CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 11 février 2010

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sC9AE5FA8 { font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt }   115 11.02.2010   Press release issued by the Registrar   Chamber judgment [1] Leandro Da Silva v. Luxembourg (application no. 30273/07)     THE COURT ACKNOWLEDGES THE EXISTENCE OF AN EFFECTIVE DOMESTIC REMEDY TO BE USED PRIOR TO BRINGING LENGTH-OF-PROCEEDINGS COMPLAINTS BEFORE IT   Violation of Article 6 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights     Principal facts   The applicant, Mr Mario Jorge Leandro Da Silva, is a Portuguese national who was born in 1964 and lives in Mondorf-les-Bains (Luxembourg). While running a car dealership, he became involved in a substantial dispute with the administrative authorities over the building of a tunnel as an exit route from a supermarket, hindering access to his business. In June 2003 the applicant and his company sued the State and the district council for damages on account of maladministration. The ensuing proceedings lasted four years – for one level of jurisdiction – and the applicant was ultimately unsuccessful. During that period, the parties to the proceedings (the applicant on the one hand, and the State and the district council on the other) caused a large number of delays, in particular by taking a long time to reply to submissions by the opposing party, despite the fact that the judge had on several occasions laid down timetables for them to observe.     Complaints, procedure and composition of the Court   Relying on Article 6, Mr Leandro Da Silva complained that the length of the proceedings in his case had been excessive.   The application was lodged with the European Court of Human Rights on 10 July 2007.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President , Nina Vajić (Croatia), Khanlar Hajiyev (Azerbaijan), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), judges , and also Søren Nielsen , Section Registrar .     Decision of the Court   Admissibility of the application   By virtue of Article 35 § 1, the Court was able to examine a complaint only after it had been raised unsuccessfully at national level. However, it was also necessary for there to be an “effective remedy” that could be used for that purpose in the respondent State (where the complaint concerned the allegedly excessive length of judicial proceedings, the applicant had to have at least a compensatory remedy available at national level).   The Luxembourg Government had frequently asked the Court to declare length-of proceedings complaints inadmissible in previous cases on the ground that the applicants had not availed themselves of a compensatory remedy existing in Luxembourg law (section 1 of the State and Public Authorities Civil Liability Act of 1 September 1988). On each occasion the Court had held that, at the time when the applicants concerned had brought their case before it, the remedy in question had not acquired a sufficient degree of legal certainty to oblige applicants to use it; it had not been established that the remedy was effective not only in theory but also in practice.   The Government raised a similar objection in Mr Leandro Da Silva’s case, referring to developments in the relevant domestic case-law. In particular, they cited a judgment of 21 November 2007 in which the Court of Appeal had awarded 15,000 euros (EUR) to a company for a breach of the “reasonable time” requirement in Article 6 § 1.   The Court observed that that judgment confirmed that the State of Luxembourg could be held liable for a failure to conduct domestic proceedings within a reasonable time. Furthermore, the compensation awarded in the judgment cited by the Government bore a reasonable relationship to the amount the Court itself would have awarded in similar cases. The Court of Appeal judgment in question thus established the existence of a remedy that was “sufficiently certain not only in theory but also in practice” to enable and oblige an applicant to use it prior to bringing a length-of-proceedings complaint before the Court.   Seeing that the judgment of 21 November 2007 had been rapidly disseminated in legal circles, the Court considered that the remedy thus established had acquired a sufficient degree of legal certainty during the second quarter of 2008. It held that it could reasonably be assumed that the judgment had been public knowledge since 1 August 2008. Since that date, applicants wishing to complain to the Court about the length of judicial proceedings in Luxembourg should therefore have already made use of the remedy available to them at national level.   That requirement did not apply to Mr Leandro Da Silva, who had applied to the Court on 10 July 2007, well before 1 August 2008. His application was therefore admissible.   Whether there had been a violation of Article 6 § 1   On the merits, the Court observed firstly that the length of the proceedings had resulted mainly from the conduct of the various parties, namely Mr Leandro Da Silva, the State and the district council. Indeed, a significant portion of the delay was attributable to the applicant, who had taken one year and four months to reply to the opposing party’s submissions of 15 October 2003. The judicial authorities, meanwhile, had not caused any particular delays.   However, the Court reiterated that Article 6 § 1 required the Contracting States to organise their legal systems in such a way that their courts could meet each of the requirements of that provision, including the obligation to guarantee anyone the right to a final decision within a reasonable time. Despite the fact that the judge had laid down timetables on several occasions, the proceedings in the applicant’s case had lasted four years for a single level of jurisdiction, a period which could not be considered reasonable.   The Court held unanimously that there had been a violation of Article 6 § 1.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant EUR 2,800 for non-pecuniary damage.   *** The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.