TOTH v. SLOVAKIA - 35361/17 (Judgment : Right to a fair trial : Third Section Committee) [2020] ECHR 716 (13 October 2020)

JUDGMENT STRASBOURG 13 October 2020 This judgment is final but it may be subject to editorial revision. In the case of Tóth v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Dmitry Dedov, President, Alena Poláčková, Gilberto Felici, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no. 35361/17 ) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr František Tóth (“the applicant”), on 9 May 2017; the decision to give notice of the application to the Slovak Government (“the Government”); the parties’ observations; the decision to reject the Government’s objection to examination of the application by a Committee; Having deliberated in private on 22 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The applicant mainly complained that the quashing, upon an extraordinary appeal on points of law lodged by the Prosecutor General, of a final and binding judgment in his favour had been contrary to his rights under Article 6 § 1 of the Convention. He also raised a complaint under Article 1 of Protocol No. 1. THE FACTS 2. The applicant was born in 1956 and lives in Ž ilina. He was represented by Ms T. Polkov á , a lawyer practising in Žilina. 3. The Government were represented by their co-agent Ms M. Bálintová . 4. The facts of the case, as submitted by the parties, may be summarised as follows. I. THE CIRCUMSTANCES OF THE CASE A. The applicant’s claim for damages and the ensuing proceedings 5. On 21 October 2005 the applicant sued the Slovak Republic, represented by the Ministry of Justice (“the State”), under the State Liability Act (Law no. 58/1969 Coll. - Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom ). He sought compensation for damage and loss of profit suffered as a result of a criminal investigation carried out in respect of him from 1994 to 2004, in the course of which some of his fundamental rights and freedoms had allegedly been violated (and part of which he had spent in detention on remand). In particular, he claimed compensation for the following: (1) the costs of his defence incurred in the course of the criminal proceedings; (2) the loss of profit suffered by him as an entrepreneur and (3) as a shareholder in a company; (4) the loss of profit resulting from a failed property sale; and (5) non-pecuniary damage. The State raised an objection of statutory limitation, among other arguments. 6. In 2008 courts at two levels of jurisdiction allowed the State’s objection and dismissed the majority of the applicant’s claim (points (1)‑(4)). They applied Article 23 of the State Liability Act, ruling that the one-year statutory time-limit for lodging a claim for damages on account of unlawful detention had lapsed and therefore the claim was time-barred. 7. By a judgment issued on 25 November 2008 further to a constitutional complaint by the applicant, the Constitutional Court found a violation of his fundamental rights to property and to a fair trial and quashed the judgment of the appellate court (III. ÚS 339/08). It established that the applicant had not sought damages for unlawful detention on remand ( z titulu nezákonného rozhodnutia o väzbe ) but rather for unlawful criminal charges ( z titulu nezákonného uznesenia o vznesení obvinenia ); that being the case, the courts should have applied Article 22 of the State Liability Act, under which a three-year statutory time-limit was applicable, which the applicant had observed. The case was eventually remitted to the court of first instance. The State did not submit any additional observations. 8. On 11 February 2010 the Banská Bystrica District Court (“the District Court”) allowed the applicant’s original claim in part and ordered the State to pay him 985.03 euros (EUR) in respect of the costs of his defence and EUR 947,705.84 in respect of lost profits. Relying on the Constitutional Court’s conclusions, it found that the applicant had claimed damages for unlawful criminal charges for which the statutory time-limit of three years had been observed (point (1)). As to the scope of the applicant’s claim for lost profits, the District Court ruled, inter alia , that the applicant was entitled to damages from the time when the criminal charges had been brought until the time his business licence had expired (point (2)); for the entire duration of the criminal proceedings in respect of the company’s lost profits (point (3)); for the failed property sale because he had objectively not been able to carry out a contractual transfer of that property while in detention on remand and while the property itself had been temporarily seized by the authorities (the causal link being that the charges had eventually been dropped and the criminal investigation discontinued). 9. The State lodged an appeal, challenging the parts of the judgment concerning the lost profits and the costs of the proceedings. It argued that a potential sale of the property could not be ruled out, perhaps even for a higher amount than that claimed by the applicant in damages, and as such no damage could be established. 10. On 20 May 2010 the Banská Bystrica Regional Court (“the Regional Court”) upheld the judgment of the District Court, fully endorsing its reasoning. It added that although the State’s objection as expressed in its appeal was relevant, it would not have had an impact on the outcome of the case because the applicant had suffered a loss of profit owing to the fact that his legitimate expectation of obtaining financial gain could not be realised during the relevant period. The judgment became final on 15 June 2010. Following the State’s failure to ensure timely payment of the relevant sum, the applicant sued it for late-payment interest (see paragraph 22 below). B. First extraordinary review by the Supreme Court 11. The State sought a remedy through the Prosecutor General, who lodged an extraordinary appeal on points of law ( mimoriadne dovolanie ) on its behalf. The Prosecutor General argued, under Article 243f(1)(c) of the Code of Civil Procedure (Law no. 99/1963 Coll.), that the lower courts had incorrectly assessed the relevant points of law. He asserted that (i) part of the applicant’s claim had been time-barred, as the damage suffered had been directly linked to his detention on remand; (ii) the lower courts’ judgments had lacked an adequate explanation of the causal link between the criminal investigation in respect of the applicant and the economic loss incurred by the company in which he had shares; and (iii) the lower courts had incorrectly determined the damage incurred by the applicant as an entrepreneur, as well as that suffered as a result of the failed property sale. The Prosecutor General submitted that the protection of the rights and interests of the State required the bringing of an extraordinary appeal, and could not be achieved by other legal means. He thus requested the Supreme Court to quash the relevant parts of the judgments of the lower courts and to remit the case to them for a fresh examination. In his observations, the applicant contested the arguments put forward by the Prosecutor General and asked the Supreme Court to dismiss the extraordinary appeal. The State did not submit any observations. 12. On 29 October 2012 the Supreme Court adopted its judgment (5 M Cdo 1/2011) allowing the part of the Prosecutor General’s extraordinary appeal concerning the company’s lost profits (point (3) of the original claim). That part of the lower courts’ judgments was quashed and the case was remitted to the District Court. The Supreme Court, however, dismissed the remaining part of the Prosecutor General’s extraordinary appeal (points (1), (2) and (4) of the original claim). After the judgment became final on 9 November 2012, the State paid the applicant EUR 830,915.08. The money was later claimed back on the basis of unjust enrichment following subsequent events (see paragraph 23 below). 13. Upon a fresh examination of point (3) of the applicant’s claim, the courts at two levels of jurisdiction decided to grant it, although in a slightly decreased amount (14C 359/2012). The Supreme Court rejected the State’s subsequent appeal on points of law and the latter eventually paid the applicant the relevant sum in the course of enforcement proceedings. C. The State’s constitutional complaint against the Supreme Court’s judgment of 29 October 2012 14. Following the Supreme Court’s judgment of 29 October 2012, the State (“the complainant”) lodged a constitutional complaint challenging the part of the Supreme Court’s judgment in which it had dismissed the Prosecutor General’s extraordinary appeal (points (1), (2) and (4) of the original claim). It asked the Constitutional Court to declare that there had been a violation of its right to a fair trial and its right to property, arguing that (i) even if the applicant’s claim for damages was to be examined under Article 22 of the State Liability Act (instead of Article 23 thereof), the lower courts had not addressed its objection of statutory limitation sufficiently, in particular in respect of its objective limb ( ob jektívna premlčacia lehota ); and (ii) they had failed to assess the causal link between the unlawful criminal charges and the damage suffered. 15. The Constitutional Court requested observations from the Supreme Court and subsequently from the complainant in reply. By a judgment of 13 November 2013 it declared that there had been a violation of the State’s right to a fair trial and quashed the impugned part of the Supreme Court’s judgment (II. ÚS 163/2013). It found that the Supreme Court had failed to properly examine the scope of the applicant’s claim for damages, including the relevant considerations about the objective limb concerning statutory limitation, criticising it for having merely referred to the Constitutional Court’s previous judgment (III. Ú S 339/08). It held that, in the light of the existence of a specific legal framework concerning compensation claims stemming from unlawful detention, the ordinary courts should not have included those claims within the overall calculation of damages because the applicant had not submitted any arguments in that connection. The Constitutional Court ruled that the Supreme Court had also failed to sufficiently address the arguments about the lack of a causal link between the criminal