FIRST SECTION
CASE OF A. AND E. RIIS v.
(Application no. 16468/05)
JUDGMENT
FINAL
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,
Loukis Loucaides,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens
Giorgio Malinverni, judges,
and Mr S.
Nielsen, Section
Registrar,
Having deliberated
in private on
Delivers the
following judgment, which was adopted on that date:
PROCEDURE
1. The
case originated in an application (no. 16468/05) against the
2. The applicants were initially represented by Mr H. Berge, a
lawyer practising in
3. On
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The
applicants were born in 1930 and 1922, respectively,
and have been living in
5. This
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.
7. The
above suit was lodged on
8. On
9. On
10. 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.
On
12. On
13. In response the first
applicant stated in a letter of
14. On
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).
16. Between
17. On
18. On
19. The first applicant and
her lawyer, Mr Berge, did not appear before the City Court either at a
preparatory meeting held on
20. The first applicant
appealed against the dismissal of her case by the City Court but on
THE LAW
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.
A. Admissibility
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.
26. The
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.
27. The
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.
B. Merits
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.
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 rep
A. Damage
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;
3. Holds
(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
(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.
Done in
English, and notified in writing on
Søren
Nielsen Christos
rozakis
Registrar President