AS TO THE ADMISSIBILITY OF
Application No. 16155/90
by T.C.
against Cyprus
The European Commission of Human Rights sitting in private on 11
February 1992, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 October 1989
by T.C. against Cyprus and registered on 13 February 1990 under file
No. 16155/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 21 March 1991 and to the applicant's observations in
reply presented on 23 May 1991;
Having regard to the parties' submissions in view of and at the
oral hearing of 11 February 1992;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows.
The applicant is a Cypriot citizen born in 1914. He is a
pensioner residing in Nicosia. In the proceedings before the
Commission he is represented by Mr. Andreas Eftychiou, a lawyer
practising in Nicosia.
On 13 June 1983 the District Court of Nicosia gave a judgment
whereby an amount of £550 plus interest and costs was awarded to the
Popular Cyprus Bank Ltd. against a certain A, as primary debtor, and
against the applicant as guarantor.
On 20 September 1984 the same court ordered that the debt be paid
by monthly instalments of £35, the first instalment being payable on
1 April 1985.
As the debtors failed to pay, the bank asked the District Court
to issue an order of imprisonment against the debtors according to
Article 82 of Part VIII of the Civil Procedure Act, Chapter 6, which
provides as follows:
"Where upon any investigation by the Court respecting the
ability of a judgment debtor to pay the amount due under a
judgment or order, it appears to the Court that the
creditor has been unable to obtain satisfaction of his
judgment by the sale of the debtor's property or by
attachment of property in the hand of some third party; and
(a) that the debtor then has or since the making of the
judgment or order has had sufficient means to pay the money
directed to be paid by him, or some part thereof which
still remains unpaid, and that he refuses or neglects to
pay it according to the judgment or order; or
(b) that he has made or suffered to be made any gift,
delivery, or transfer of any property, or changed, removed
or concealed any property and has thereby prevented the
creditor from obtaining payment of the judgment debt or any
part thereof,
the Court may on the application of the creditor commit the
debtor to prison for any term not exceeding twelve months,
or until the payment of the sum due, subject to the
provisions hereinafter contained; but may at any
subsequent time order his release on the request of the
creditor."
In an affidavit in support of their application, the bank
submitted that "to the best of their knowledge and belief" the
defendants had no attachable property but that they had had since the
making of the judgment order sufficient income to pay the debt but
refused to comply with the court order.
The applicant opposed the above request. In two affidavits he
submitted he stated that he was 74 years old, that he was earning £74
per month, that due to his age and health condition he was unable to
work regularly and that he and his wife were financially supported by
their daughter. He concluded that he was unable to pay.
The District Court summoned the applicant to appear before it in
order to examine whether he had sufficient means to pay and, if so, to
order the imprisonment of the applicant for contempt of court.
On 14 February 1987 the applicant and his counsel appeared before
the judge of the District Court in the latter's office. The
applicant's counsel declared that the applicant had already paid part
of the debt, that he was a guarantor and was awaiting the main debtor
to pay and that he still needed four months. On 19 April 1987 the
District Court ordered the imprisonment of the applicant for sixty days
unless he paid the debt within ninety days.
The main debtor died on 3 November 1987 and an administratrix of
her estate was appointed.
On 28 December 1988, on application by the applicant, a judge of
the Supreme Court granted leave for filing an application for an order
of certiorari.
On 12 April 1989 Judge J. Kourris issued an order of certiorari
quashing the judgment of the District Court. The judge recalled that
"a court, before committing a debtor to prison for any term, must be
satisfied that the debtor then, or since the making of the judgment
order, has sufficient money to pay the money directed to be paid by
him, or some part thereof which still remains unpaid, and that he
refuses or neglects to pay it according to the judgment order". In the
present case the judge found that the District Court judge proceeded
to issue the order committing the applicant to prison "without holding
an inquiry to satisfy himself that the judgment debtor (had) sufficient
means to pay the monthly instalments, and that he refused or neglected
to pay same". The judge found that the District Court "acted in excess
or abuse of jurisdiction".
In the context of these proceedings the applicant had initially
complained that the order of imprisonment infringed Article 11 of the
Cypriot constitution which guarantees the right to liberty. However the
order of certiorari did not consider this point since the applicant
withdrew this complaint in the course of the proceedings.
On 29 September 1989 the Full Bench of the Supreme Court admitted
an appeal by the bank against the above order of certiorari. The Court
found the following:
"It is obvious from the statement of the counsel of the
respondent, which was made in his presence, that he
admitted that he paid an amount and that he awaited, as
guarantor, that the debtor would settle the judgment debt.
