EHRM, 15-10-2009, nr. 17056/06

The Chamber, which raised the matter of its own motion, noted that Mrs M., the direct victim, died while pursuing domestic remedies, implying that she intended to complain about the alleged breach before the Court. It further noted that after the direct victim's death the domestic courts did not reject the applicant's request to intervene in the constitutional proceedings and later to appeal in his capacity as brother of the plaintiff. Moreover, the Court had discretion to recognise the victim status of an applicant and to continue examining an application when it concerned a matter of general interest. The Chamber considered that the impossibility under domestic law to challenge a judge on the basis of his or her relationship with a party's advocate was a matter of sufficient general interest. Having further observed that the Government had not filed an objection in this respect, the Chamber concluded that the applicant had standing to introduce the present application.

The Government submitted that the applicant did not have victim status in so far as he was not a party to the proceedings complained of. The only direct victim was his sister, who had died during the domestic constitutional proceedings. The Government argued that it was irrelevant that the applicant was permitted to intervene in the latter proceedings in his sister's stead. According to Maltese law, this was standard practice based on the civil-law principle of succession whereby an heir succeeds to the legal personality of the deceased, irrespective of the heir's victim status for the purposes of the Convention.

Moreover, the Government contested the Chamber's interpretation regarding the Court's discretion to grant victim status on the basis of ‘sufficient general interest’. This in their view was not in conformity with Article 34 of the Convention and would verge on acceptance of an actio popularis. However, even if this were so, in the present case there was no relevant defect in the law justifying the exercise of the alleged discretion by the Chamber.

The applicant first submitted that it was an abuse of proceedings and contrary to the principle of subsidiarity for the Government to raise a novel argument before the Court at this stage of the proceedings. Since they had not contested this matter before the domestic courts or the Chamber, they should be estopped from doing so now.

In any case, the applicant submitted that the direct victim had died while pursuing domestic remedies, without which she could not apply to the Court. Indeed, after Mrs M.'s death the national courts had accepted the applicant's locus standi in constitutional proceedings in accordance with domestic law. Moreover, once the applicant became a party to the domestic proceedings he was made to bear the costs of the constitutional case instituted by his sister and had thus also suffered financial prejudice. According to the applicant, this status once acquired was irreversible.

Lastly, the applicant submitted that there was a moral dimension to the application which raised serious questions affecting the interpretation or application of the Convention and a serious issue of general importance. Thus, it could not be said that the general interest criterion referred to by the Chamber did not apply to the present case.

The Government of the Czech Republic submitted that it was acceptable for the Court to grant locus standi to the applicant's next of kin where the applicant died during the proceedings before the Court. However, if the direct victim died before lodging the application, victim status should only be recognised exceptionally. This would be so in cases where the alleged violation prevented the direct victim himself from asserting his claims (Bazorkina v. Russia, no. 69481/01, § 139, 27 July 2006) or where persons aspiring to have victim status, usually the heirs, were themselves affected by what were claimed to be the negative consequences of the alleged violation (Ressegatti v. Switzerland, no. 17671/02, § 25, 13 July 2006).

Moreover, the Court had no discretion to grant victim status on the ground that the complaint related to an issue of general interest. However, it did have discretion under Article 37 § 1 of the Convention to continue the examination of an application even in the absence of a person wishing to complete the battle embarked upon by the deceased applicant. Applying this discretion to proceedings initiated by a next of kin, who did not fulfil the exceptional criteria mentioned above, would amount to allowing the Court to choose of its own motion which applications would be examined.

In order to be able to lodge a petition in pursuance of Article 34, a person, non-governmental organisation or group of individuals must be able to claim ‘to be the victim of a violation … of the rights set forth in the Convention …’. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, 29 April 2008).

This criterion is not to be applied in a rigid, mechanical and inflexible way (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX). The Court has acknowledged that human rights cases before it generally also have a moral dimension and persons near to an applicant may thus have a legitimate interest in seeing to it that justice is done even after the applicant's death. This holds true all the more if the leading issue raised by the case transcends the person and the interests of the applicant and his heirs in that it may affect other persons (see Malhous v. the Czech Republic [GC] (dec.), no. 33071/96, ECHR 2000-XII).

