PROCEDURE

1.  The case originated in an application (no. 65413/01) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Claudio Bonamassa (“the applicant”), on 20 January 2001.

2.  The applicant is represented before the Court by Mr R. Mastroianni, a lawyer practising in Florence. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza and by their successive co-agents, respectively Mr V. Esposito and Mr F. Crisafulli.

3.  On 27 June 2002 the Court declared the application admissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1950 and lives in Florence.

5.  He is the owner of a flat in Florence, which he had let to A.R.

6.  In a registered letter of 29 June 1987, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date.

7.  The tenant told the applicant that he would not leave the premises.

8.  In a writ served on the tenant on 7 July 1989, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.

9.  By a decision of 21 September 1989, which was made enforceable on the same day, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 21 September 1990.

10.  On 25 November 1994, the applicant served notice on the tenant requiring him to vacate the premises.

11.  On 9 February 1995, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 22 February 1995.

12.  Between 22 February 1995 and 13 June 2001, the bailiff made nine attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.

13.  On 6 December 1995, the applicant made a statutory declaration that he urgently required the premises as accommodation for his son

14.  On 17 August 2000, pursuant to section 6 of Law no. 431/98, the enforcement proceedings were suspended until 13 June 2001.

15.  On 29 June 2001, the applicant recovered possession of the flat.

II.  RELEVANT DOMESTIC LAW

16.  Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.

A. The system of control of the rents

17.  As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.

18.  The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.

19.  The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.

20.  Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.

B.	Obligations of the tenant in the case of late restitution

21.  The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:

“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”.

22.  However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.

23.  In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.

24.  The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.

THE LAW

I.	ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION

25.  The applicant complained of his prolonged inability to recover possession of his flat, owing to the lack of police assistance. He alleged a violation of his right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

26.  The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

27.  The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-48).

28.  The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicant had to wait approximately six years and four months after the first attempt of the bailiff before being able to repossess the flat.

Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  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.”

A.  Pecuniary damage

30.  The applicant sought reparation for the pecuniary damage he had sustained, which he calculated as follows: 25,000 euros (EUR), the sum being the loss of rent for the period from to August 1992 (when the legislation relaxing on rent restrictions entered into force) and June 2001 (when the applicant recovered possession of the flat).

31.  The Government contested the claim.

32.  The Court observes that the applicant submitted the requested amount as the result of the difference between the market value rent and the rent imposed by law. For the purpose of assessing the market value rent, the applicant submitted two statements of an expert (estate agency) which estimates respectively the value of the flat for the year 1997 and the market value rent for the year 2001.

33.  The Court notes that, in December 1995, the applicant made a statutory declaration that he urgently required the flat as accommodation for his son. Consequently, he cannot claim any entitlement to reimbursement of loss of rent but he can only claim the reimbursement of such costs and expenses incurred to rent another flat which go beyond the rent received from the tenant. However, he has not made such a claim. Therefore, the Court rejects the claim.

B.  Non-pecuniary damage

34.  The applicant claimed EUR 50,000 for the non-pecuniary damage.

35.  The Government contested the claim.

36.  The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 6,000 under this head.

C.  Costs and expenses

37.  The applicant also claimed reimbursement of his legal costs and expenses as follows:

- EUR 3,181.85 for the costs of the enforcement proceedings;

- EUR 5,100 for the costs and expenses before the Court.

38.  As regards the costs of the enforcement proceedings, the Government contested the claim. As regards the costs and expenses before the Court, the Government did not make any submissions.

39.  On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicant the sum of EUR 1,500 for the costs and expenses incurred in the domestic proceedings and EUR 2,000 for the costs and expenses incurred before the Court.

40.  The Court awards a total sum of EUR 3,500 for legal costs and expenses.

D.  Default interest

41.  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.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:

(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 applicant's claim for just satisfaction.

Done in English, and notified in writing on 2 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 7589/12) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Marcin Brajer (“the applicant”), on 27 January 2012.

2.  The applicant was represented by Mr P. Kozanecki, a lawyer practising in Łódź. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

3.  On 6 May 2013 the application was communicated to the Government.

4.  The Government objected to the examination of the application by a Committee in part. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1976 and is currently detained in Łódź Remand Centre.

A.  The applicant’s pre-trial detention and criminal proceedings against him

6.  On 25 September 2006 the Łódź District Court (Sąd Rejonowy) gave a decision, ordering the applicant’s detention on remand for a period of three months. He was charged with a number of offences committed in an armed organised criminal group. At that time the applicant was serving a prison sentence imposed in another criminal proceedings against him. The end of that prison sentence fell on 18 November 2007.

In its decision, the District Court relied on a reasonable suspicion that the applicant had committed the offences in question. The court further emphasised the gravity of the offences and the likelihood of a heavy prison sentence being imposed on the applicant after conviction. According to the domestic court, the fact that the applicant was at the relevant time serving a prison sentence did not minimise the risk of him obstructing the proceedings. Additionally, the ongoing questioning of other members of the criminal group as well as the necessity to obtain other evidence justified remanding the applicant in custody.

7.  On 19 December 2006 and 26 June 2007 the Łódź  (Sąd Okręgowy) extended the applicant’s pre-trial detention. Subsequently, the Łódź Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention on 19 September 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008.

In their detention decisions the courts repeatedly relied on a strong suspicion that the applicant had committed the offences in question and on the likelihood of a heavy prison sentence being imposed on him. The courts considered that keeping the applicant in detention on remand was necessary to secure the proper conduct of the proceedings. They emphasised the complex character of the case and the considerable number of co-accused involved who, if released, would had obstructed the proceedings. The courts noted that due to the nature of the organised criminal group, its methods of influencing and bringing pressure to bear on the other members of the group as well as witnesses, the authorities had had difficulties in collecting evidence and taking statements.

8.  On 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and drug-trafficking committed in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants. The prosecution authorities requested that 318 witnesses be heard before the court.

9.  On 30 March 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain.

In their decisions the courts repeated the grounds previously given for the applicant’s detention.

10.  Meanwhile, the court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place.

11.  The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the coaccused and problems with sound system in the court room.

12.  In May 2010 the Regional Court gave a severance order and decided to determine charges against two coaccused separately.

13.  The bill of indictment was only finally read out to the defendants at the hearing held on 27 May 2010.

14.  At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. One hearing was adjourned because of the motion for disqualification of the presiding judge lodged by one of the co-accused.

15.  In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges.

16.  Meanwhile, on 17 August 2011 the Łódź Regional Court ordered that the applicant’s detention on remand be lifted on condition that he paid the bail in the sum of 20,000 Polish zlotys (PLN) within the period of two weeks from the date of the decision.

On the same date the applicant was released on bail and police supervision. He was also prohibited from leaving the country.

17.  The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from witnesses.

Of the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of a judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties.

18.  Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants.

19.  The criminal proceedings against the applicant are still pending at first instance.

B.  Proceedings under the 2004 Act

20.  On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and PLN 20,000 in compensation.

21.  On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź  had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Length of pre-trial detention

22.  The relevant domestic law and practice concerning the imposition of pretrial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 2733, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 2223, 4 May 2006.

B.  Length of proceedings

23.  The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-VIII, and its judgments in the cases of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V and Krzysztofiak v. Poland, no. 38018/07, §§ 23-30, 20 April 2010.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

24.  The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

25.  By letter dated 22 October 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application under Article 5 § 3 of the Convention concerning the length of applicant’s detention on remand. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“(...) the Government wish to express by way of the unilateral declaration, their acknowledgement of the fact that the period of the applicant’s pre-trial detention, was not compatible with a “reasonable time” requirement within the meaning of Article 5 § 3 of the Convention.(...)

In these circumstances, and having particular regard to violation of Article 5 § 3 of the Convention, the Government declare that they offer to pay the applicant the amount of PLN 10,000, which they consider to be reasonable in the circumstances of the case. The sum referred to above, which is to cover any pecuniary and nonpecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points. (...)

The Government would respectfully suggest that the above declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.(...)”

26.  The applicant indicated that he was not satisfied with the terms of the unilateral declaration and considered that the sum mentioned in the Government’s declaration was unacceptably low.

27.  The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

28.  It also recalls that in certain circumstances, it may strike out an application or part thereby under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

29.  To this end, the Court examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).

30.  The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints under Article 5 § 3 of the Convention about the length of pre-trial detention (see Kauczor v. Poland, no. 45219/06, 3 February 2009 with further references).

31.  Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).

32.  Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

33.  In view of the above, it is appropriate to strike this part of the application out of the list.

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS

34.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ...any criminal charge against him, everyone is entitled to a hearing within a reasonable time by [a] ... tribunal...”

35.  The Government contested that argument.

36.  The period to be taken into consideration began on 25 September 2006 and has not yet ended. It has thus lasted so far eight years for one level of jurisdiction.

A.  Admissibility

37.  The Court notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties submissions

38.  The Government submitted that the national authorities displayed due diligence in the conduct of the proceedings in issue. They argued that the length of the proceedings was not excessive in the light of the complexity of the case, which concerned the charges of organised crime brought against several defendants. The Government further submitted that the frequent adjournments of the hearings were not attributable to the State, as they resulted from absences of the parties. They stressed that the trial court had scheduled altogether 101 hearings for a period of some three years and nine months of judicial proceedings.

39.  The applicant submitted that the length of the proceedings against him was unreasonable. He stressed that he had remained in detention during a significant part of the criminal proceedings against him.

2.  The Court’s assessment

40.  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 applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

41.  The Court can accept that some delays in the procedure can be explained by the fact that the domestic authorities had to deal with a very complex case which involved a number of defendants and voluminous evidence. Moreover, the proceedings concerned charges of organised crime which inevitably made the task of trying the accused considerably more difficult than in an ordinary criminal case (see Horych v. Poland, no. 13621/08, § 115, 17 April 2012). However, these facts in themselves cannot justify the overall length of the proceedings.

42.  As regards the conduct of the applicant, the Court notes that he had not contributed to the delays in the proceedings.

43.  With respect to the conduct of the authorities, the Court observes that during the judicial stage of the proceedings, between June 2009 and July 2013, the trial court held only some forty hearings, that is less than one hearing per month (see paragraphs 9-17 above). It is true that a considerable number of hearings were scheduled and that most of the adjournments had been caused by reasons which could not in themselves be attributed to the trial court (see paragraphs 9-16 and 40 above). However, the duty to administer justice expeditiously was incumbent in the first place on the domestic authorities (see Kudła v. Poland [GC], no. 30210/96, § 130, ECHR 2000XI). Notwithstanding the significant difficulties which they faced in the present case, they were required to organise the trial efficiently and to ensure that the Convention guarantees were fully respected in the proceedings.

This is all the more relevant because the applicant was in custody for a substantial part of the proceedings (see paragraphs 5-6, 8 and 15 above). In this connection the Court would recall that persons kept in detention pending trial are entitled to “special diligence” on the part of the authorities (see, for example, Abdoella v. the Netherlands, judgment of 25 November 1992, Series A no. 248-A, p. 17, § 24; Jabłoński v. Poland, no. 33492/96, § 102, 21 December 2000).

Lastly, the Court notes that the proceedings, which have already lasted eight years, are still pending before the first-instance court.

44.  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.

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.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

45.  The applicant complained, without invoking any provisions of the Convention, that he had been detained in cells where window shutters had been installed and that constant darkness had caused deterioration of his sight. He also alleged that during his detention he had had limited contact with his family, he had not been able to attend his mother’s funeral and that he had not been allowed to work and had to rely on his family’s financial support.

However, the Court observes that the applicant failed to raise any of the above complaints at the domestic level. They must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

46.  Lastly, the applicant complained under Article 13 of the Convention that he had had no ‘effective remedy’ against the excessive length of the proceedings. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

47.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła, cited above, § 154, §§ 156-157; Figiel v. Poland (no. 2), no. 38206/05, § 31, 16 September 2008).

48.  The fact that in the present case the applicant’s claim for just satisfaction failed does not in itself render the remedy under the 2004 Act incompatible with Article 13. The expression “effective remedy” used in Article 13 cannot be interpreted as a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Figiel (no. 2), cited above, § 33, with further references).

In the light of the foregoing, the Court considers that in the circumstances of the present case it cannot be said that the applicant’s right to an effective remedy under Article 13 of the Convention has not been respected.

49.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

50.  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.”