investigation and the damage suffered, including the loss of profits from the failed property sale. In the Constitutional Court’s view, all of the above had rendered the Supreme Court’s judgment arbitrary and insufficiently reasoned; therefore, it was necessary to quash it and remit the relevant part of the case to it for a fresh examination. The applicant did not participate in the proceedings before the Constitutional Court despite his repeated requests to be served with a copy of the State’s constitutional complaint in order to submit observations on it (letters of 15 March, 28 May, 1 July, 22 July and 30 September 2013). In a letter of 28 June 2013, the Constitutional Court informed the applicant that he was not a party to the proceedings, nor was he entitled to join them as a third party, and that he had not demonstrated that there were serious reasons for him to be allowed to consult the case file. On 18 December 2015, at his own request, the applicant was served with the Constitutional Court’s judgment of 13 November 2013. D. Second extraordinary review by the Supreme Court 16. Following the Constitutional Court’s judgment, the Supreme Court was again tasked with the examination of the Prosecutor General’s extraordinary appeal, this time exclusively in relation to points (1), (2) and (4) of the applicant’s original claim. 17. By letters of 20 July, 5 August and 21 August 2015, the applicant filed additional observations with the Supreme Court. He referred to the Constitutional Court’s unifying opinion of 18 March 2015 (PLz. ÚS 3/2015) and the European Court’s case-law in the cases of DRAFT - OVA a.s. v. Slovakia (no. 72493/10 , 9 June 2015), PSMA, spol. s.r.o. v. Slovakia (no. 42533/11, 9 June 2015) and COMPCAR, s.r.o. v. Slovakia (no. 25132/13 , 9 June 2015), arguing that the State had not exhausted all available remedies because it had failed to lodge its own appeal on points of law. He also complained that he had not participated in the proceedings initiated by the State before the Constitutional Court. 18. On 10 September 2015 the Supreme Court decided to quash the impugned parts of the lower courts’ judgments and to remit the case for a fresh examination (5 M Cdo 15/2014). It held that it was bound by the Constitutional Court’s legal conclusions and that the defects identified by that court in its judgment of 13 November 2013 likewise concerned the lower courts’ judgments. It noted that it was aware of the Constitutional Court’s unifying opinion of 18 March 2015, as well as of the case-law of the Court cited by the applicant. The decision was served on the applicant’s lawyer on 17 September 2015. The further course of the proceedings before the ordinary courts is described in paragraph 24 below. E. The applicant’s constitutional complaint 19. The applicant lodged a constitutional complaint challenging the Supreme Court’s decision of 10 September 2015. Invoking Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, as well as their constitutional equivalents, he argued that the quashing by the Supreme Court of the final judgment in his favour, after more than five years and following an extraordinary appeal on points of law lodged by the Prosecutor General, was contrary to the principles of equality of arms, legal certainty and impartiality of a tribunal. He pointed out that the State had not lodged an appeal on points of law and therefore had not exhausted all available remedies. He also complained that he had not been allowed to participate in the proceedings before the Constitutional Court preceding the Supreme Court’s impugned decision. His complaint was declared admissible on 2 February 2016 and assigned to the Constitutional Court’s third chamber. 20. On 12 April 2016 the applicant raised an objection of bias with regard to one of the members of the chamber under Article 28(1) of the Constitutional Court Act (Law. No. 38/1993 Coll.), arguing that the same judge had sat on the bench in case no. II. ÚS 163/2013, in which his procedural rights had been violated (because he had not been able to participate in them). On 11 May 2016 a different chamber of the Constitutional Court ruled that his objection was unfounded, the judge in question having declared that he did not know the applicant or his lawyer, that he did not have any personal relationship with any of the parties to the proceedings or any interest in the case and that he did not remember the case in view of the three years that had passed since then (I. ÚS 319/2016). 21. On 7 July 2016 the Constitutional Court found no violation of the applicant’s fundamental rights and freedoms (III. ÚS 51/2016). It ruled that the State had not had the possibility of lodging an appeal on points of law itself, that the quashing of a final judgment by the Supreme Court had been justified in order to rectify a fundamental error committed in the proceedings before the lower courts and that the Supreme Court had provided clear and adequate reasons for doing so. The Constitutional Court made reference to its previous findings which had identified serious defects in the lower courts’ judgments. The decision was served on the applicant’s lawyer on 9 November 2016. F. Further course of the proceedings and other related proceedings 22. After the Regional Court’s judgment of 20 May 2010 had become final (see paragraph 10 above) and in the absence of the State’s timely payment of the sum awarded, the applicant claimed late-payment interest (20C 225/2011). On 21 February 2013 the District Court partly allowed that claim and ordered the State to pay the applicant 8.5% annual interest on the amount of EUR 830,917.35 for the period from 15 February 2008 to 21 December 2012. The Regional Court upheld that judgment on 14 May 2014. After the Supreme Court’s judgment of 10 September 2015, the State lodged an application to have the proceedings reopened and the District Court allowed it. The proceedings are currently stayed until the completion of the main proceedings (see paragraph 24 below). 23. On the basis of the Supreme Court’s judgment of 29 October 2012 (see paragraph 12 above), the State paid the applicant EUR 830,915.08. After the second judgment of the Supreme Court of 10 September 2015, the State requested the money back from the applicant and, following his refusal, sued him for unjust enrichment (41C 75/2017). Those proceedings are currently stayed until the completion of the main proceedings (see paragraph 24 below). 24. Following the quashing of the judgments of 11 February and 20 May 2010 by the Supreme Court on 10 September 2015 (see paragraph 18 above), the relevant part of the case was remitted to the District Court for a fresh examination (16C 351/2015). The proceedings were stayed, at the applicant’s request, until the Court’s decision on the application in the present case. 25. By a letter of 25 October 2018, the Ministry of Justice informed the applicant that it had unilaterally offset a part of its claim for unjust enrichment against some of his own claims vis-à-vis the State. The applicant challenged the unilateral offsetting before the Bratislava I. District Court (8C/32/2018). II. RELEVANT LEGAL FRAMEWORK AND PRACTICE 26. The relevant domestic law and practice and European texts have been summarised in the Court’s judgments in, inter alia , DRAFT - OVA a.s. v. Slovakia (no. 72493/10 , §§ 39-56 and 58-61, 9 June 2015, with further references), PSMA, spol. s.r.o. v. Slovakia (no. 42533/11 , §§ 35-54, 9 June 2015), COMPCAR, s.r.o. v. Slovakia (no. 25132/13 , §§ 22-42, 9 June 2015) and, most recently, Bosits v. Slovakia [Committee] (no. 75041/17 , §§ 17-20, 19 May 2020) and REDQUEST LIMITED v. Slovakia [Committee] (no. 2749/17 , §§ 19-20, 19 May 2020). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27. The applicant raised three issues concerning the alleged unfairness of his trial. Firstly, he complained that he had been deprived of his right to participate in the proceedings before the Constitutional Court (judgment of 13 November 2013, II. ÚS 163/2013) owing to the latter’s refusal to serve him with a copy of the State’s constitutional complaint and to allow him to defend his interests in those proceedings. Secondly, he challenged the impartiality of a judge of the Constitutional Court in the proceedings concerning his own constitutional complaint (judgment of 7 July 2016, III. ÚS 51/2016). Lastly, he argued that the quashing by the Supreme Court of a final judgment in his favour, after more than five years and following an extraordinary appeal on points of law lodged by the Prosecutor General, had not been justified. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” A. Admissibility 28. The Government submitted that in respect of the Constitutional Court’s judgment of 13 November 2013 (II. ÚS 163/2013), the application had been lodged out of time. They asserted that although the applicant had not been a party to those proceedings before the Constitutional Court, he had learned about the impact of the judgment in question on 17 September 2015, when the Supreme Court’s judgment of 10 September 2015 had been served on his lawyer, or at the latest on 18 December 2015, when the Constitutional Court’s judgment itself had been served on his lawyer. As the applicant had lodged his application with the Court on 9 May 2017, the six‑month time-limit had not been observed. 29. The applicant argued that the Constitutional Court’s judgment of 13 November 2013 had not been the final decision in the matter and that therefore he could not have lodged his application earlier. 30. The Court accepts the Government’s argument. The applicant learned of the Constitutional Court’s judgment of 13 November 2013 at the latest on 18 December 2015 and should have lodged his application within a period of six months from that date. Accordingly, this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 31. As for the applicant’s complaint concerning the alleged bias of a judge of the Constitutional Court in the proceedings concerning his own constitutional complaint, the Court notes that this complaint was duly addressed by the Constitutional Court itself, which provided sufficient and adequate reasoning for its conclusions (see paragraph 20 above). As such, 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. 