The Court has discretion, in particular circumstances, to find that respect for human rights as defined in the Convention and the Protocols thereto requires a continuation of the examination of the case ( Article 37 § 1in fine of the Convention). This discretion is dependent on the existence of an issue of general interest (see Karner, cited above, § 27, and Marie-Louise Loyen and Bruneel v. France, no. 55929/00, § 29, 5 July 2005). The latter may arise in particular where an application concerns the legislation or a legal system or practice of the defendant State (see Altun v. Germany, Decisions and Reports no. 36, § 32, and, mutatis mutandis, Karner, cited above, §§ 26, 28).

The Court normally permits the next of kin to pursue an application provided he or she has sufficient interest, where the original applicant has died after the introduction of the application before the Court (see Malhous [GC] (dec.), cited above). However, the situation varies where the direct victim dies before bringing his or her complaint before the Court (see Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005-VI).

The Court interprets the concept of ‘victim’ autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain, (dec.), no. 48335/99, ECHR 2000-XI), even though the Court should have regard to the fact that an applicant had been a party to the domestic proceedings. Regarding complaints under Article 6, the Court has been prepared to recognise the standing of a relative either when the complaints were of a general interest and the applicants, as heirs, had a legitimate interest in pursuing the application (see Loyen, cited above, § 29, and, conversely, Biç and Others v. Turkey, no. 55955/00, § 23, 2 February 2006) or on the basis of the direct effect on the applicant's patrimonial rights (see Ressegatti, cited above, § 25).

In the present case, the Court notes that the direct victim died during the constitutional proceedings, which lasted over ten years at first instance and were necessary to exhaust domestic remedies. The constitutional jurisdictions did not reject the applicant's request to intervene in the proceedings in his capacity as brother and heir of the plaintiff, nor did they refuse to entertain his appeal. Furthermore, he was made to bear the costs of the case instituted by his sister and can thus be considered to have a patrimonial interest to recover the costs.

Moreover, the Court considers that the question of an alleged defect in the relevant law which made it impossible to challenge a judge on the basis that the lawyer appearing before him was his nephew or that the issue at stake in the case related to the conduct of his brother is a matter which raises issues concerning the fair administration of justice and thus an important question relating to the general interest.

In conclusion, the Grand Chamber, like the Chamber, considers that for both of the foregoing reasons, the applicant has standing to introduce the present application. The Government's objection is thus dismissed.

The Chamber considered that, according to Maltese law and with reference to the Court of Appeal hearing of 12 October 1992, there was no specific ground on which to challenge the judge on the basis that he was the uncle of one of the advocates appearing before him and consequently Mrs M. could not have asked for the judge's withdrawal. Moreover, the applicant had brought the complaint before the Civil Court in its constitutional jurisdiction after the incident in question, and the latter had rejected the Government's objection of failure to exhaust ordinary remedies and dealt with the merits of the case.

The Government submitted that during the hearing of 12 October 1992 Mrs M. did not complain that she had not been given an opportunity to make submissions, nor did she lodge a request to make further submissions. Similarly, she did not challenge the judge at any stage of the proceedings and during the same proceedings she failed to raise before the relevant courts the issue under Article 6 of the Convention that her right to an impartial tribunal was ‘likely’ to be infringed. Mrs M. never requested that the Chief Justice withdraw from her case, a plea which would not have been decided by the Chief Justice alone, but by the three judges sitting in the case. According to the Government, Mrs M. could have made such a request under Article 734 (1) (e) of the COCP (see paragraph 28 above) which reflected the nemo iudex in causa propria rule in general. The Government made reference to various domestic decisions in which the courts had repeatedly attributed overriding importance to the fact that justice should not only be done but be seen to be done and that this had been an acknowledged legitimate ground for the withdrawal of or challenge to a judge. However, at the hearing before the Grand Chamber the Government admitted that there had been no domestic case-law proving that a challenge under Article 734 (1) (e) of the COCP in such a case as the present one would have been successful.

The applicant made no submissions on this point.