51.  The applicant did not submit a claim for just satisfaction or for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Takes note of the terms of the respondent Government’s unilateral declaration as regards the complaint under Article 5 § 3 of the Convention concerning the excessive length of detention on remand;

2.  Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

3.  Declares the complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

4.  Holds that there has been a violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 13 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.   The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 9 September 1994, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.  It originated in an application (no. 14570/89) against the Grand Duchy of Luxembourg lodged with the Commission under Article 25 (art. 25) by an association under  law - the Agricultural Association for the Promotion of Milk Marketing ("Procola") - and sixty-three of its members on 22 November 1988.

The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46).  The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 (art. 6) of the Convention.

2.   In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant association stated that it wished to take part in the proceedings and designated the lawyer who would represent it (Rule 30).

3.   The Chamber to be constituted included ex officio Mr A. Spielmann, the elected judge of  nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)).  On 24 September 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J. De Meyer, Mr R. Pekkanen, Mr J.M. Morenilla, Mr F. Bigi, Mr G. Mifsud Bonnici, Mr D. Gotchev and Mr P. Kuris (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4.   As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Luxembourg Government ("the Government"), the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant to the order made in consequence, the Registrar received the applicant association's and the Government's memorials on 5 January and 20 January 1995 respectively.  On 28 March the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.

5.   In the meantime, on 17 March 1995, the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President's instructions.

6.   In accordance with the President's decision, the hearing took place in public in the Human Rights Building, , on 24 April 1995.  The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

(b) for the Commission

(c) for the applicant association

The Court heard addresses by Mr Weitzel, Mr Entringer and Mr Welter.

AS TO THE FACTS

I.   THE CIRCUMSTANCES OF THE CASE

7.   Procola is a dairy constituted as an agricultural association under  law.  Its registered office is at Ingeldorf.

A. The origins of the case

8.   Following the introduction of the "milk quota" system in the member States of the European Community by EEC Regulations Nos. 856/84 and 857/84 of 31 March 1984,  adopted, in a grand-ducal regulation of 3 October 1984, the provisions incorporating the Community rules into domestic law.  A number of ministerial orders were issued on 10 October 1984 allocating reference quantities for milk purchases (i.e. the quantities in excess of which an additional levy would be payable) to the four milk purchasers in the Grand Duchy, that is to say the dairies purchasing milk from producers - including the applicant association; the quantities were based on the figures for milk collected in 1981.

9.   The applicant association and two other milk purchasers appealed to the Judicial Committee of the Conseil d'Etat against the decisions fixing the reference quantities.  In accordance with Article 177 of the Treaty establishing the European Economic Community ("the EEC treaty"), that court referred a number of questions to the Court of Justice of the European Communities ("the Court of Justice") for a preliminary ruling, which was given in a judgment of 25 November 1986.

10.   In the light of the answers given by the Court of Justice, the Conseil d'Etat held, in a judgment of 26 February 1987, that the choice of 1981 as the reference year had led to discrimination between purchasers, contrary to Article 40 para. 3 of the EEC treaty.  The impugned decisions were accordingly set aside and the case was referred to the Minister of State for Agriculture for a fairer apportionment of the reference quantities among the four dairies in  by means of a grand-ducal regulation.

11.   On 27 May 1987 the Minister of State submitted a new draft grand-ducal regulation under which the reference quantities were to be allocated to the four milk purchasers on the basis of the milk deliveries made to them in 1983.  In order to meet 's obligations under Community law, it was proposed in the draft regulation to make the new reference quantity system applicable not only in the future but also retrospectively to previous milk-production years, with effect from April 1984.  The draft regulation was submitted to the Conseil d'Etat for an opinion.

12.   In a letter of 24 June 1987 the President of the Conseil d'Etat drew the Prime Minister's attention to the fact that such rules could be given retrospective effect only through legislation and not by means of a regulation.

13.   At the close of its deliberations of 2 July 1987 the Conseil d'Etat proposed certain amendments and a single-clause bill giving the future regulation retrospective effect from 2 April 1984, the date on which the milk-quota system had come into force in the European Community countries.

14.   With certain amendments, the Minister of State's draft regulation of 27 May 1987 became the Grand-Ducal Regulation of 7 July 1987 and the bill drafted by the Conseil d'Etat on 2 July 1987 became the Act of 27 August 1987, which made this regulation applicable with retrospective effect to "the twelve-month periods of application of the additional levy on milk commencing respectively on 2 April 1984, 1 April 1985 and 1 April 1986".  For these periods, paragraph 2 of the single section of the Act provided: "Purchasers' reference quantities shall be reallocated on the basis of the provisions of Article 3 of the Grand-Ducal Regulation of 7 July 1987 referred to above, and the basic and supplementary individual reference quantities shall be recalculated on the basis of the relevant provisions of the same regulation."

15.   On 21 September 1987 the Minister of State issued four ministerial orders fixing the applicant association's milk quantities for each of the four milk-production years between 2 April 1984 and 31 March 1988.

B. The applications for judicial review lodged with the Conseil d'Etat

16.   On 24 November 1987 Procola applied to the Judicial Committee of the Conseil d'Etat for judicial review of each of those four orders on the grounds that they adversely affected the association and its suppliers because its reference quantities for the milk-production years in question were too low.  In its pleadings, in addition to raising a number of grounds of appeal alleging the unlawfulness of the Grand-Ducal Regulation of 7 July 1987 and breaches of several of its provisions, the applicant association criticised its retrospective application to milk-production years before the one which had begun on 1 April 1987.  In the alternative, it asked the Judicial Committee to refer a number of questions to the Court of Justice for preliminary rulings, including one concerning the principle of non-retrospective application.

17.   In a judgment of 6 July 1988 the Judicial Committee dismissed the applications in the following terms:

"While it is true that as a general rule a statute makes provision only for the future, it is open to the legislature to give retrospective effect to a statute, in so far as this is not prohibited under the Constitution.   was required to fill the legal vacuum created by the Judicial Committee's judgment of 26 February 1987 quashing the regulation, otherwise it would have been in breach of its binding obligations under the Treaty of Rome.

Under Article 189 of that treaty, Community regulations are directly applicable.  Consequently,  was obliged to legislate on the matter of milk levies for the periods from 2 April 1984 to 31 March 1987, and only Parliament, which had the approval of the Community authorities, had the power to do so.

At all events, the penalties attaching to any failure on the part of purchasers to comply with the quantities during the first, second and third periods are no higher than those which would have been payable under the previous legislation.  The difference, amounting to approximately 35 million [francs], is to be borne by the State, with the agreement of the Community authorities, so that the retrospective effect of the milk quantities, far from causing the applicant association prejudice, is in fact beneficial to it.

A plea of unlawfulness cannot succeed against a statute and this ground must accordingly fail ..."

Four of the five members of the Judicial Committee had previously taken part in drawing up the Conseil d'Etat's opinion on the draft regulation and in framing the bill in issue.

II.   RELEVANT LAW

A. The EEC rules and their implementation in

18.   In order to regulate and stabilise the market in milk and milk products, which was characterised by overproduction, the Council of Ministers of the European Economic Community adopted Regulations (EEC) Nos. 856/84 and 857/84 of 31 March 1984.  These established in the Community member States, for a five-year period commencing on 2 April 1984, a system of additional levies on all milk delivered in excess of a guaranteed quantity, also known as the "reference quantity".

Each  was allocated a total reference quantity which it then had to apportion among milk producers, under Formula A, or milk purchasers (dairies) under Formula B.  The reference quantities for purchasers and producers were determined on the basis of the deliveries they took or their production in 1981, 1982 or 1983, weighted by a certain percentage fixed in such a way as not to exceed the guaranteed quantity.

The additional levy, which was set at a certain percentage of the target price for milk, was payable by producers or purchasers, as appropriate, on all milk produced or collected in excess of the reference quantity.  Where a  chose Formula B, purchasers were to pass on the cost of the additional levy only to those producers who had delivered a quantity of milk exceeding their quota.

19.    opted for Formula B, and the measures for implementing the Community rules were laid down in a grand-ducal regulation of 3 October 1984 and a number of ministerial orders of 10 October 1984 (see paragraph 8 above).

B. The Conseil d'Etat

20.   At the time when the judgment complained of by the applicant association was given, the second and third paragraphs of Article 76 of the Luxembourg Constitution, which govern the subject, provided:

"In addition to the Government there shall be a Council, whose functions shall be to deliberate on draft legislation and any amendments proposed thereto, determine administrative disputes and give its opinion on any other question referred to it either by the Grand Duke or pursuant to a statutory provision.  The organisation of this Council and the manner in which it is to perform its functions shall be laid down by statute."

1. Membership

21.   The Act of 8 February 1961, as amended on 26 July 1972, laid down the organisation of the Conseil d'Etat.  Section 1 provides:

"The Conseil d'Etat shall be composed of twenty-one councillors, eleven of whom shall form the Judicial Committee.

The latter figure shall not include those members of the Reigning Family who form part of the Conseil d'Etat."

The Act does not distinguish between the Judicial Committee and the Conseil d'Etat proper with regard to the appointment of the Conseil d'Etat's members (section 4).  The members are all appointed by the Grand Duke, who chooses them either directly or from a list of candidates put forward by the Chamber of Deputies or the Conseil d'Etat itself.

The members of the Judicial Committee are chosen from among the members of the Conseil d'Etat (section 5).

22.   Section 9 lays down the qualifying conditions for becoming a member of the Conseil d'Etat.  The same qualifying conditions apply to the Judicial Committee, except that its members must also be doctors of law or enjoy the rights appertaining to that title.

The duties of a member of the Conseil d'Etat are not full-time and are incompatible only with serving as a member of the Government, a Government adviser or a member of Parliament.  Section 22 (2) provides: "Members of the Judicial Committee may not take part in the deliberations on cases which they have already dealt with in some other capacity than as member of the Conseil d'Etat."  It thus implies that a councillor who has already had to deal with a case as a member of the Conseil d'Etat is not prevented from dealing with the same case if it comes before the Judicial Committee.

23.   In principle, the term of office of a member of the Conseil d'Etat ends only when he reaches the age-limit, which is at present 72.

2. Functions

24.   The Conseil d'Etat has mainly advisory and judicial functions (sections 7 and 8).

25.   With regard to its advisory functions (section 27), the Conseil d'Etat gives its opinion on all Government and private members' bills, draft regulations on general administrative matters, and draft regulations or orders required for the implementation of treaties.

26.   As a judicial body, the Conseil d'Etat, acting through its Judicial Committee, is the court of first and last instance in administrative proceedings.  Its judicial powers are restricted in two respects.  Firstly, it can only review the lawfulness of individual administrative decisions, not general regulatory decisions; secondly, except where there is an express statutory provision to the contrary (section 29), the only remedy available against these decisions is judicial review on the grounds of lack of competence, ultra vires, abuse of authority or breaches of the substantive or procedural rules protecting private interests (section 31).

3. Proposed reform

27.   In 1989 Article 76 of the Constitution was amended.  A bill at present before Parliament is intended to bring about a radical reform of this whole question, the aim being to separate the Conseil d'Etat's advisory and judicial functions.

PROCEEDINGS BEFORE THE COMMISSION

28.   Procola and sixty-three of its members, all farmers, applied to the Commission on 22 November 1988.  They complained of an infringement of their right to an independent and impartial tribunal, secured in Article 6 para. 1 (art. 6-1) of the Convention, on the ground that some of the members of the Judicial Committee who ruled on Procola's application for judicial review had previously given their opinion on the lawfulness of the impugned provisions.  They also argued that retrospective application of the decisions fixing the milk quantities was in breach of Article 7 (art. 7) of the Convention.  Lastly, they contended that the additional levies infringed their right to the peaceful enjoyment of their possessions contrary to Article 1 of Protocol No. 1 (P1-1).

29.   On 1 July 1993 the Commission declared Procola's application (no. 14570/89) admissible as regards the first complaint and inadmissible as to the remainder.  It declared the complaints submitted by Procola's members inadmissible, on the ground that they had not exhausted domestic remedies.

In its report of 6 July 1994 (Article 31) (art. 31), it expressed the opinion by nine votes to six that there had been no violation of Article 6 (art. 6) of the Convention.  The full text of the Commission's opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment .

FINAL SUBMISSIONS TO THE COURT

30.   In their memorial the Government asked the Court

"to hold that Article 6 para. 1 (art. 6-1) of the Convention is not applicable to the case before the Court or, in the alternative, that this provision (art. 6-1) was not violated".

31.   The applicant's lawyer asked the Court

"to hold, as regards the merits of the case, that there has been a violation of the European Convention for the Protection of Human Rights as regards Article 6 para. 1 (art. 6-1);

to hold that the applicant's loss amounts to 4,456,453 [ francs (LUF)], together with interest of [LUF] 568,290, i.e. a total of [LUF] 5,024,743".

AS TO THE LAW

I.   ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION

32.   The applicant association complained that the Judicial Committee of the Conseil d'Etat was not independent and impartial.  It alleged a violation of Article 6 para. 1 (art. 6-1) of the Convention, which provides:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal ..."

A. Applicability of Article 6 para. 1 (art. 6-1)

33.   Procola argued that this provision (art. 6-1) was applicable in the case.  The Government and the Commission took the opposite view.

1. Whether there was a dispute concerning a right

34.   The Government maintained that the application for judicial review made to the Judicial Committee of the Conseil d'Etat was an "objective" one (recours objectif) - that is to say that it did not relate to a private right - directed against a decision applying Community rules; it did not, therefore, concern a "contestation" (dispute) between the parties to an action.  If the Judicial Committee had upheld the application, it could only have set aside the impugned orders and remitted the case to the Minister of State, so that he could take a fresh decision.  It could not have ordered repayment of sums paid without legal cause as, under Article 84 of the Constitution, only the ordinary courts were empowered to determine civil rights. Moreover, the Government continued, even if an application to the ordinary courts had been possible, no decision could have been given in Procola's favour, since the association as such had never had a legally enforceable claim.  The application could not have led to either repayment of the additional levies to Procola or the award of any compensation as, under the system adopted by Luxembourg, the levy, although imposed on the purchaser, was passed on by the latter only to those producers who had exceeded their quota (see paragraph 18 above). In short, the proceedings could not have had any result affecting the applicant's financial position.

35.   The applicant association argued that unless the ministerial orders were quashed it could not seek damages in the civil courts; and only the Conseil d'Etat could quash them.  The proceedings in the Conseil d'Etat were thus decisive for a civil right, namely the right to repayment of the fine for overproduction.  Procola asserted that under the Formula B system chosen by  it was the party with which the State had to have legal relations and conduct financial dealings in the event of overproduction.  This was evidenced by the fact that the State had brought proceedings against the association to secure payment of the fine each time the reference quantity had been exceeded.

36.   The Commission took the view that the application to the Conseil d'Etat had been lodged in connection with a public-law dispute which did not concern a private right of the applicant association.  Its real purpose was to secure a review in the abstract of the lawfulness of measures taken by the public authorities.

37.   The Court notes that before the Judicial Committee the parties took opposite views on the question whether the ministerial orders fixing milk quantities could be given retrospective effect.  Procola maintained that for the years from 1984 to 1987 no levy was payable, since the previous rules had been set aside and it was impossible to make the orders retrospective, whereas the Delegate of the State maintained that the orders were lawful.  The applicant association's case was sufficiently tenable, since the Conseil d'Etat conducted a detailed examination of the conflicting arguments (see the Neves e Silva v. Portugal judgment of 27 April 1989, Series A no. 153-A, p. 14, para. 37, and the Editions Périscope v.  judgment of 26 March 1992, Series A no. 234-B, p. 65, para. 38).

Within the meaning of Article 6 (art. 6) of the Convention there was without any doubt a dispute concerning the determination of a right.

2. As to the civil nature of the right in issue

38.   The Court reiterates that Article 6 para. 1 (art. 6-1) is applicable where an action is "pecuniary" in nature and is founded on an alleged infringement of rights which are likewise pecuniary rights, notwithstanding the origin of the dispute and the fact that the administrative courts have jurisdiction (see, among other authorities, the Editions Périscope judgment, previously cited, p. 66, para. 40, and the Beaumartin v. France judgment of 24 November 1994, Series A no. 296-B, pp. 60-61, para. 28).

39.   In order to satisfy itself that the proceedings were decisive for a civil right, the Court considers it necessary to look at the proceedings as a whole.  Procola sought repayment of the fine for overproduction of 4.5 million Luxembourg francs (LUF); the association argued that it had paid this sum wrongly, on the ground that its members had produced the milk during a period when there was a legal vacuum and the Luxembourg Government were not entitled to hold them to account for overproduction.

Admittedly, the application to the Conseil d'Etat could only result in the annulment of the impugned orders, but that annulment would have enabled the applicant association to bring proceedings in the civil courts to recover the sum it considered to have been wrongly paid.  By lodging the application, Procola were using the only means at their disposal - an indirect one - of attempting to obtain reimbursement of the additional levies.

Having regard to the close connection between the proceedings brought by Procola and the consequences that their outcome might have had for one of its pecuniary rights, and for its economic activities in general, the right in question was a civil one (see the Editions Périscope judgment, previously cited, p. 66, para. 40; the Beaumartin judgment, previously cited, pp. 60-61, para. 28; the Ortenberg v. Austria judgment of 25 November 1994, Series A no. 295-B, pp. 48-49, para. 28; and, by implication, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, para. 43).

In any event, as the applicant pointed out, the Commission took the view in its decision on admissibility that the payment of an additional levy to the national authorities could be construed as a deprivation of possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1 (P1 1), and the right to peaceful enjoyment of one's possessions is undoubtedly a civil right.

40.   It follows that Article 6 para. 1 (art. 6-1) is applicable in the case.

B. Compliance with Article 6 para. 1 (art. 6-1)

41.   The applicant association pointed out that four of the five members sitting on the Judicial Committee when it ruled on Procola's application had previously sat on the advisory panel of the Conseil d'Etat which had given its opinion on the draft Grand-Ducal Regulation of 7 July 1987 and drafted a bill making that regulation retrospective. In view of the opinions they had previously expressed, particularly in the letter sent by the President of the Conseil d'Etat to the Prime Minister on 24 June 1987 (see paragraph 12 above), the members of the Judicial Committee could not have approached the question submitted to them, namely whether it was lawful to apply the ministerial orders of 21 September 1987 retrospectively, with a completely open mind.  In the instant case there was neither objective nor subjective impartiality.

42.   The Government observed that before the Commission Procola had cast doubt only on the Judicial Committee's objective impartiality. The complaint now raised about subjective impartiality, in support of which no fresh evidence had been adduced, should therefore be rejected as being new.  In the instant case, they continued, it was quite true that some members of the Judicial Committee had performed first an advisory function - having given an opinion on the Grand-Ducal Regulation of 7 July 1987 and suggested that the Government have the Act of 27 August 1987 enacted - and then a judicial function. Nevertheless, it would be incorrect to infer that the Conseil d'Etat was not in a position to give an impartial ruling on the application. In the  legal system the Judicial Committee was bound to dismiss an application directed against a statute, not because it had earlier given its opinion on the draft but because in such a situation it had no discretion to do otherwise.

43.   The Court considers that in the instant case it is not necessary to determine whether the Judicial Committee was an independent tribunal.  The applicant association did not put in doubt the method of appointing the Conseil d'Etat's members and the length of their terms of office or question that there were safeguards against extraneous pressure.

44.   The only issue to be determined is whether the Judicial Committee satisfied the impartiality requirement of Article 6 (art. 6) of the Convention, regard being had to the fact that four of its five members had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity.

45.   The Court notes that four members of the Conseil d'Etat carried out both advisory and judicial functions in the same case.  In the context of an institution such as 's Conseil d'Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution's structural impartiality.  In the instant case, Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question, and this makes it unnecessary for the Court to look into the other aspects of the complaint.

46.   It follows that there has been a breach of Article 6 para. 1 (art. 6-1).

II.   APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

47.   Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

A. Pecuniary damage

48.   Procola requested reimbursement of the LUF 4,456,453 fine for overproduction, increased by LUF 568,290 interest, that had been imposed on the association as a result of the retrospective application of the Regulation of 7 July 1987.  They argued that, logically, the association should not have had to pay any fine in respect of the years preceding the regulation's entry into force.

49.   The Government said that only Procola's individual members could claim to have sustained damage.  They further submitted that the amount in issue should be LUF 4,456,453, since the sum representing interest had not been collected.

50.   The Delegate of the Commission expressed the view that it was difficult to speculate as to what the outcome of the dispute would have been if the Judicial Committee had been constituted so as to afford all the safeguards of an independent and impartial tribunal.

51.   The Court likewise does not perceive any causal link between the breach of Article 6 para. 1 (art. 6-1) and the dismissal of Procola's application by the Conseil d'Etat.  It therefore disallows the claim.

B. Costs and expenses

52.   The applicant association, the Government and the Delegate of the Commission left this matter to the Court's discretion.  However, the applicant association suggested that, in view of the complexity of the case, the costs could be assessed at between 5 and 10% of the sum at stake in the proceedings, that is to say between LUF 250,000 and LUF 500,000.

53.   Making an assessment on an equitable basis, as required by Article 50 (art. 50), and in the light of the relevant criteria, the Court awards Procola LUF 350,000.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.   Holds that Article 6 para. 1 (art. 6-1) of the Convention is applicable in this case;

2.   Holds that there has been a breach of Article 6 para. 1 (art. 6-1) of the Convention;

3.   Holds that the respondent State is to pay the applicant association, within three months, 350,000 (three hundred and fifty thousand)  francs for costs and expenses;

4.   Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, , on 28 September 1995.


PROCEDURE

1.  The case originated in an application (no. 32783/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr László Kalmár (“the applicant”), on 16 August 2003.

2.  The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.

3.  On 15 September 2005 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

4.  The applicant was born in 1960 and lives in .

A.  Civil proceedings

5.  On 23 January 1996 the applicant brought an action in the Budapest Regional Court against the Budapest VII District Municipality, requesting it to find that his personality rights had been infringed by certain employees of the Municipality who had made allegedly untrue statements about him in the press.

6.  On 26 January 1996 the  transferred the case to the Pest Central District Court. On 10 October 1996 the applicant extended his action and, on 20 November 1996, he identified further respondents. On 10 January 1997 the District Court requested another court to make available to it the case file of a related case. After the latter had been terminated, the file was sent to the District Court on 22 September 1998.

7.  The District Court held hearings on 26 April 1999, 2 February, 14 June and 29 November 2000 and 24 June 2002.

8.  On 30 June 2003 the court invited the applicant to recapitulate his action.

9.  The hearings scheduled for 2 September and 7 December 2004 were adjourned. Meanwhile, on 6 October 2004 the  dismissed the applicant’s motion for bias, filed on 8 October 2003.

10.  Further hearings were held on 22 March, 27 June and 3 November 2005. The proceedings are still pending at first instance.

B.  Criminal proceedings

11.  On 25 January 1994 a preliminary investigation was opened against the applicant. He was charged with causing unlawful damage (rongálás). He was also prosecuted for making a false accusation (hamis vád) and attempted subornation to perjury (hamis tanúzásra felhívás kísérlete). On 20 July 1994 and 19 September 1995, respectively, bills of indictment were preferred. In another case of false accusation, a bill of indictment was preferred on 21 December 1995. The applicant was entitled to copies of the bills of indictment under section 146(6) of the (Old) Code of Criminal Procedure.

12.  The Pest Central District Court held hearings on 16 October 1995, 4 January and 20 March 1996. By decisions of 28 February and 21 June 1996, it joined all three cases.

13.  Following a procedural dispute essentially concerning bias on the part of certain judges involved in the case, which started on 19 November 1997, the Supreme Court eventually assigned the case to the Buda Surroundings District Court on 1 March 1999.

14.  On 28 July 1999 a further bill of indictment was preferred against the applicant in yet another case concerning 11 counts of false accusation. On 27 January 2000 these proceedings were joined to the existing ones.

15.  The District Court held hearings on 20 April, 28 August and 17 November 2000, at which apparently only procedural steps were taken. After a hearing on 25 January 2001, at which five witnesses were interrogated, on 31 January 2001 the court acquitted the applicant of all charges save that of subornation to perjury, in respect of which it issued a reprimand. Although one witness, Mr M., whose testimony might have been relevant to this offence, could not be found and three further witnesses summoned had not appeared, the court was satisfied that the applicant’s guilt was proven beyond reasonable doubt by Mr M.’s testimony given during the investigation and by the letters in which the applicant had made the incriminated statement.

16.  On appeal by the prosecution, on 27 November 2001 the  partly amended the first-instance judgment and convicted the applicant of one count of false accusation (an offence punishable by imprisonment of up to three years) and one count of subornation to perjury. As a cumulative sanction, it sentenced him to a fine of 30,000 Hungarian forints. In the reasoning, it was specified that:

“[...A]s another mitigating factor, the second-instance court also appreciated the very significant lapse of time [since the commission of the offences] ...”

17.  In reply to the applicant’s petition for review, on 12 June 2003 the Supreme Court reviewed the case and upheld the second instance judgment. In a detailed, lengthy analysis of the merits, it concluded that the applicant’s conviction had been justified.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE CIVIL PROCEEDINGS

18.  The applicant complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

19.  The Government contested that argument.

20.  The period to be taken into consideration began on 23 January 1996 and has not yet ended. It has thus lasted over ten years and seven months for one level of jurisdiction.

A.  Admissibility

21.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

22.  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 applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

23.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see Frydlender, cited above).

24.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. Having regard to its jurisprudence on the subject, the Court considers that the length of the proceedings in the instant case was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

25.  The applicant also complained that the criminal proceedings against him had lasted an unreasonably long time.

26.  The Government argued that the applicant could not claim to be a victim of a violation of his Convention rights in this respect, since the Regional Court had expressly acknowledged that the proceedings had been unusually long and, consequently, had provided redress by substantially reducing the applicant’s sentence. In any event, the authorities had displayed the requisite diligence in handling the case, complicated on account of the quadruple joinder. The applicant contested these views.

27.  The Court notes that the  took account of the considerable lapse of time from the commission of the offences for which the applicant was convicted, and that this was one of the reasons for applying a lighter, cumulative sentence than the statutory minimum sanction for one of the offences alone. Against this background, the Court finds that the applicant obtained adequate redress for the alleged violation of his right under Article 6 § 1 of the Convention to the determination within a reasonable time of the criminal charges against him. Accordingly, he can no longer claim to be a victim, for the purposes of Article 34, of a violation of Article 6 § 1 in this respect. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention (see Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003-XI; Lie and Bernsten (dec.), no. 25130/94; Tamás Kovács v. Hungary, no. 67660/01, § 26, 28 September 2004).

28.  The applicant also complained about the decisions given. In particular, he submitted that his conviction had been unfounded, because the courts had only heard a fraction of the relevant testimony, that he had learnt about the charge of subornation to perjury only at the hearing of 20 April 2000, and that this charge had been upheld by the courts without hearing any witnesses. He relied on Article 6 §§ 1 and 3. The latter paragraph provides as relevant:

“Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence; ...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

29.  As regards the fairness of the criminal proceedings, in so far as the applicant’s complaints may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, 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, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999I).

30.  In the present case, there is nothing in the case file indicating that the courts lacked impartiality or that the proceedings were otherwise unfair. In particular, the Court notes that the charge of subornation to perjury was contained in the bill of indictment filed on 19 September 1995, a copy of which the applicant had been entitled to. The applicant has not substantiated his claim that he was only informed of it in April 2000. Moreover, once convicted, the applicant had the possibility to challenge his conviction on this charge before the Regional and Supreme Courts, which both made a full review of the case. Furthermore, the Court reiterates that Article 6 cannot be interpreted as giving a defendant the right to have an infinite number of witnesses called. In the circumstances, it is satisfied that the fact that the courts heard some five witnesses and convicted the applicant of subornation to perjury, relying on clear documentary evidence, did not render the proceedings unfair as a whole. These complaints are therefore also to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

31.  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.”

A.  Damage

32.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

33.  The Government contested the claim.

34.  The Court considers that the applicant must have sustained some non-pecuniary damage and that it should award the full sum claimed.

B.  Costs and expenses

35.  The applicant also claimed EUR 100 for the costs and expenses incurred before the Court.

36.  The Government did not express an opinion on the matter.

37.  The Court considers that the sum claimed should be awarded in full.

C.  Default interest

38.  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 complaint concerning the excessive length of the civil proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage and EUR 100 (one hundred euros) in respect of costs and expenses, 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 unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 13910/04) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Andrey Anatolyevich Tarasov (“the applicant”), on 6 March 2004.

2.  The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the  at the European Court of Human Rights.

3.  On 22 February 2005 the Court decided to communicate the application 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.

THE FACTS

4.  The applicant was born in 1961 and lives in the town of  in the Moscow Region.

A.  Proceedings for provision of housing

5.  On 17 June 2002 the  allowed the applicant's claim against the Dubna Town Administration for provision of housing. The  ordered that the administration:

“...provide Mr Tarasov, whose family comprises three members, with a separate well-equipped flat having a living surface of no less than 61 square metres on the basis of a special tenancy agreement...”.

6.  The judgment was upheld on appeal on 12 August 2002 by the .

7.  Enforcement proceedings were opened. However, the judgment could not be enforced because the town administration possessed no available housing or financial resources to purchase a flat.

8.  On 24 February 2005 the Dubna Town Administration signed a contract with the applicant. According to the contract, the administration was to provide the applicant with a flat in 2005.

9.  On 25 February 2005, upon the applicant's request, the  discontinued the enforcement proceedings.

10.  In August 2005 the Dubna Town Administration bought a three-room flat for the applicant. It appears that in September 2005 the applicant moved into the flat.

B.  Proceedings concerning the method of enforcement of the judgment of 17 June 2002

11.  In February 2003 the applicant requested a court to amend the method of enforcement of the judgment of 17 June 2002 and to order that the Dubna Town Administration should pay him the value of a flat.

12.  On 26 February 2003 the  dismissed the applicant's claim. That judgment was quashed on appeal on 2 April 2003 and the case was remitted for a fresh examination.

13.  On 26 June and 18 September 2003 the  allowed the claim. Both judgements were quashed on appeal and the matter was remitted for re-examination.

14.  On 10 March 2004 the  dismissed the applicant's claim. The judgment became final on 22 June 2004.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a]... tribunal...”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”

A.  Admissibility

B.  Merits

20.  The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see Malinovskiy v. , no. 41302/02, § 35 et seq., ECHR 2005; Teteriny v. Russia, no. 11931/03, § 41 et seq., 9 June 2005; Gizzatova v. Russia, no. 5124/03, § 19 et seq., 13 January 2005; Burdov, cited above, § 34 et seq., ECHR 2002III).

22.   The Court finds that by failing for years to comply with the enforceable judgment in the applicant's favour the domestic authorities impaired the essence of his right to a court and prevented him from receiving a flat he could reasonably have expected to receive.

23.  There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

24.  The applicant furthermore complained under Articles 6 and 8 of the Convention that the proceedings concerning the method of enforcement of the judgment of 17 June 2002 had been unfair and excessively long and that for more than three years he had not been able to live in a flat awarded by the judgment of 17 June 2002. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court's competence ratione materiae, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  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.”

A.  Damage

26.  The applicant claimed 23,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

27.  The Government contested the claim as excessive and unsubstantiated.

28.  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 applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,400 under that head, plus any tax that may be chargeable.

B.  Costs and expenses

29.  The applicant also claimed EUR 11,100 for the costs and expenses incurred before the domestic courts and in the  proceedings. Those included EUR 10,800 in respect of legal fees paid to a lawyer and EUR 300 for postal expenses.

30.  The Government did not comment.

31.  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 information in its possession and the above criteria, the Court rejects the claim for legal expenses as the applicant was not represented by a lawyer in the domestic or  proceedings. As regards the remainder of the applicant's claims, the Court accepts that the applicant incurred postal expenses. It however considers the amount claimed to be excessive. Having regard to the elements at its disposal, the Court awards the applicant EUR 30 for the costs related to the proceedings before the Court, plus any tax that may be chargeable.

C.  Default interest

32.  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 complaint concerning non-enforcement of the judgment of 17 June 2002, as upheld on appeal on 12 August 2002, admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of prolonged non-enforcement of the judgment of 17 June 2002, as upheld on appeal on 12 August 2002;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of the settlement:

(i) EUR 2,400 (two thousand and four hundred euros) in respect of non-pecuniary damage;

(ii) EUR 30 (thirty euros) in respect of costs and expenses;

(iii) any tax that may be chargeable on the above amounts;

(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 applicant's claim for just satisfaction.

Done in English, and notified in writing on 28 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

12.  The case originated in an application (no. 34454/97) against Italy lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Fabrizia Fleres (“the applicant”), on 5 October 1996.

3.  The applicant was represented by Mr M. Albanesi Ginammi, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their co-Agent, Mr V. Esposito.

4.  The applicant complained under Article 1 of Protocol No. 1 that she had been unable to recover possession of her flat within a reasonable time. Invoking Article 6 § 1 of the Convention, she further complained about the length of the eviction proceedings.

5.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

6.  The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr. V. Zagrebelsky, the judge elected in respect of Italy, withdrew from sitting in the case (Rule 28). The Government appointed Mr. G. Raimondi as ad hoc judge to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 2).

7.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

8.  The applicant was born in 1959 and lives in Rome.

9.  The applicant is the owner of an apartment in Rome, which she had let to G.S.

10.  In a registered letter of 2 November 1983, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date.

11.  In a writ served on the tenant on 11 December 1984, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

12.  By a decision of 6 February 1985, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 10 January 1986.

13.  On 19 December 1986, the applicant served notice on the tenant requiring him to vacate the premises.

14.  On 27 January 1987, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 13 March 1987.

15.  Between 13 March 1987 and 27 January 1989, the bailiff made twelve attempts to recover possession.

16.  On 12 May 1989, the applicant made a statutory declaration that she urgently required the premises as accommodation for her family.

17.  Between 19 May 1989 and 14 July 1999, the bailiff made sixty-three attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.

18.  On 25 February 2000, the tenant vacated the premises.

II.  RELEVANT DOMESTIC LAW

19.  	The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION

20.  The applicant complained that she had been unable to recover possession of her flat within a reasonable time owing to the lack of police assistance. She alleged a violation of Article 1 of Protocol No. 1 to the Convention, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

21.  The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court has on several previous occasions decided cases raising similar issues as in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-66; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-47).

The Court has examined the present case and finds that there are no facts or arguments from the Government, which would lead to any different conclusion in this case. The Court refers to its detailed reasons in the judgments cited above and notes that in this case the applicant had to wait for thirteen years before recuperating the flat.

Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  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.”

A.  Pecuniary damage

23.  The applicant sought reparation for the pecuniary damage she had sustained, which she put at 168,000,000 Italian lire (ITL) [86,764.76 euros (EUR)], being the loss of rent for the period from 10 January 1986 (the date when the premises had to be vacated, as established by the decision of the Rome Magistrate of 6 February 1985) to 25 February 2000, ITL 60,000,000 [EUR 30,987.41] for renovation works in the flat after possession was recovered and ITL 3,334,100 [EUR 1,721.92] for the costs of executing the possession order.

24.  The Government stressed that the amount claimed by the applicant was excessive. As regards the costs incurred for the domestic proceedings, the Government argued that the costs of the proceedings on the merits and the ones for renovation works in the flat after possession, were not related to the alleged violations.

25.  The Court considers that the applicant must be awarded compensation for the pecuniary damage resulting from the loss of rent (see Immobiliare Saffi cited above, § 79), on the basis of the reimbursement of the difference between the global amount of the rents she could have endorsed and the rents she effectively collected. Having regard to the means of calculation proposed by the applicant, the Court, in the light of the evidence before it and the period concerned decides to award her on an equitable basis EUR 60,000.

As regards the costs of the enforcement proceedings, the Court considers that they must be reimbursed in part (see the Scollo v. Italy judgment of 28 September 1995, Series A no. 315-C, p. 56, § 50). Having regard to the means of calculation proposed by the applicant, the Court decides to grant the amount of EUR 1,600.

As regards the costs for the renovation works in the flat after possession was recovered, the Court considers that they are not related to the alleged violations. Therefore the Court rejects the applicant's claim.

The Court awards a total sum of EUR 61,600 for pecuniary damage.

B.  Non-pecuniary damage

26.  The applicant left the matter to be assessed by the Court in an equitable manner.

27.  The Government submitted that a finding of a violation would in itself constitute sufficient just satisfaction.

28.  The Court considers that the applicant must have sustained some non-pecuniary damage which the mere finding of a violation cannot adequately compensate. Therefore, the Court decides, on an equitable basis, to award EUR 10,000 under this head.

C.  Legal costs

29.  The applicant sought reimbursement of her legal costs, which she put at a sum superior to ITL 12,240,000 [EUR 6,321.43] globally for her costs and expenses before the national courts and for her costs and expenses before the Commission and the Court.

30.  The Government left the matter to the discretion of the Court.

31.  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 (see the case Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V). In the present case, on the basis of the information in its possession and the above-mentioned criteria, the Court considers that EUR 2,500 is a reasonable sum and awards the applicant that amount.

D.  Default interest

32.  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.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:

(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 applicant's claims for just satisfaction.

Done in English and notified in writing on 19 December 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.