FIFTH SECTION
\nCASE OF E.B. AND OTHERS v. AUSTRIA
\n(Applications nos. 31913\/07, 38357\/07, 48098\/07, 48777\/07 and 48779\/07)<\/p>\n
JUDGMENT
\n(Revision)
\nSTRASBOURG
\n14 June 2018<\/p>\n
FINAL
\n14\/09\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of E.B. and Others v. Austria, (request for revision of the judgment of 7 November 2013),<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:<\/p>\n Angelika Nu\u00dfberger, President, Having deliberated in private on 22 May 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in five applications (nos. 31913\/07, 38357\/07, 48098\/07, 48777\/07 and 48779\/07) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by four Austrian nationals, Mr E.B. (\u201cthe first applicant\u201d), Mr H.G. (\u201cthe second applicant\u201d), Mr A.S. (\u201cthe third applicant\u201d) and Mr A.V. (\u201cthe fourth applicant\u201d), on 26 October 2006, 17 August 2007 and 18 October 2007. The President of the Section acceded to the applicants\u2019 request not to have their names disclosed (Rule 47 \u00a7 3 of the Rules of Court).<\/p>\n 2.\u00a0\u00a0In a judgment delivered on 7 November 2013, the Court held that there had been a violation of Article 14 of the Convention read in conjunction with Article 8 on account of the domestic authorities\u2019 refusal to delete the applicants\u2019 convictions from their criminal records, even though the provision under which the applicants had been convicted had previously been found unconstitutional by the Constitutional Court, and of Article 13 on account of the lack of an effective remedy in this respect. The Court also decided to award the first applicant5,000 euros (EUR) for non-pecuniary damage, EUR\u00a06,000 for costs incurred in the domestic proceedings, and EUR\u00a05,000 for costs incurred before the Court, and dismissed the remainder of the claims for just satisfaction.<\/p>\n 3.\u00a0\u00a0On 16\u00a0November 2013 the first applicant\u2019s representative requested a rectification or revision of the judgment as regards the award made to the first applicant for costs incurred in the domestic proceedings.<\/p>\n 4.\u00a0\u00a0In its Resolution CM\/ResDH(2016)280, adopted on 5\u00a0October 2016 at the 1267th meeting of the Ministers\u2019 Deputies, the Committee of Ministers found that all the measures required by Article\u00a046 \u00a7\u00a01 of the Convention, including the payment of the just satisfaction awarded by the Court, had been adopted by the respondent State. It thus decided to close the examination of the execution of the Court\u2019s judgment delivered on 7\u00a0November 2013.<\/p>\n 5.\u00a0\u00a0On 30\u00a0January 2018 the Court decided to deal with the request under Rule\u00a080 of the Rules of Court and to communicate it to the Government, inviting them to submit observations within four weeks. Those observations were received on 28\u00a0February 2018.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0THE ORIGINAL JUDGMENT OF THE COURT<\/p>\n 6.\u00a0\u00a0The Court\u2019s judgment of 7\u00a0November 2013 recorded the first applicant\u2019s claimswith regard tocosts and expenses as follows:<\/p>\n \u201c98.\u00a0\u00a0The applicants also claimed the reimbursement of costs and expenses incurred before the domestic courts and authorities and those incurred before the Court. The first applicant claimed EUR 38,410.38 under this head. His claim comprised EUR\u00a016,911.18 for his defence in the criminal proceedings in 1982, 1999 and 2001, EUR 8,326.08 for the proceedings in respect of the rectification of his criminal record and the proceedings for the renewal of the criminal proceedings, and EUR\u00a013,173.12 for the proceedings before the Court….\u201d<\/p>\n 7.\u00a0\u00a0Accordingly, the Court made the following awards under the head of costs and expenses:<\/p>\n \u201c101.\u00a0\u00a0In respect of the first applicant\u2019s claim concerning the costs of his defence in the criminal proceedings in 1982, 1999 and 2001, the Court observes that his present application only concerned his attempts to have his criminal record modified, but did not concern the underlying criminal proceedings themselves. Therefore no award can be made in this respect.<\/p>\n 102.\u00a0\u00a0As regards the applicants\u2019 claims for costs incurred in the domestic proceedings in respect of the deletion of their convictions under Article\u00a0209 of the Criminal Code from their criminal records and for the renewal of the underlying criminal proceedings, the Court considers their claims excessive, particularly given their broadly similar submissions in the proceedings at issue. Making an assessment on an equitable basis, the Court awards the first and second applicants EUR 6,000 each and the third and fourth applicants EUR\u00a04,000 each under this head, plus any taxes that may be chargeable to the applicants on these amounts.<\/p>\n 103.\u00a0\u00a0As regards the applicants\u2019 claims for reimbursement of costs incurred in the proceedings before the Court, the Court also considers these claims excessive. In this connection, it notes that the applicants were all represented by the same lawyer whose submissions were to a large extent identical in the present applications. Making an assessment on an equitable basis, the Court awards the first, third and fourth applicants EUR 5,000 each under this head and the second applicant EUR 10,000, plus any taxes that may be chargeable to the applicants on these amounts.\u201d<\/p>\n II.\u00a0\u00a0THE REQUEST FOR REVISION<\/p>\n 8.\u00a0\u00a0The first applicant\u2019srepresentative requested revision or rectification of the judgment of 7 November 2013 because it gave undue account of the first applicant\u2019s claims for costs and expenses incurred in the domestic proceedings. He submitted that the first applicant had not claimed the sum of EUR\u00a016,911.18 for his defence in the underlying criminal proceedings in 1982, 1999 and 2001, but for the proceedings in respect of the rectification of his criminal record in 2006. He therefore requested the Court to award the first applicant a reasonable sum in respect of the EUR\u00a016,911.18 claimed for those proceedings.<\/p>\n 9.\u00a0\u00a0The Government referred to their original observations on the first applicant\u2019s claims for just satisfactionsubmitted in 2010, in which they had argued that the claims had been excessive. In view of those observations, the Government now stated that the award made for costs and expenses in the original judgment of 7\u00a0November 2013 appeared just in the sense of Article\u00a041 of the Convention and that no award should be made for the costs claimed for the renewal proceedings.<\/p>\n 10.\u00a0\u00a0The Court finds that the first applicant\u2019s arguments do not relate to a clerical error, an error in calculation or an obvious mistake within the meaning of Rule 81 of the Rules of Court.<\/p>\n 11.\u00a0\u00a0The Court observesthat its reading of the first applicant\u2019s submissions as regards his claims for just satisfactionhad a decisive influence on the outcome of the judgment, namely the allocation of the amount of costs and expenses, according to Rule\u00a080 \u00a7\u00a01 of the Rules of Court. The Court further notes that this could not have been known to the first applicant prior to the delivery of the original judgment of 7\u00a0November 2013.<\/p>\n 12.\u00a0\u00a0The Court accordingly considers that the judgment of 7\u00a0November 2013 should be revised pursuant to Rule\u00a080 of the Rules of Court, the relevant parts of which provide:<\/p>\n \u201cA party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court … to revise that judgment.<\/p>\n …\u201d<\/p>\n 13.\u00a0\u00a0Having regard to the parties\u2019 submissions, the Court considers the first applicant\u2019s claim for costs incurred in the domestic proceedings in respect of the deletion of his convictions under Article\u00a0209 of the Criminal Code from his criminal record and for the renewal of the underlying criminal proceedings, excessive. Making an assessment on an equitable basis, the Court now awards the first applicant EUR\u00a08,500, plus any tax that may be chargeable on this amount.<\/p>\n 14.\u00a0\u00a0Taking into account the sum of EUR\u00a05,000 awarded to the first applicant in respect of the costs incurred before it, the Courtnow awards the first applicant a total of EUR\u00a013,500, plus any tax that may be chargeable to the first applicant on this amount, under the head of costs and expenses.<\/p>\n 15.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Decidesto revise its judgment of 7\u00a0November 2013 concerning the application no.\u00a031913\/07 as regards the award of costs and expenses under Article 41 of the Convention;<\/p>\n 2.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the first applicant,within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, and insofar as the amount has not yet been paid, EUR\u00a013,500 (thirteen thousand five hundred euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.<\/p>\n Done in English, and notified in writing on 14 June 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Claudia Westerdiek\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Angelika Nu\u00dfberger
\nErik M\u00f8se,
\nAndr\u00e9 Potocki,
\nYonko Grozev,
\nM\u0101rti\u0146\u0161 Mits,
\nGabriele Kucsko-Stadlmayer,
\nLado Chanturia, judges,
\nand Claudia Westerdiek, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n