32. The Court notes that the remaining part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 33. The parties agreed that the application concerned the decision on points (1), (2) and (4) of the applicant’s original claim. 34. The applicant submitted that in the circumstances of the present case the Prosecutor General’s extraordinary appeal had simply amounted to another appeal by the State in disguise. He asserted that all the arguments set out in that appeal had already been examined in the proceedings before the two levels of ordinary courts, and even before the Supreme Court, which had dismissed them in its decision of 29 October 2012 (see paragraph 12 above). 35. Relying on the domestic courts’ conclusions, the Government asserted, in particular, that an appeal on points of law lodged by the State would have been inadmissible and would not have offered the State an effective remedy. According to the Constitutional Court’s judgment of 13 November 2013, the Supreme Court’s decision of 29 October 2012 had been arbitrary and insufficiently reasoned (in the part dismissing the Prosecutor General’s extraordinary appeal). Subsequently, the Supreme Court, bound by the Constitutional Court’s conclusions, had found that they had likewise concerned the lower courts’ judgments and had consequently quashed those judgments. In its judgment of 7 July 2016, the Constitutional Court had considered the defects in the lower courts’ judgments - identified by it in its previous judgment - to constitute fundamental errors. 2. The Court’s assessment 36. In the light of the parties’ agreement on the content of the application (see paragraph 33 above), the Court will now examine their arguments with regard to the Supreme Court’s decision of 10 September 2015 by which the final judgment in the applicant’s favour was quashed. 37. The Court reiterates that for the sake of legal certainty implicitly required by Article 6 § 1 of the Convention, final judgments should generally be left intact. They may be disturbed only to correct fundamental defects, such as jurisdictional error, a serious breach of court procedure or abuses of power, which may justify the quashing (see Luchkina v. Russia , no. 3548/04 , § 21, 10 April 2008). Departures from the principle of legal certainty are thus justified only when made necessary by circumstances of a substantial and compelling character, the existence of which has to be examined on a case-by-case basis (see, for example, Tishkevich v. Russia , no. 2202/05 , §§ 25-26, 4 December 2008, and Sutyazhnik v. Russia , no. 8269/02 , § 35, 23 July 2009). The mere possibility of there being two views on the subject is not a ground for re-examination (see Ryabykh v. Russia , no. 52854/99 , §§ 51-52, ECHR 2003-IX). 38. In the present case, the final and binding judgment of the Regional Court of 20 May 2010 ordering the State to pay the applicant approximately EUR 830,000 was quashed more than five years after delivery as a result of the extraordinary appeal lodged by the Prosecutor General, who considered that there had been an incorrect assessment of the points of law, in that (i) part of the applicant’s claim had been time-barred; (ii) the lower courts’ judgments had lacked an adequate explanation of the causal link between the applicant’s criminal investigation and the economic loss incurred by the company in which he had shares; and (iii) the lower courts had incorrectly determined the damage incurred by the applicant as an entrepreneur, as well as that suffered as a result of the failed property sale. It follows from the Supreme Court’s reasoning that the defects identified by the Constitutional Court in its judgment of 13 November 2013 concerned the lower courts’ judgments and that therefore those judgments had to be quashed. The reasons for the quashing thus included the failure to examine the scope of the applicant’s claim for damages and the objective limb of the statutory limitation, and the failure to sufficiently address the arguments about the lack of a causal link between the criminal investigation and the damage suffered. 39. The Court is called upon to ascertain whether such interference with a final decision was compatible with the guarantees of Article 6 § 1 of the Convention, in particular with the principles of the rule of law and legal certainty inherent in that provision. In line with its case-law (see, for the applicable principles, DRAFT - OVA a.s. , cited above, §§ 77-78, with further references), the Court finds it appropriate to examine whether there has been any circumstance of a substantial and compelling character to justify a departure from the principle of legal certainty, according to which, where the courts have finally determined an issue, their ruling should not be called into question. 40. The Court is of the opinion that these issues pertain to the legal assessment of the matter and raise no more than ordinary questions of law, the resolution of which falls within common judicial activity, and not fundamental defects within the meaning of the Court’s case-law (cited in paragraph 37 above). It observes in this respect that the same legal questions addressed by the Supreme Court by way of granting the Prosecutor General’s extraordinary appeal lodged on behalf of the State (see paragraphs 5 in fine and 9) had been raised or could have been raised throughout the previous proceedings before the lower courts. In such circumstances, the Court considers that the extraordinary appeal should rather be seen as a further appeal or, in other words, an appeal in disguise within the meaning of the Court’s case-law (see, for example, Ryabykh , cited above, § 52). 41. In these circumstances, the Court sees no particular grounds for departing from the general premise that, in accordance with the principle of legal certainty, where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95 , § 61, ECHR 1999-VII). 42. There has accordingly been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 of Protocol n o . 1 43. The applicant complained that the State had sought to have the damages previously paid to him returned as a result of the decision on the Prosecutor General’s extraordinary appeal. He argued that should his original claim, as well as his claim for late-payment interest (both still pending before the ordinary courts), be dismissed, his right to the peaceful enjoyment of possessions would be violated. He relied on Article 1 of Protocol No. 1, the relevant part of which provides as follows: “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.” 44. The Government raised multiple objections to the admissibility as well as to the merits of the complaint. In his reply to the Government’s observations, the applicant submitted that it was the State’s claim for unjust enrichment pending before the Žilina District Court (41C 75/2017), as well as its allegedly unlawful unilateral offsetting of 25 October 2018 which he had challenged on 12 November 2018 in separate civil proceedings (see paragraph 25 above), that had interfered with his right to the peaceful enjoyment of his possessions. 45. The Court observes that unlike the applicants in the cases of DRAFT - OVA a.s. (cited above, § 87) and REDQUEST LIMITED (cited above, §§ 37 and 43) in which the Court found a violation of Article 1 of Protocol No. 1 as a direct result of the quashing of a final judgment in their favour, the applicant in the present case derives the alleged violation of his right to the peaceful enjoyment of his possessions from a hypothetical outcome of the civil proceedings in issue, be they the proceedings concerning his original claim for damages, his claim for late-payment interest or the State’s claim for unjust enrichment. He had every opportunity to argue, in particular in his reply to the Government’s observations, that his right to the peaceful enjoyment of his possessions had been violated by the Supreme Court’s decision to quash the final and enforceable judgment in his favour. This was likewise pointed out by the Government in their comments in reply to the applicant’s observations when they asserted that the proceedings concerning the State’s claim for unjust enrichment or its unilateral offsetting involved different issues. 46. These considerations leave the Court with no other choice than to declare the applicant’s complaint under Article 1 of Protocol No. 1 manifestly ill-founded and to reject it in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. 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 48. The applicant did not submit a claim in respect of pecuniary damage; accordingly, no award is appropriate in that respect. However, he claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 49. The Government contested the claim excessive. 50. The Court considers that the applicant must have sustained non‑pecuniary damage on account of the violation of Article 6 § 1 of the Convention. Making its assessment on an equitable basis, it awards him EUR 3,900 under that head, plus any tax that may be chargeable. B. Costs and expenses 51. The applicant also claimed EUR 6,591.99 for the legal costs incurred before the Court (EUR 6,286.11 in respect of lawyer’s fees and EUR 305.88 in respect of translation expenses). 52. The Government contested the claim, arguing that the applicant had failed to prove the payment of EUR 151.20 in respect of the translation of 6 November 2019 and that the lawyer’s fees were unreasonable. 53. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Denisov v. Ukraine [GC], no. 76639/11 , § 146, 25 September 2018). Furthermore, costs and expenses are only recoverable to the extent that they relate to the violation found (see Murray v. the Netherlands [GC], no. 10511/10 , § 134, ECHR 2016). 54. In this regard the Court notes that the applicant’s complaints were only partially successful. In such circumstances, the Court finds it appropriate to award the sum of EUR 3,000 in respect of costs and expenses, plus any tax that may be chargeable to the applicant. C. Default interest 55. The Court considers it appropriate that the default interest rate 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 under Article 6 § 1 of the Convention concerning the quashing of a final and binding judgment in the applicant’s favour 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, the following amounts: (i) EUR 3,900 (three thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Dmitry Dedov Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII