CASE OF A. AND E. RIIS v.
(Application no. 16468/05)
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 A.
and E. v.
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens
Giorgio Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
in private on
Delivers the following judgment, which was adopted on that date:
case originated in an application (no. 16468/05) against the
2. The applicants were initially represented by Mr H. Berge, a
lawyer practising in
THE CIRCUMSTANCES OF THE CASE
applicants were born in 1930 and 1922, respectively,
and have been living in
is one of several applications brought by the applicants under the Convention
in relation to the same case complex, the factual background of which is
summarised in Amelia and Einar Riis against Norway (dec.)(no. 23106/02, struck out on
6. On 29 June 1990 the second applicant, on the first applicant's behalf, instituted proceedings (case no. 90-2020 A/01) against the State seeking 8,000,000 United States Dollars (USD) in compensation of pecuniary damage allegedly caused by the Ministry of Finance by having blocked the bankruptcy against the Reksten companies when these had announced their insolvency in April 1975.
above suit was lodged on
11. After a number of communications between the parties and the City Court in December 1995, on 10 January 1996 Mr Engelschiøn asked the City Court to adjourn the case pending the final outcome of separate compensation proceedings brought by the first applicant against Falkefjell Ltd. and Mr Kristoffer Olsen, in which the City Court had found for the latter and the first applicant had appealed (for details of the latter proceedings, see A. and E. Riis v. Norway, no. 9042/04, §§ 11-36, 31 May 2007).
13. In response the
first applicant stated in a letter of
15. On 23 June 2003 the Attorney General (Civil Matters) informed the City Court about a friendly settlement between the first applicant and the State in another case, which had been concluded on 5 June 2003 (for details see Amelia and Einar Riis against Norway (dec.) no. 23106/02, struck out on 8 July 2004).
19. The first applicant
and her lawyer, Mr Berge, did not appear before the City Court either at a
preparatory meeting held on 25 November 2005 or at the main hearing held on 16
January 2006. On
20. The first applicant
appealed against the dismissal of her case by the City Court but on
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
21. The applicants complained that the length of the proceedings, instituted first in 1989 and a second time in 1990, had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1. In this connection they also relied on Article 13 of the Convention. It is not clear what matters this allegation concerned other than the length aspect as such. In the view of the Court this matter can most appropriately be considered under Article 6 § 1 which, in so far as is relevant, reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
22. The Government contested that argument.
1. The standing of the second applicant
23. From the outset, the Court observes that the second applicant was not a party to the domestic proceedings. He can therefore not be considered a “victim” for the purposes of Article 34 of the Convention. In so far as this applicant is concerned, the Court declares the application inadmissible under this provision.
2. Complaint under Article 6 § 1 about the duration of the proceedings
24. In the Government's opinion, the first applicant had not exhausted available domestic remedies according to Article 35 § 1 of the Convention with respect to her complaint about the duration of the proceedings. This question ought to be assessed with due regard to the effective remedies that were actually afforded to her under Norwegian law. Ever since the alleged wrongdoing had taken place, she had had the opportunity to claim compensation under national law based on the allegations put forward in her application to the Court. She had, however, not brought such a claim before the national courts. In the Government's view, the Norwegian law on compensation fulfilled the requirements of an effective remedy under Article 13 of the Convention. An allegation of violation of the Convention accompanied by a compensation claim was without doubt a sufficient reason for having locus standi before the national courts.
25. The Government further argued that, although the duration of the proceedings had been long, this was essentially attributable to the applicants' own conduct and could not give rise to a violation of the requirement of reasonableness under Article 6 § 1 of the Convention.
Court observes that the Government's reference to the non-exhaustion of
domestic remedies has not been supported by any specific reference either to
the legal ground or to any relevant case-law. Their contention must therefore
be rejected as being unsubstantiated (see A. and E. Riis v.
Court further notes that the period to be taken into consideration began on
28. In the light of the above, the Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on grounds of non-exhaustion or on any other grounds. It must therefore be declared admissible.
29. The Government, while acknowledging that the duration of the proceedings had been long, maintained that this fact ought to be attributed to the applicants' own actions and requests and could not justify the finding of a violation. Only minor and insignificant periods of the time elapsed could be attributed to the national courts.
30. In fact, the Government pointed out that the City Court had made several attempts to hold the main hearing, in spite of protests from the first applicant. Not only had she made several requests for the postponement of the main hearing, but the pleadings and evidence had also been broadly based and voluminous, and thus necessarily making the preparation of the case a time-consuming exercise for the court. It had involved the reading of several hundred pages of written pleadings and supporting documents of questionable relevance. The time elapsed had also been due to the fact that the case had been closely related to other actions brought by the same party. In consultation with the first applicant, the case had been adjourned for several periods in accordance with her own wishes.
31. The first applicant pointed out that her main problem during this case had been the respondent Government's failure to disclose relevant documents, despite the requests made to this effect by the second applicant and by their lawyers. By not requiring such disclosure the courts had unduly favoured the State to the plaintiff's detriment.
32. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
33. 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).
34. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Not only were there several periods of inactivity before the national courts or lack of diligence on their part (see paragraphs 7, 8, 10, 15 to 17 above), but the total duration of the proceedings in question, 16 years and three months, was also particularly long. The Court is mindful of the fact that the present case was adjourned pending the outcome of another case brought against different parties (see paragraphs 11 to 13 above). However, the duration of the latter proceedings became the subject of a previous application under the Convention in which the Court found that they had exceeded a reasonable time in breach of Article 6 § 1 of the Convention (see in A. and E. Riis v. Norway (No. 1), cited above, § 55). While the Court accepts that the first applicant has contributed to the length of the proceedings (see notably paragraphs 11 to 14 above), this could not absolve the authorities of the respondent State from their obligation under Article 6 § 1 to ensure that the proceedings be concluded within a reasonable time (see Dattel and Others v. Luxembourg, no. 13130/02, §§ 53-54, 4 August 2005; and A. and E. Riis v. Norway (No. 1), cited above, § 55). 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
35. 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.”
36. The first applicant claimed compensation for damage caused by the State's contribution to undermine, delay or destroy legal proceedings, with the consequence that the first applicant had sustained losses in inheritance rights amounting to 14,000,000 USD, plus interest.
37. The Government did not express an opinion on the matter.
38. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the first applicant must have sustained non-pecuniary damage due to the excessive length of the proceedings. Ruling on an equitable basis, and bearing in mind the first applicant's own contribution to the protraction of the proceedings, it awards her EUR 20,000 under that head.
B. Costs and expenses
39. The applicants also claimed NOK 621,068 (corresponding approximately to EUR 80,000) for the costs and expenses incurred before the domestic courts.
40. The Government did not express an opinion on the matter.
41. 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 in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum. In the present case, the Court has received no vouchers or particulars regarding the costs incurred in the domestic proceedings. Nor is it satisfied that the domestic costs claimed were necessarily incurred in order to prevent the matter found to constitute a violation of the Convention. Accordingly, the Court does not find that it can make any award under this heading.
C. Default interest
42. 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 first applicant's complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention with respect to the first applicant;
(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage to be converted into the national currency of the respondent State at the rate applicable at the date of settlement plus any tax that may be chargeable;
(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;
4. Dismisses the remainder of the first applicant's claim for just satisfaction.
English, and notified in writing on
Søren Nielsen Christos
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