FIRST SECTION
DECISION
Application no. 43249/08
by Athinoulla CHARALAMBIDES
against Cyprus
The European Court of Human Rights (First Section), sitting on 25 February 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Regitrar,
Having regard to the above application lodged on 26 August 2008,
Having regard to the declaration submitted by the respondent Government on 19 November 2009 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, Ms Athinoulla Charalambides, is a Cypriot national who was born in 1958 and lives in Nicosia. She is represented before the Court by Mr A.C. Eftychiou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date in 1994 a civil action was brought before the District Court of Nicosia against the applicant (action no. 2730/1994). The plaintiff company sought specific performance of two contracts of sale which it had entered into with the applicant in 1993 concerning property the applicant owned. The applicant claimed that the contracts were null and void.
On 8 September 2005 the Nicosia District Court found in favour of the plaintiff company and held that in the circumstances an order of specific performance was justified.
The applicant appealed to the Supreme Court (appeal no. 308/2005) but her appeal was dismissed on 29 February 2008. The Supreme Court upheld the findings of the first instance court. It also dismissed the applicant's arguments concerning the order of specific performance. It noted that the first instance court had set out in detail the reasons for which, on the facts of the case, it had been prevented from exercising its discretionary power in the applicant's favour.
COMPLAINTS
1. The applicant complained under Article 6 of the Convention about the protracted length of the proceedings before the Nicosia District Court.
2. Furthermore, the applicant complained under the same provision about the fairness of the proceedings before the domestic courts. In particular, the applicant complained about the courts' conclusions concerning the contracts of sale and that the judgments of the domestic courts were not sufficiently reasoned.
3. The applicant also complained under Article 1 of Protocol No. 1 that the District Court, in ordering specific performance of the contracts instead of awarding damages, did not strike a fair balance between the interests of the plaintiff company and the applicant. In view of the length of the proceedings and the rise in property prices such an order had unjustly benefited the plaintiff to the detriment of the applicant.
4. Lastly, the applicant complained under Article 14 of the Convention.
THE LAW
A. Length of proceedings
The applicant complained about the length of the proceedings. She relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
Article 6 § 1
“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 19 November 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provides 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 wishes to express - by way of a unilateral declaration - its acknowledgement that in the special circumstances of the present case the length of the proceedings, (first instance and appeal) did not fulfil the requirement of “reasonable” referred to in Article 6 § 1 of the Convention.
3. Consequently, the Government is prepared to pay the applicant a global amount of EUR 14,000 (covering pecuniary and non-pecuniary damage and costs and expenses). In its view, this amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings and thus an acceptable sum as to quantum in the present case.
4. This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. This payment will constitute the final settlement of the case.
5. The Government also states that it has introduced in the legislature (House of Representatives) on 14.7.09, specific legislation for creating national remedies for complaints of violation of the reasonable time requirement of Article 6 § 1 of the Convention in the determination of civil rights and obligations. The relevant Bill (entitled, “A Law Providing Effective Remedies for Violation of the Right to have Civil Rights and Obligations Determined within a Reasonable Time”) is presently examined by the legislature; it is expected that it will be approved by the legislature and enter into force at the end of next month or the beginning of January.
6. The Bill applies to complaints about the length of court proceedings in all civil and administrative cases (at all levels of jurisdiction); complainants may institute civil proceedings in district courts for violation of the right and payment of compensation and may also do so where the complaint is with respect to court proceedings concluded before the law enters into force.
7. Complaints may also be made respecting the length of the proceedings; a party may make an application to another court at any stage of the pending proceedings, complaining of their length and claiming compensation; the complainant is entitled to examination and judgment on his complaint, and to compensation for the violation; such an application may also be made respecting complaints about the length of proceedings which are pending when the law enters into force; in addition to compensation, directions must be given by the Supreme Court for expediting the pending proceedings; for this purpose the trial court must transmit its judgment to the Supreme Court.
8. The Bill provides that in determining the issues of violation and assessment of compensation in the above domestic proceedings the courts must take into account the case-law of the European Court of Human Rights
9. In the light of the above, the Government would suggest that the circumstances of the present case allow your Court to reach the conclusion that there exists 'any other reason', as referred to in Article 37 § 1 (c) of the Convention, justifying your Court to discontinue the examination of the application, and that, 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. Accordingly, the Government invites your Court to strike the application out of its list of cases.”
In a letter of 14 January 2010 the applicant requested the Court to proceed with the examination of her application. She noted, inter alia, that it was not possible for her to seek redress in Cyprus as the law proposed by the Government had not yet come into force and it was not clear when it would. The applicant also expressed the view that the sum mentioned in the Government's declaration was inadequate and that no distinction was made between the amount given as damages and that given in respect of costs and expenses.
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 Spóÿka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwiÿska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, 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‑V; Majewski v. Poland, no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007). Furthermore, it has already had occasion to address complaints related to alleged breach of one's right to a hearing within a reasonable time in a variety of cases against Cyprus (see, for example, Christodoulou v. Cyprus, no. 30282/06, 16 July 2009; Charalambides v. Cyprus, no. 37885/04, 15 January 2009; Michael Theodossiou Ltd v. Cyprus, no. 31811/04, 15 January 2009; Mylonas v. Cyprus, no. 14790/06, 11 December 2008; Douglas v. Cyprus, no. 21929/04, 17 July 2008; Josephides v. Cyprus, no. 33761/02, 6 December 2007; Odysseos v. Cyprus, no. 30503/03, 8 March 2007; Shacolas v. Cyprus, no. 47119/99, 4 May 2006).
The Court observes that the Government's declaration contains a clear acknowledgment that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. Furthermore, the Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case, and that this amount is consistent with the amounts awarded by the Court in other similar cases.
Against this background, the Court considers that it is no longer justified in continuing the examination of this part 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. Remaining complaints
The applicant further complained under Article 6 about the findings of the domestic courts concerning the contracts of sale and claimed that the domestic courts judgments were not sufficiently reasoned in this respect. The applicant also complained under Article 1 of Protocol No. 1 about the disproportionality of the District Court's order of specific performance. Lastly, she complained under Article 14 of the Convention.
The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to 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 rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 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.
André WampachChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy