine two types of remedy, one designed to expedite the proceedings and the other to afford compensation (see, for example, Holzinger (no. 1), cited above, § 22; Slavicek v. Croatia (dec.), no. 20862/02, ECHR 2002-VII; Fernandez-Molina Gonzalez and Others v. Spain (dec.), no. 64359/01, ECHR 2002-IX; Michalak v. Poland (dec.), no. 24549/03, 1 March 2005; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX).

However, States can also choose to introduce only a compensatory remedy, as Italy has done, without that remedy being regarded as ineffective (see Mifsud, cited above).

The Court has already had occasion to reiterate in the Kudla judgment (cited above, §§154–55) that, subject to compliance with the requirements of the Convention, the Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision. It has also stressed the importance of the rules relating to the subsidiarity principle so that individuals are not systematically forced to refer to the Court in Strasbourg complaints that could otherwise, and in the Court's opinion more appropriately, have been addressed in the first place within the national legal system.

Accordingly, where the legislature or the domestic courts have agreed to play their true role by introducing a domestic remedy the Court will clearly have to draw certain conclusions from this. Where a State has made a significant move by introducing a compensatory remedy, the Court must leave a wider margin of appreciation to the State to allow it to organise the remedy in a manner consistent with its own legal system and traditions and consonant with the standard of living in the country concerned. It will, in particular, 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.

In accordance with its case-law on the interpretation and application of domestic law, while the Court's duty, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its 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.

Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Jahn and Others v. Germany[GC], nos. 46720/99, 72203/01 and 72552/01, § 86, to be published in ECHR 2005).

The Court is therefore required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention as interpreted in the light of the Court's case-law. This is especially true where, as the Italian Court of Cassation has quite rightly observed (see paragraph 24 above), the domestic law refers explicitly to the provisions of the Convention. This supervisory role should be easier in respect of States that have effectively incorporated the Convention into their legal system and consider the rules to be directly applicable since the highest courts of these States will normally assume responsibility for enforcing the principles determined by the Court.

Accordingly, 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.

The principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by Article 6 would be devoid of any substance. In that connection it should be reiterated that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective (see Prince Hans-Adam II of Liechtenstein v. Germany[GC], no. 42527/98, § 45, ECHR 2001-VIII). This is particularly true for the guarantees enshrined in Article 6, in view of the prominent place held in a democratic society by the right to a fair trial with all the guarantees under Article 6 (see, mutatis mutandis, Prince Hans-Adam II of Liechtenstein, cited above, § 45).

It follows from the foregoing principles that the Court is required to verify that there has been an acknowledgement, at least in substance, by the authorities of a violation of a right protected by the Convention and whether the redress can be considered as appropriate and sufficient (see, inter alia, Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; Jensen v. Denmark (dec.), no. 48470/99, 20 March 2003; and Nardone v. Italy, no. 34368/98, 25 November 2004).

The Government submitted that the judgment of 10 November 2004 represented a departure from the Court's settled case-law and asked it to revert to its previous practice, which conformed to Convention principles. They noted that the criteria established were imprecise, particularly regarding the possibilities of reducing the amounts initially obtained. In their submission, the amount of just satisfaction should be calculated only by reference to the delays attributable to the State.

The applicant referred to the considerable difference in standard of living between the third-party States and Italy and submitted that the level of compensation could not therefore be the same. She noted that compensation served as a coercive measure against non-complying States that were bound by their undertaking under Article 1 of the Convention to respect the fundamental rights and liberties recognised by the Convention. In her submission, a richer State could properly be ordered to pay higher amounts than those required from poorer ones in order to encourage it to remedy its judicial system, particularly where the State in question was found to have committed the same type of violations for dozens of years in respect of thousands of cases. She noted that the criteria established in the judgment in question had merely revealed the criteria that had been applied for a very long time by the Court and were perfectly compatible with the standard of living of Italian citizens. She stated that Italian lawyers, who had access to the judgments in French or English — for want of an Italian version — had already succeeded in deducing from the Court's judgments all the criteria now being disputed by the Government. She submitted further that the Court could not be expected to draw up an exhaustive list of all the possibilities of reducing or increasing awards. She argued, lastly, that it was down to the domestic courts to consult the Court's case-law in order to find the Court's response to a given situation.

As the Czech Government had decided, in addition to introducing a preventive remedy, to enact a law providing for a compensatory remedy, they felt obliged to propose a law that would be sufficiently foreseeable. They referred to difficulties in that regard, submitting that neither the Convention nor the Court's case-law provided sufficient clarification. They requested more information about the criteria used by the Court, cases that could be regarded as ‘similar’ and the threshold level of the ‘reasonable’ relation.

In the Polish Government's submission, the Court should indicate what just satisfaction consisted of. If precise indications were not given, inconsistencies were likely to arise between domestic case-law and the Court's case-law. Applicants and Governments alike would find it very difficult to establish general rules concerning just satisfaction from the Court's case-law. Accordingly, the domestic courts were not in a position to rely on the Court's case-law and make decisions compatible with it.

The Slovak Government appreciated the attempt made by the Court to specify the criteria for determining awards in respect of non-pecuniary damage. However, they added that the considerations on which the Court based its determination of non-pecuniary damage should form part of the reasons for its decision. It was only in that way that the Court's judgments would become clear instructions for the domestic courts, which determined awards in respect of non-pecuniary damage caused by delays in the proceedings. In the Slovak Government's submission, it was impossible to translate into figures all these aspects or to foresee every situation that might arise. The Court was not expected to define a precise formula by which the amount awarded for non-pecuniary damage flowing from the protractedness of proceedings could be calculated or to determine precise amounts. It was, in their view, more important that the Court gave sufficient justification in its decisions for the manner in which the criteria to which regard was had when assessing the reasonableness of the length of the proceedings were then taken into account to determine the amount awarded for non-pecuniary damage arising from the delays in the proceedings. It was clear from the foregoing that applicants should be awarded the same amount in comparable cases.

The applicant left it to the Court to assess the damage sustained both under the head of pecuniary loss and non-pecuniary loss. She asked the Court to take into consideration the fact that her courtyard had been turned into a sewer, which had made it impossible for her to sell the house and move closer to her children, had caused her tenants to leave and had left her without the means necessary to carry out the requisite work following seepage down into the cellar and foundations of the house.

The Government disputed those claims and pointed out that the appeal to the Court of Cassation had been dismissed as being out of time.

The Court fails to see a causal link between the violation found and the pecuniary damage alleged and accordingly rejects this claim.

With regard to non-pecuniary damage, however, the Court finds that on the basis of the circumstances of the present case (see paragraphs 105 and 112–13 above) it would have awarded, in the absence of domestic remedies, the sum of EUR 36,000. It notes that the applicant was awarded EUR 5,000 by the Court of Appeal, which is approximately 14 % of what the Court would have awarded. In the Court's view, this factor in itself leads to a result that is manifestly unreasonable in the light of the criteria established in its case-law.

Having regard to the characteristics of the domestic remedy chosen by Italy 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 11,200.

The Court also awards EUR 1,600 for the further frustration arising from the delay in paying the amount due from the State, which was not paid until 23 December 2003.

Accordingly, the applicant is entitled to compensation for non-pecuniary damage in the sum of EUR 12,800, plus any tax that may be chargeable on that amount.

The applicant also claimed reimbursement of part of the costs and expenses incurred in the domestic courts but did not quantify them. With regard to the ‘Pinto’ proceedings, she claimed reimbursement of the procedural costs relating to the stage before the Court of Cassation, that is, EUR 2,206.57. In respect of the written and oral proceedings before the Grand Chamber the first lawyer of the defence team claimed EUR 13,516.56 against the respondent Government. In respect of drafting memorials in reply to the observations of the third-party Governments, he claimed EUR 1,904.06 each from the third-party Governments plus 2 % CPA (contribution to the lawyers' insurance fund) and 20 % VAT (value-added tax). Referring to the judgment of Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, §§ 255–58, ECHR 2000-VIII), the lawyer also requested that the fees be paid directly to him.

The Government disputed those claims, pointing out that the appeal to the Court of Cassation had been dismissed as being out of time. They observed that the amount claimed in respect of the proceedings before the Grand Chamber was disproportionate.

Regarding the claim against the third-party Governments, the Court reiterates that the present case is directed only against Italy and that it is only in respect of that country that it has found a violation of the Convention. Accordingly, any request for an order against another country for the reimbursement of costs and expenses must be rejected.

Moreover, according to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. In the present case, having regard to the evidence before it and to the above-mentioned criteria, the Court rejects the claim for costs and expenses incurred in the domestic proceedings, which have not been proved.

Regarding the Court of Cassation proceedings, the Court recalls that they ended with a decision of inadmissibility because the appeal had been lodged out of time. In so far as the appeal was dismissed on the ground of a failure by the applicant's lawyer to comply with a formality, the Court considers that it is an error for which the Government should not bear the consequences and accordingly dismisses the claim.

Besides that, having regard to the evidence before it, the above-mentioned criteria and the length and complexity of the proceedings before the Court, it finds the amount claimed by the lawyer to be excessive in view of the work done. Furthermore, given that a legal team was formed for the various cases being examined concurrently (see paragraph 9 above), the Court considers that the case is distinguishable from the case of Scozzari (cited above) and that this claim should not be granted. It considers that the applicant should be awarded EUR 3,000 for the work done before the Grand Chamber, plus any tax that may be chargeable on that amount.

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.