In accordance with Article 35 § 1 of the Convention, the Court may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Zarb Adami v. Malta (dec.), no. 17209/02, 24 May 2005). However, the rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. There is no obligation to have recourse to remedies which are inadequate or ineffective (see Raninen v. Finland, 16 December 1997, § 41, Reports of Judgments and Decisions 1997-VIII).

The Grand Chamber, like the Chamber, considers that the applicant could not have challenged the Chief Justice under Article 734 of the COCP (see paragraph 28 above), since at the time a nephew-uncle relationship between advocate and judge was not amongst the listed grounds for challenge. Article 734 (1) (f) specifically referred to certain family relationships (see paragraph 28 above). However, it excluded siblings or other more distant relatives, who would have been mentioned had this been the legislator's intention. The fact that the law is silent as regards these relationships does not support the argument that they can be assumed to be covered by the relevant legal provision in the absence of specific case-law to this effect. Nor has it been shown by the Government that Article 734 (1) (e), a more general provision, would have provided the basis for a remedy. Moreover, in this respect, the Government conceded that there had been no domestic case-law showing that a challenge under Article 734 (1) (e), in a case such as the present one, had ever been successful. It follows that in the present case the applicant could not reasonably have been expected to take this course of action.

Most importantly, the Court notes that, following the impugned judgment, Mrs M., succeeded by the applicant, instituted constitutional proceedings before the Civil Court (First Hall) alleging a breach of the right to a fair trial as guaranteed by Article 6 of the Convention in view of the Court of Appeal's lack of impartiality and the lack of opportunity to make submissions before it. The applicant subsequently appealed to the Constitutional Court against the Civil Court's judgment rejecting his claim. The Court considers that, in raising this plea before the domestic constitutional jurisdictions, which rejected the Government's objection of non-exhaustion of ordinary remedies and did not reject the claim on procedural grounds but examined the substance of it, the applicant made normal use of the remedies which were accessible to him and which related, in substance, to the facts complained of at the European level (see, mutatis mutandis, Zarb Adami (dec.), cited above).

The mere fact that the applicant could have attempted to remedy the alleged violation in alternative ways throughout the different stages of the proceedings or that he waited till the end of the proceedings to make such complaint, as was permissible under domestic law, does not alter this conclusion. Under the established case-law, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see, inter alia, Kozacıoğlu v. Turkey[GC], no. 2334/03, § 40, 19 February 2009).

It follows that the application cannot be rejected for non-exhaustion of domestic remedies and that the Government's objection is therefore dismissed.

Distinguishing between the injunction proceedings arising out of the main action and the proceedings complained of, the Chamber considered the latter as ‘post-injunction proceedings’, that is, a new and distinct set of proceedings by which the flaws of the interim injunction decision could be contested. Both the Court of First Instance and the Court of Appeal had examined the merits of Mrs M.'s complaint and therefore determined the dispute over ‘the right to be heard’ in the injunction proceedings. Thus, the applicant could claim on at least arguable grounds that the proceedings were covered by Article 6. Moreover, when the applicant eventually complained of the unfairness of these ‘post-injunction proceedings’, the constitutional jurisdiction looked at the merits of the applicant's complaint regarding the impartiality of the Court of Appeal and, consequently, recognised the applicability of Article 6 to these proceedings. The Chamber recalled that according to the Court's judgment in Vilho Eskelinen v. Finland ([GC], no. 63235/00, 19 April 2007, § 61) independently of the Court's autonomous application of Article 6, its applicability would be recognised by the Court, if the domestic system had recognised it formerly: ‘if a domestic system bars access to a court, the Court will verify that the dispute is indeed such as to justify the application of the exception to the guarantees of article 6. If it does not, then there is no issue and Article 6 § 1 will apply.’ Furthermore, the concept of a ‘civil right’ under Article 6 § 1 could not be construed as limiting an enforceable right in domestic law within the meaning of Article 53 of the Convention (see Okyay and Others v. Turkey, no. 36220/97, § 68, ECHR 2005-VII). It followed that Article 6 was applicable to the present case.

The Government submitted that, as evidenced by the documents submitted to the Grand Chamber, they had contested the applicability of Article 6 during the domestic proceedings, albeit not in their initial submissions before the domestic court. However, under domestic law, they were not estopped from putting forward this objection at a later stage of the domestic proceedings. Moreover, the only reason why the domestic court had not dealt with this issue was that it had accepted their preliminary objection based on the argument that the case was frivolous and vexatious.

The proceedings complained of concerned the allegation that the right to be heard had been breached during injunction proceedings. Firstly, the latter were not covered by Article 6 as they were preliminary precautionary measures without any determination of the merits of any right or obligation claimed. Whether or not a claimant was successful in obtaining an injunction, he or she could institute the appropriate action to put forward his or her claim on the merits. It followed that any action arising from injunction proceedings did not also determine any rights or obligations. Even if, according to procedural law, these proceedings had to be instituted by means of a separate action, they were a continuation of injunction proceedings, equivalent to an appeal against the injunction, and therefore could not in any way determine the merits of the initial claim.

Moreover, the right to be heard in injunction proceedings was not established in Maltese law. According to domestic case-law, such guarantees could be done away with in injunction proceedings in view of the particular requirements, for example speediness, of such an action. The fact that the Civil Court (First Hall) had found in favour of Mrs M., stating that a right to be heard existed when injunction proceedings were set down for a hearing, did not suffice to give the applicant an arguable claim and make Article 6 applicable to such proceedings, since this did not amount to a determination of civil rights.

The only civil right arising in the various sets of proceedings in the present case was the right to hang out the washing, which was the central part of the merits of the original claim that was conclusively decided on 6 March 1992, no appeal having been lodged against it. Indeed, as stated by the Court of Appeal, the arguments on the right to be heard in injunction proceedings could easily have been submitted when defending the substantive action and that was what economy of proceedings demanded.

With respect to the Chamber's interpretation of Eskelinen and Article 53 of the Convention, the Government shared the view of the three judges in their dissenting opinion attached to the Chamber judgment and the intervener's observations.

The applicant submitted that once a warrant of prohibitory injunction was issued, it continued to have effect until the final outcome of the proceedings, unless it was revoked before that date. Thus, the injunction proceedings in which the warrant was granted affected the civil rights of the parties, albeit provisionally, for a certain period of time. Thus, considering the far reaching effects resulting from such a warrant, Article 6 of the Convention applied, especially in the Maltese context.

However, the proceedings complained of were distinct from the injunction proceedings and also covered by Article 6. They constituted formal ad hoc proceedings instituted by writ of summons followed by an appeal petition and concluded by a judgment at first instance and a judgment on appeal. Indeed they were listed for hearing before a different court and not before the judge who decided the injunction proceedings. The civil right at issue in these proceedings was ‘the right to be heard’ and the nature of the case was not different from that of any other case before the ordinary domestic courts.

The applicant submitted that the fact that the original proceedings, regarding the right to hang out the washing, had been concluded on 6 March 1992 did not render the judgment complained of with no practical effect. Indeed, it had been Mr F. who had lodged the appeal and who had not sought to withdraw it once the merits of the original complaint had been determined, thus reaffirming the utility and separate nature of this action. Moreover, since the Government had not correctly submitted this plea in domestic proceedings nor had the domestic courts raised it of their own motion, the Government should not be allowed to raise the plea now, otherwise they would be in a more favourable position than the applicant, who had to exhaust all his claims before the domestic courts.

The applicant submitted that the Eskelinen judgment need not be relied on in the present case since Article 6 was in any case applicable for the above reasons. Moreover, he agreed with the Chamber's interpretation of Article 53 of the Convention, whereby the protection of human rights in any area could not be lower before the Court than before the domestic courts.

The Government of the Czech Republic submitted that the Court should adhere to its case-law that Article 6 did not apply to proceedings concerning interim measures because they were only provisional determinations. They submitted that interim measures could not be seen as independent proceedings but only within the context of the main proceedings. Accordingly, a departure from the Court's jurisprudence in the matter could be accepted in so far as the provisional aspect no longer constituted a valid reason for ‘that part of the proceedings’ not to be covered by Article 6. It followed that Article 6 could be applicable to interim measures; however, a violation would arise only where any shortcoming in the interim measure proceedings rendered the entire proceedings unfair. It followed that it would be difficult to imagine the finding of a violation where the main proceedings had been definitively disposed of.

