EHRM, 15-02-2008, nr. 27278/03

The case originated in an application (no. 27278/03) against the Greek Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by ninety-one Greek nationals listed in the Appendix (‘the applicants’), on 4 August 2003.

The applicants were represented by Ms Z. Tsiliouka-Mousmoula and Mr I. Stamoulis, of the Athens Bar. The Greek Government (‘the Government’) were represented by their Agent's delegates, Ms G. Skiani and Mr K. Georgiadis, Advisers, State Legal Council.

The applicants complained, inter alia, under Article 6 § 1 of the Convention, about the length of proceedings before the administrative courts.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).

On 12 November 2004 the Court decided to communicate the complaint concerning the length of proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

On 18 May 2006 the Chamber constituted within the First Section to examine the case and composed of the following judges: Loukis Loucaides, Christos Rozakis, Françoise Tulkens, Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann and Sverre Erik Jebens, and Søren Nielsen, Section Registrar, declared the application partly inadmissible and concluded unanimously that there had been a violation of Article 6 § 1 on account of the excessive length of the proceedings. The Chamber also decided, by four votes to three, to award each of the applicants a sum in non-pecuniary damage, the same for all but one of the applicants.

On 27 July 2006 the Government requested, in accordance with Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. On 13 September 2006 a panel of the Grand Chamber accepted this request.

The composition of the Grand Chamber was determined according to the provisions of Articles 27 §§ 2 and 3 of the Convention and Rule 24.

The applicants and the Government each filed observations on the merits (Rule 59 § 1).

A hearing took place in public in the Human Rights Building, Strasbourg, on 7 March 2007 (Rule 59 § 3).

There appeared before the Court:

The Court heard addresses by Ms Tsiliouka-Mousmoula, Mr Stamoulis, Ms Skiani and Mr Georgiadis.

While I agree with the result reached by the majority of the Grand Chamber in this case and in the related case of Kakamoukas and Others v. Greece, I prefer to explain my reasons shortly in my own words.

The starting point for consideration of the question raised in both cases is Article 41 itself. As is clear from the terms of the Article, not only is the grant by the Court of financial or other reparation to the applicant where a violation of the Convention is found a discretionary measure, but any satisfaction awarded to the injured party must be ‘just’. In the case of damage of a non-pecuniary nature, the term connotes that any sum awarded must reflect the nature of the Convention right violated, the gravity of the violation found and its impact on the individual applicant.

Where a violation of Article 6 of the Convention has been found on the grounds of the excessive length of domestic proceedings, it has been the usual practice of the Court to award financial compensation to the successful applicant to reflect the frustration, anxiety and inconvenience caused to the applicant by the unacceptable delays in the conduct of the proceedings for which the national courts or tribunals are responsible. Where the applicant is an individual litigant or a member of a small group of litigants who are parties to the same domestic proceedings, the award of just satisfaction has not in general caused problems. The Court, acting ‘on an equitable basis’, will normally award a sum which takes account of the overall length of the proceedings, the number of levels of jurisdiction through which the proceedings have passed and the extent to which the applicant may have contributed to the overall length, as well as the awards made in comparable cases against the same or other respondent States, in order to ensure, so far as possible, consistency of approach.

However, where, as in the present case, the complaint of undue length of proceedings is made by a large number of parties to the same set of civil proceedings, a further consideration comes into play, namely the proportionality of the overall award. Although it is the Convention right of each individual which is found to have been violated, the total amount of the award under Article 41 should not be out of all proportion to the nature and seriousness of the violation found in the case, including the fact that the violation found relates to the excessive length of a single set of proceedings. The importance of upholding this principle justifies the making of a substantial reduction in the amount which would have been awarded to each applicant, had he or she been the only party, or one of a small number of parties, to the proceedings.

In my view an award such as that made by the Chamber, totalling over € 630,000 in respect of non-pecuniary damage for the excessive length of a single set of proceedings offends against this totality principle and requires to be substantially reduced.

The applicants argue that there is no justification for awarding them less than the Court would have awarded each of them had he or she been the only party to the domestic proceedings. It is further argued that to make a reduction in the award because of the number of claimants would send the wrong signal to claimants who brought joint proceedings before the domestic courts and would encourage them to lodge separate applications to the Court instead of joining their cases.

