JOINT DISSENTING OPINION OF JUDGES BUTKEVYCH , TSATSA-NIKOLOVSKA AND B OTOUCHAROVA

To our regret, we cannot join the majority in their decision not to award any sums in respect of non-pecuniary damage under Article 41 of the Convention.

An award in respect of non-pecuniary damages was refused essentially on the basis of the finding that the applicants had “used the domestic proceedings as a platform for presenting their numerous requests for the taking of evidence, in particular for demanding expert opinions and specialists ’ hearings on each and every point in spite of the disproportion between the procedural costs involved and the value in dispute” (see paragraph 43 of the judgment).

There is no need to comment on the above question because it is evidently the right of each party to the proceedings to request the taking of any kind of evidence. However, it is ultimately for the national courts to assess in each and every situation whether such requests are justified and whether it is necessary, for the proper administration of justice, to admit the evidence proposed (see Rizova v. the former Yugoslav Republic of Macedonia , 41228/02, § 50).

The conduct of the applicant is undoubtedly relevant to the assessment of the reasonableness of the length of the proceedings. In cases where that conduct “explains” all delays or the length of the proceedings as a whole, the Court has not hesitated to find that Article 6 has not been breached (see, for example, Ciricosta and Viola v. Italy , judgment of 4 December 1995, in which the proceedings had lasted sixteen years, but the conduct of the applicants was the primary reason for the delays and Z.G. v. Bulgaria (dec.), no. 48459/99, 21 November 2000, in which they had lasted approximately six years and nine months, but “the applicant [was] responsible not only for certain delays due to his numerous and apparently belated requests for submission of additional evidence but also in respect of the length of the proceedings as a whole “as he constantly changed his position on a relevant issue”.

In the present case, however, the Court found that there had been a violation of Article 6, notably because, as stated in paragraph 44, a delay of more than seven and a half years occurred as a result of the courts ’ failure to give reasons, which resulted in the case being repeatedly remitted. The authorities were responsible for the ensuing delay. Thus, the impugned behaviour of the applicants – noted in paragraph 43 – was the cause of only some of the numerous delays in the proceedings under examination.

We consider that in these circumstances it was unjustified to reject the applicants ’ claim for an award in respect of non-pecuniary damage. The fact that they had contributed to some of the delays in the proceedings might warrant a reduction of the award, but not a flat denial of any award. Finally, in our view, the overall length of the proceedings, which lasted more than sixteen years, should also be taken into consideration when determining whether an award should be made.