Moreover, Article 6 should be applicable only on condition that the measure sought concerned, albeit provisionally, the determination, the existence, scope or conditions of civil rights and obligations. The same held for proceedings ancillary to the interim measure proceedings, though it would be difficult for a procedural right (such as the right to be heard as in the present case) to qualify as a civil right.

They further submitted that the judgment in Vilho Eskelinen was limited to proceedings between civil servants and the State in relation to access to court. Moreover, giving protection at domestic level did not mean that Article 6 was applicable and whether or not applicability was contested in domestic proceedings was an irrelevant factor that should not be considered by the Court.

In respect of Article 53 of the Convention, the Czech Government submitted that this provision was put in placeto prevent the standard attained in the protection of human rights from being lowered on the ground that a certain right was not guaranteed by the Convention. They reiterated that there was nothing preventing national courts from going beyond the standards established by the Convention.

Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court's constant case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, inter alia, Fey v. Austria, 24 February 1993, Series A no. 255, §§ 27, 28 and 30, and Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).

As to the subjective test, the principle that a tribunal shall be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005-…). The Court has held that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Wettstein, cited above, § 43). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill-will for personal reasons (see De Cubber v. Belgium, 26 October 1984, Series A no. 86, § 25).

In the vast majority of cases raising impartiality issues the Court has focused on the objective test. However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou, cited above, § 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge's subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, Reports 1996-III, § 32).

As to the objective test, it must be determined whether, quite apart from the judge's conduct, there are ascertainable facts which may raise doubts as to his impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Wettstein, cited above, § 44, and Ferrantelli and Santangelo v. Italy, 7 August 1996, Reports1996-III, § 58).

The objective test mostly concerns hierarchical or other links between the judge and other actors in the proceedings (see court martial cases, for example, Miller and Others v. the United Kingdom, nos. 45825/99, 45826/99 and 45827/99, 26 October 2004; see also cases regarding the dual role of a judge, for example, Mežnarić v. Croatia, no. 71615/01, 15 July 2005, § 36 and Wettstein, cited above, § 47, where the lawyer representing the applicant's opponents subsequently judged the applicant in a single set of proceedings and overlapping proceedings respectively) which objectively justify misgivings as to the impartiality of the tribunal, and thus fail to meet the Convention standard under the objective test (see Kyprianou, cited above, § 121). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar,cited above, § 38).

In this respect even appearances may be of a certain importance or, in other words, ‘justice must not only be done, it must also be seen to be done’ (see De Cubber, cited above, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, Reports 1998-VIII, § 45).

Moreover, in order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation (see Piersack, cited above, § 30 (d)). The existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is a relevant factor. Such rules manifest the national legislature's concern to remove all reasonable doubts as to the impartiality of the judge or court concerned and constitute an attempt to ensure impartiality by eliminating the causes of such concerns. In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality and so serve to promote the confidence which the courts in a democratic society must inspire in the public (see Mežnarić, cited above, § 27). The Court will take such rules into account when making its own assessment as to whether a tribunal was impartial and, in particular, whether the applicant's fears can be held to be objectively justified (see, mutatis mutandis, Pescador Valero v. Spain, no. 62435/00, §§ 24-29, ECHR 2003-VII).

The Court notes that specific provisions regarding the challenging of judges were set out in Article 734 of the COCP (see paragraph 28 above). The Grand Chamber, like the Chamber, cannot but observe that Maltese law, as it stood at the time of the present case was deficient on two levels. Firstly, there was no automatic obligation for a judge to withdraw in cases where impartiality could be an issue, a matter which remains unchanged in the law in force at present. Secondly, at the time of the present case the law did not recognise as problematic — and therefore as a ground for challenge — a sibling relationship between judge and advocate, let alone that arising from relationships of a lesser degree such as those of uncles or aunts in respect of nephews or nieces. Thus, the Grand Chamber, like the Chamber, considers that the law in itself did not give adequate guarantees of subjective and objective impartiality.

The Court is not persuaded that there is sufficient evidence that the Chief Justice displayed personal bias. It therefore prefers to examine the case under the objective impartiality test which provides for a further guarantee.

As to the objective test, this part of the complaint is directed at a defect in the relevant law under which it was not possible to challenge judges on the basis of a relationship with a party's advocate unless it was a first-degree relationship of consanguinity or affinity (see paragraph 28 above). Consequently, in the present case, Mrs M. was faced with a panel of three judges, one of whom was the uncle of the opposing party's advocate and the brother of the advocate acting for the opposing party during the first instance proceedings whose conduct was at issue in the appeal. The Grand Chamber is of the view that the close family ties between the opposing party's advocate and the Chief Justice sufficed to objectively justify fears that the presiding judge lacked impartiality. It cannot be overlooked that Malta is a small country and that entire families practising law are a common phenomenon. Indeed, the Government have also acknowledged that this had become a recurring issue which necessitated action resulting in an amendment to the relevant law, which now includes sibling relationships as a ground for withdrawal (see paragraph 29 above).

The foregoing considerations are sufficient to enable the Court to conclude that the composition of the court was not such as to guarantee its impartiality and that it failed to meet the Convention standard under the objective test.

There has therefore been a violation of Article 6 § 1 of the Convention.

Having found a violation of this provision, the Court considers that there is no need to make a separate ruling on the complaint that the judge's behaviour affected Mrs M.'s right to make submissions.

The Chamber considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered.

The applicant maintained his claim of 5,000 euros (EUR) for non-pecuniary damage suffered.

The Government submitted that there were no reasons to revise the Chamber's conclusion.

The Grand Chamber agrees with the Chamber that in respect of the distress allegedly caused in the circumstances of the present case the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered (see Chmelíř v. the Czech Republic, no. 64935/01, § 74, ECHR 2005-IV, and Coyne v. the United Kingdom, 24 September 1997, Reports,§ 64).

The Chamber rejected the costs claimed for the proceedings before the first-instance and appeal court, since they were not incurred to prevent or redress the violations found. It further rejected the sums claimed for professional legal fees for the domestic constitutional proceedings because the applicant had failed to prove that these had actually been incurred. It considered however that the applicant had incurred some costs, both at the national and at the European level, in order to put right the violation of the Convention and awarded the applicant EUR 2,000 for the costs incurred before the domestic courts and for the proceedings before it.

The applicant claimed EUR 1,177 for the proceedings before the Chamber, including EUR 850 for written pleadings, EUR 250 translation of documents and EUR 77 for administrative costs, and EUR 2,193 for the proceedings before the Grand Chamber, including EUR 850 for written submissions, EUR 350 in connection with the preparation of the legal aid request, EUR 300 preparation of the address to the Grand Chamber, EUR 250 for translation of written pleadings, EUR 300 for the appearance at the oral hearing and EUR 143 administrative costs.

The Government submitted that the amount claimed for the proceedings before the Chamber was less than that awarded by the Chamber and the amount claimed for the proceedings before the Grand Chamber was excessive and various items constituted double billing.

The Grand Chamber notes that the award of the Chamber covered the costs and expenses of the domestic proceedings and those of the Convention proceedings up to the Chamber judgment, and, accordingly, confirms the award of EUR 2,000 made by the Chamber.

In respect of the costs and expenses for the proceedings before the Grand Chamber, the Court reiterates that 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. In the present case, regard being had to the above criteria and the information in its possession, notably the fact that the applicant did not submit any evidence substantiating the claims and the absence of details as to the number of hours worked and the rate charged per hour, the Court is not convinced that all the costs incurred in the Grand Chamber proceedings were necessarily incurred and were reasonable as to quantum. Taking into account the sum of EUR 1,854.86 in legal aid paid by the Council of Europe in respect of the Grand Chamber proceedings, the Court does not make an award under his head.

Consequently, the Court confirms the award of EUR 2,000 under the head of costs and expenses for proceedings before the Chamber.