I am unable to accept either argument. As to the former, there are, as the judgment rightly points out, considerable advantages for the claimants themselves, as well as for the effective administration of justice in joining in a single set of proceedings rather than pursuing identical claims in separate proceedings. The sharing of the responsibility for the conduct of the proceedings, as well as the substantial saving of costs for the individual applicant which would normally follow from being a party to joint proceedings handled and coordinated by a single set of legal representatives, are significant benefits which must be taken into account by the Court when assessing the degree of frustration, anxiety and inconvenience caused to the individual applicants by delays in the proceedings.

I am similarly unpersuaded by the unrealistic argument that a reduction in the award which would otherwise be made would encourage applicants who are parties to the same proceedings to lodge separate applications to the Court with a consequent undesirable increase in the Court's case-load. As the practice of the Court makes clear, should such a situation arise, the separate applications would inevitably be joined by the Court in the interests of judicial economy and efficiency and would not result in the making of increased individual awards.

While views might legitimately differ as to whether the sums awarded by the Grand Chamber in the present case strike the requisite balance between compensating the individual applicants for a violation of their Convention rights and maintaining the proportionality of the overall award, I am willing to accept the sums awarded by the majority on an equitable basis.

To our regret, we were unable to concur with the majority as regards the application of Article 41 of the Convention once it had been found that there had been a violation of the right to a reasonable length of proceedings in the case in issue.

The question before the Grand Chamber was whether the fact that there were numerous applicants could be included in the criteria to be used in determining the amount of compensation to be awarded in respect of non-pecuniary damage. The majority found (in paragraph 29 of the judgment) that it could, observing that ‘a high number of participants will very probably have an impact on the amount of just satisfaction to be awarded in respect of non-pecuniary damage’, that ‘the number of individuals participating in common proceedings before the domestic courts is not neutral from the perspective of the non-pecuniary damage that may be sustained by each of them as a result of the length of those proceedings when compared with the non-pecuniary damage that would be sustained by an individual who had brought identical proceedings on an individual basis’ and that ‘membership of a group of people who have resolved to apply to a court on the same factual or legal basis means that both the advantages and disadvantages of common proceedings will be shared’.

Even though, in line with a practice which we find questionable, the judgment does not make explicit the reasoning which led to the indication of the amount to be awarded (still less does it touch on the issue of whether the level of compensation ought to be the same for each victim of the violation), the significance of the new criterion, which has resulted in a substantial reduction of the compensation in comparison to the Court's general practice, may be discerned.

In our opinion, however, there is no psychological or other reason which can justify the statement of principle adopted by the Grand Chamber. Nor can we identify in this situation any link or similarity with the area of class actions and the criteria which are used in such cases to calculate the amounts to be awarded to each of the successful parties (in respect of pecuniary damage). We consider that, whatever the number of victims, each of them must be compensated, ‘if necessary’, for the consequences which he or she must have suffered as a result of the violation in question. Just satisfaction is rightly provided for in Article 41 to compensate the victim of a violation in so far as possible. What was at stake in the domestic proceedings and its effects on the person of the applicant are, we believe, the decisive factors to be taken into consideration.

In this connection, we consider that there is no reason to take into consideration the total sum awarded to the applicants, with a view to reducing that sum in a way that affects each victim (see paragraph 32).

That being said, we would add that it is understandable that the Court was concerned by the sheer scale of the amounts in question if they were not to be reduced. In our opinion, however, this is the inevitable consequence of several questionable aspects of the Court's practice with regard to the application of Article 41 in the event of a violation of the right to a reasonable length of proceedings. These range from an almost automatic assumption that non-pecuniary damage has been sustained, without the requirement of any evidence or argument, and the use of mathematical calculation criteria which take into account the entire length of the proceedings, even the period recognised as justified, to the use in this area of scales which are unrelated to the Court's practice concerning violations which cause considerably greater suffering to the victims (Articles 2, 3, 8, 10, etc.).

In our opinion, rather than intervening after the event by introducing a new and highly questionable criterion, the Court ought to re-examine the underlying reasons for the consequences which it was seeking to avoid.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 15 February 2008.

Vincent Berger

Jurisconsult

Jean-Paul Costa

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

J.-P.C

V.B.

APPENDIX

List of applicants