FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42496/05 by Arnold TREIAL against Estonia

The European Court of Human Rights (Fifth Section), sitting on 18 March 2008 as a Chamber composed of:

Peer Lorenzen , President,

Snejana Botoucharova ,

Karel Jungwiert ,

Volodymyr Butkevych ,

Rait Maruste ,

Mark Villiger ,

Mirjana Lazarova Trajkovska , judges ,

and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 25 October 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the declaration submitted by the respondent Government on 4 January 2008 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Arnold Treial , is an Estonian national who was born in 1932 and lives in Ote pää . He was represented before the Court by Mr G. Tavits , a lawyer practising in Tartu . The Estonian Government (“the Government”) were represented by their Agent, Ms M. Hion , Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 24 May 1994 the applicant was taken into custody in connection with criminal proceedings instituted against him. He was released on 20 December 1994. On 15 May 1995 the criminal charges against him were dropped by the Public Prosecutor ’ s Office.

On 30 November 1995 the applicant brought a civil action against the authorities claiming damages for the loss of profit he would have made from his farming activities, had he not been unlawfully detained. The claim was initially filed with the Valga County Court ( maakohus ) but the Tartu Court of Appeal ( ringkonnakohus ) ordered that it be transferred to the Tartu City Court ( linnakohus ).

Subsequently, the applicant amended his claim on five occasions.

By a judgment of 2 May 1997 the Tartu City Court allowed in part the applicant ’ s lawsuit. The claim concerning the loss of profit was rejected.

On 27 January 1998 the Tartu Court of Appeal revoked the City Court ’ s judgment in part and remitted it to the lower court for a new consideration.

On 14 January 2000 Tartu County Court received new claims for damages against the authorities filed by the applicant. By a decision of 7 February 2000 the County Court terminated the proceedings in respect of the claims which had already been decided by final judgments.

By a judgment of 27 June 2000 the County Court upheld in part the claim concerning the loss of profit.

On 2 February 2001 the Court of Appeal quashed the lower court ’ s judgment in part and referred the case back for a new consideration.

On 20 June 2001 the Supreme Court ( Riigikohus ) upheld the Court of Appeal ’ s judgment.

By a judgment of 30 March 2004 the County Court upheld the claim in part. It awarded the applicant 52,724.87 kroons (EEK) (approximately corresponding to 3,370 euros (EUR)) as a compensation for the loss of profit from his farming activities.

On 4 February 2005 the Court of Appeal modified the lower court ’ s judgment in so far as the sum of compensation for the loss of profit was concerned. It set the sum payable to the applicant at EEK 56,058.50 (EUR 3,580). The court took into account, inter alia , the long delay in the payment of the compensation and increased the sum awarded to the applicant by 30 per cent to compensate for inflation.

On 8 June 2005 the Supreme Court refused the applicant leave to appeal.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the civil proceedings.

He also complained under Article 1 of Protocol No. 1 to the Convention, about the amount of the compensation he had been awarded by the domestic courts for the loss of profit from his farming activities.

THE LAW

A. Length of proceedings

The applicant complained about the length of the civil proceedings . He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

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

By letter dated 4 January 2008 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this part of the application.

The declaration provided as follows:

“1. The Government notes that the efforts with a view to securing a friendly settlement of the case have been unsuccessful.

2. In this situation, the Government would hereby like to express – by a way of unilateral declaration – its acknowledgement that in the special circumstances of the present case, the length of the domestic proceedings did not fulfil the requirement of ”reasonable time” referred to in Article 6 § 1 of the Convention.

3. Consequently, the Government is prepared to pay to the applicant the global sum of 2500 euros (two thousand five hundred euros ). In its view, this amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus a reasonable sum as to quantum in the present case in the light of the Court ’ s case law.

4. This sum is to cover any pecuniary and non-pecuniary damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable within three months from the date of the notification of the decision pursuant to Article 37 § 1 (c) of the Convention.

5. It is recalled that according to the case-law of the Court, it may be appropriate under certain circumstances to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued (for instance K. K. v Finland (striking out) application no 7779/04, decision of 27 November 2007).

6. It is also recalled that the Court has paid attention to the terms of the declaration made by the Government and in particular to a clear acknowledgement that the reasonable time requirement has not been respected within the meaning of Article 6 § 1 of the Convention and that the Court has had occasion to address complaints related to the alleged breach of one ’ s right to a hearing within a reasonable time in cases against the State in question (for instance K. K. v Finland (striking out) application no 7779/04, decision of 27 November 2007).

7. In the light of the above and in accordance with Article 37 § 1 (c) of the Convention the Government would like to suggest that the circumstances of the present case allow the Court to reach the conclusion that for “any other reason” it is no longer justified to continue the examination of the application.

8. Moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine , which would require the further examination of the case by virtue of that provision.

9. Therefore, the Government invites the Court to strike the application out of its list of cases.”

In a letter of 11 February 2008 the applicant expressed the view that there was no reason to strike the case out of the list of cases and requested that the examination of the case be continued.

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”.

It also recalls that in certain circumstances, it may strike out an application 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.

To this end, the Court will examine carefully 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).

The Court has established in a number of cases, including those brought against Estonia, its practice concerning complaints about the violation of one ’ s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ‑ ... .; Treial v. Estonia , no. 48129/99, 2 December 2003; and Saarekallas OÃœ v. Estonia , no. 11548/04, 8 November 2007).

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 the application (Article 37 § 1 (c)).

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 ).

Accordingly, it should be struck out of the list.

B. Complaint under Article 1 of Protocol No. 1 to the Convention

The applicant further complained about the amount of the compensation he had been awarded by the domestic courts for the loss of profit from his farming activities. He relied on Article 1 of Protocol No. 1 to the Convention which reads 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.

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.”

The Court reiterates that, according to its case-law, “possessions” within the meaning of Article 1 of Protocol No. 1 can be either “existing possessions” (see Van der Mussele v. Belgium , judgment of 23 November 1983, Series A no. 70, p. 23, § 48) or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised (see Pressos Compania Naviera S.A. and Others v. Belgium , judgment of 20 November 1995, Series A no. 332, p. 21, § 31). In order to hold that the claim constituted an “asset”, it should be deemed that it was sufficiently established to be enforceable (see, mutatis mutandis , Jasiūnienė v. Lithuania , no. 41510/98, § 44, 6 March 2003).

In the present case, the Court notes that the applicant ’ s complaint did not concern “existing property” but a claim for the loss of profit. However, the Court does not find it necessary to determine in this case whether the applicant ’ s claim was sufficiently established to attract the guarantees of Article 1 of Protocol No. 1. Even assuming that this was the case, the Court is satisfied that the requirements of this provision were met for the reasons below.

The Court emphasises in this context that it has only limited power to review compliance with domestic law (see, for example, HÃ¥kansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no. 171 ‑ A, p. 16, § 47) as it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Lukanov v. Bulgaria , judgment of 20 March 1997, Reports of Judgments and Decisions 1997 ‑ II, p. 543-44, § 41). Only if the interpretation by the domestic courts is arbitrary or manifestly wrong can it be set aside by the Court (see, for example, Bruncrona v. Finland , no. 41673/98, § 75, 16 November 2004).

Having regard to the material submitted by the parties, the Court considers that the domestic courts have thoroughly analysed and calculated the loss borne by the applicant. Moreover, the sum awarded to the applicant was increased by 30 per cent to compensate for inflation. The Court finds that there is no indication of arbitrariness or any manifest error in the domestic courts ’ judgments.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the applicant ’ s rights set out in Article 1 of Protocol No. 1 to the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Article 29 § 3 of the Convention

In view of the above conclusions, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President