In other words, once she did not comply, the respondent
would pay but needed four months therefor ... This
statement gave the clear impression that all the
allegations contained in the affidavits filed in support of
the opposition to the order of imprisonment were abandoned.
Therefore the Judge made the order of imprisonment
justifying it in a due manner, since it relied not only on
the above statement of the counsel, but also on the
affidavit made on behalf of the bank in support of its
application, which affidavit remained unchallenged.
Undoubtedly, the order of imprisonment could have been
given as imprisonment could have been ordered after a
confession by the accused."
In a dissenting judgment Judge Stylianides upheld the order of
certiorari. He found that an imprisonment according to Article 82 of
Part VIII of the Civil Procedure Act, Chapter 6 had a punitive
character and that the debtor's guilt should be proven beyond any
reasonable doubt. In his opinion, the conviction of the applicant
violated the latter's right to a fair trial and to be presumed innocent
until proved guilty.
The applicant has not been detained since he paid the debt at
issue.
COMPLAINTS
The applicant complains that in the context of the above
proceedings he did not have a fair and public trial, and, in
particular, that he was not allowed to defend himself effectively since
the courts completely disregarded his submissions. He moreover submits
that due to the alleged unfairness of the said proceedings the order
of imprisonment given by the Cypriot courts violates his rights under
the Convention. The applicant invokes Articles 5, 6 and 14 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 October 1989 and registered
on 13 February 1990.
On 3 April 1990 the applicant requested the Commisison to take
measures to stay execution of the order of imprisonment against him.
On 6 April 1990 the Commission considered this request under Rule
36 of its Rules of Procedure. It decided not to indicate to the
respondent Government the measure suggested by the applicant.
On 10 December 1990 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the application before 22 February 1991.
After extension of the above time limit, granted by the
President, the Government submitted their observations on 21 March
1991.
On 19 April 1991 the Commission granted legal aid to the
applicant.
The applicant submitted observations in reply on 23 May 1991.
On 5 September 1991 the Commission decided to invite the parties
to a hearing on the admissibility and merits of the application.
At the hearing which took place on 11 February 1992 the parties
were represented as follows:
For the Government
Mr. Michael Triantafyllides, Attorney General of the Republic,
Agent of the Government
Ms. Toula Polychronidou, Counsel of the Republic (A), Counsel
For the applicant
Mr. Andreas Eftychiou, Lawyer in Nicosia
THE LAW
1. The applicant complains that he did not have a fair trial in the
determination of the charge of contempt of court against him. He
submits that he has not been given the opportunity to defend himself
since his submissions were disregarded by the courts. He invokes
Article 6 (Art. 6) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention guarantees, inter
alia, the right to a fair hearing in the determination of a criminal
charge. Under Article 6 para. 2 (Art. 6-2) of the Convention everyone
charged with a criminal offence shall be presumed innocent until proved
guilty according to law. Article 6 para. 3 (Art. 6-3) guarantees
certain minimum rights to everyone charged with a criminal offence.
The Government first submit that the order which constitutes the
subject-matter of the application was issued before 1 January 1989, the
date on which the Commission's competence to receive individual
applications against Cyprus took effect. They argue that the
application should be declared inadmissible as incompatible ratione
temporis with the provisions of the Convention.
The Commission does not share this view. It is true that the
application concerns an order for imprisonment issued on 19 April 1987.
However, the legality of this order under domestic law was determined
by a final decision of the Full Bench of the Supreme Court on 29
September 1989. This final domestic decision, which should be regarded
as the subject matter of the present claim, falls within the
Commission's competence ratione temporis.
It follows that the Government's objection on this point must be
rejected.
The Government further submit that this complaint is incompatible
ratione materiae with the provisions of the Convention. The order for
the applicant's imprisonment is a means of execution of a civil
judgment and cannot be regarded as a decision on a "criminal charge"
against him. Consequently, Article 6 (Art. 6) of the Convention is not
applicable to the proceedings complained of.
Moreover, the Government argue that the applicant has not
exhausted the domestic remedies at his disposal according to the
generally recognised rules of international law. The Government note
that the applicant failed to appeal against the litigation order.
Finally, the Government submit that in the present case the
guarantees of Article 6 (Art. 6) have been observed.
The applicant contends that the order for his imprisonment had
a punitive character and that Article 6 (Art. 6) applies to the
proceedings concerned. He further points out that he filed a
successful application for an order of certiorari. He considers that
he pursued an effective remedy under Cypriot law and has, thus,
complied with the requirements of Article 26 (Art. 26) of the
Convention. Finally, the applicant submits that the district judge's
decision wholly ignored his submissions and affidavits. Consequently,
his right to a fair trial under Article 6 (Art. 6) was violated.
The Commission notes that notwithstanding the purpose of the
order for the applicant's imprisonment which was primarily the
execution of the civil court's order, the decision made by the district
judge could have resulted in the applicant's imprisonment for sixty
days. In these circumstances and having regard in particular to the
nature and severity of this measure (Eur. Court H.R. case of Engel and
others, judgment of 8 June 1976, Series A no. 22, pp. 34-35, para. 82)
the Commission cannot exclude that the proceedings complained of were
decisive of a "criminal charge" against the applicant within the
meaning of the above provisions of the Convention.
However, the Commission does not have to decide on this point,
nor to examine the Government's objection as to the exhaustion of
domestic remedies, since it finds that the examination of the
application, as it has been submitted, does not disclose any appearance
of a violation of the rights guaranteed under the provisions invoked.
The Commission recalls in this respect that, in accordance with
Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention. It is not competent to examine an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (cf. e.g. No. 7987/77, Dec. 13.12.79, D.R. 18, p. 31).
Moreover, it is not for the Commission to decide whether or not
domestic courts have correctly assessed evidence, but only whether
evidence for and against the accused has been presented in such a
manner and the proceedings in general have been conducted in such a way
that he has had a fair trial (Barbera, Messegué and Jabardo v. Spain,
Comm. Report 16.10.86, Eur. Court H.R., Series A no. 146, pp. 48-49,
para. 102).
The Commission observes that in the present case the applicant
appeared before the competent judicial authorities assisted by his
counsel and that he could submit his arguments and allegations in the
way he wished. The decisions of the judicial authorities relied on the
evidence submitted and the statements made by the parties in the course
of fair hearings. The Commission does not find any indication that the
assessment of the evidence by the national courts was arbitrary. It
finds no appearance of a violation of the provisions invoked by the
applicant.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that the District Court did not
deal with his case in a public hearing as required by Article 6 para.
1 (Art. 6-1) of the Convention.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law. The mere fact that the applicant has submitted his
case to the various competent courts does not itself constitute
compliance with this rule. It is also required that the substance of
any complaint made before the Commission should have been raised during
the proceedings concerned (c.f. e.g. No. 10307/83, Dec. 6.3.84, D.R.
37, p. 113).
In the present case the applicant did not raise, either in form
or in substance, in the proceedings before the Supreme Court the
complaint concerning the lack of a public hearing he now makes before
the Commission.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and his application must in
this respect be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
3.Moreover, the applicant alleges that the order for his
imprisonment is contrary to the right to liberty and security of person
guaranteed under Article 5 (Art. 5) of the Convention.
The Government submit that Article 5 (Art. 5) does not apply to
the present case since the applicant has been neither arrested nor
detained. The Government further argue that the applicant has not
raised this complaint before the Cypriot tribunals and that he has not
therefore exhausted the domestic remedies at his disposal, according
to the generally recognised rules of international law. In any event,
the litigation order was in conformity with Article 5 para. 1 (b)
(Art. 5-1-b) of the Convention which permits to arrest and detain a
person "for non-compliance with the lawful order of a court".
The applicant argues that Article 5 (Art. 5) does not only apply
when actual deprivation of liberty has taken place but also where an
order for such deprivation has been issued.
The Commission finds that it is not required to decide whether
the provision invoked applied in the present case, since this complaint
must be declared inadmissible for the following reasons.
The Commission notes that the applicant withdrew his complaint
concerning the alleged violation of his right to liberty under Article
11 of the Constitution of Cyprus. An examination of the case does not
disclose the existence of any special circumstances which might have
absolved the applicant, according to the generally recognised rules of
international law, from pursuing the complaint concerned in the
proceedings before the Supreme Court of Cyprus.
It follows that in this respect he did not exhaust the domestic
remedies and that his complaint must be declared inadmissible, in
accordance with Article 27 para. 3 (Art. 27-3) of the Convention.
4. The applicant finally invokes Article 14 (Art. 14) of the
Convention.
However, the Commission finds that the applicant has failed to
substantiate this complaint.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy