FIRST SECTION
DECISION
Application no. 9095/08
by Dimitrakis FACONDIS
against Cyprus
The European Court of Human Rights (First Section), sitting on 27 May 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 14 February 2008,
Having regard to the declaration submitted by the respondent Government on 13 January 2010 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 Dimitrakis Facondis, is a Cypriot national who was born in 1944 and lives in Paphos. He was represented before the Court by Mr C. Josephides, a lawyer practising in Athienou. 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 24 February 1993 a civil action (action no. 581/93) was brought by Hellenic Bank Ltd (“the plaintiff”) against the applicant before the District Court of Paphos seeking the recovery of a loan and the sale of mortgaged property.
On 22 November 2001, following an agreement between the parties, a decision was issued by the District Court in favour of the plaintiff. The court then went on to decide the applicant's counter-claim.
The hearing of the counter-claim commenced on 29 October 2002 and ended on 5 February 2004. Judgment was reserved on that day.
On 17 February 2005 the District Court delivered its judgment dismissing the applicant's counter-claim. It held that the applicant had not established his claim. In this respect, it found, inter alia, that the evidence put forward by the applicant had been vague and inconsistent. Further, in its judgment the District Court noted that although both parties and the court itself had all contributed to the delay in the examination of the case, the main responsibility for the delay lay with the applicant.
On 24 March 2005 the applicant lodged an appeal before the Supreme Court (appeal no. 98/2005) challenging the findings of the first instance court. The applicant, further complained of a violation of his rights under Article 30 of the Constitution and Article 6 § 1 of the Convention due to the length of the first instance proceedings.
The Supreme Court dismissed the appeal on 31 October 2007. The Supreme Court agreed with and upheld the findings of the first instance court. With regard to the applicant's complaint as to the length of the proceedings it agreed with the first instance court that the applicant had been primarily responsible for the delay in the proceedings. In this respect it observed, inter alia, that the applicant had often applied for adjournments and had changed lawyer three times during the proceedings. In the Supreme Court's view the delay had not affected the fairness of the trial.
COMPLAINTS
1. The applicant complained under Article 6 of the Convention about the length of the proceedings before the domestic courts.
2. The applicant further complained under the above provision about the fairness of the proceedings. In particular, he complained about the evaluation of the evidence by the District Court and that the Supreme Court had failed to examine his arguments and give a reasoned judgment.
3. The applicant complained under Article 1 of Protocol No. 1 that as a result of an unfair trial he had suffered financial loss. In this connection, he referred to the amount he had had to pay following the domestic court's judgment and the legal fees he incurred.
4. The applicant complained that the domestic courts had infringed his rights under Articles 17 and 18 of the Convention.
5. Finally, the applicant complained under Article 13 of the Convention of a lack of an effective remedy in relation to his Convention complaints.
THE LAW
A. Length of proceedings and the lack of an effective remedy in this respect
The applicant complained about the length of the proceedings and that he had no effective remedy at his disposal. He relied on Articles 6 § 1 and 13 of the Convention which, in so far as relevant, provide 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...”
Article 13
Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
By a letter dated 13 January 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised in 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 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 did not fulfil the requirement of “reasonable” referred to in Article 6 § 1 of the Convention and no “effective remedy” referred to in Article 13 for the abovementioned violation was at the applicant's disposal.
2. Consequently, the Government is prepared to pay the applicant a global amount of EUR 17,000 (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 the lack of an effective remedy, and thus an acceptable sum as to quantum in the present case.
3. 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.
4. Respecting the Government's acknowledgment that there was no “effective remedy” at the applicant's disposal the Government 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 legislature completed its examination of 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”) before its Christmas recess, and is expected that it will approve the Bill as soon as it resumes legislative work in mid January 2010.
5. 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.
6. Complaints may also be made respecting the length of pending 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.
7. 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.
8. Furthermore, the Government is addressing the matter of preventing unreasonable length in judicial proceedings through a series of regulatory measures adopted or currently under way, or proposed. Some of the measures are summarised in the attached paper. They are also set out in the attached document respecting the Committee of Ministers' 1072nd (DH) meeting of December 2009, since they were also communicated to the Committee's secretariat during bilateral meetings held in Nicosia in June 2009.
9. In 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 document attached to the declaration the Government stated the following:
“1. The Supreme Court is reviewing the Civil Procedure Rules for updating and simplifying them for expediting proceedings. The review is carried out by a committee of Supreme Court judges in co-operation with practicing advocates of the Cyprus Bar Association. The work is expected to be completed by the end of July 2010.
2. The Supreme Court has assigned to one of its judges responsibility, for following up on statistics of older cases and acquainting the Supreme Court at regular intervals on the progress of judicial proceedings.
3. Disciplinary measures are taken against judges who do not comply with Supreme Court directions given under the Rules of Procedure for timely issue of judgments.
4. The stenotype service to replace stenographers and thus avoid delays caused by the need to transcribe records of proceedings has been introduced respecting proceedings in all Assize Courts. Steps are taken for its extension also to other court proceedings.
5. Computerization of the Judicial Service which is expected to solve many problems is expected to commence very soon. The Government has already approved the recruitment of necessary staff. It will be carried in two phases. The first phase will cover the Supreme Court and the Nicosia District Court, and the second one will extend it also to other courts.
6. The Government is examining a Supreme Court request for increasing the number of judges.”
In a letter dated 22 February 2010 the applicant requested the Court to proceed with the examination of his application. He pointed out that in his application he had raised other complaints which required examination by the Court. The applicant also expressed the view that the sum mentioned in the Government's declaration was inadequate considering the damage he had suffered, which included non-pecuniary and pecuniary damage, and the costs and expenses he had incurred both before the domestic courts and this Court.
In a letter of 10 March 2010 the Government informed the Court that the bill establishing a domestic remedy for length of proceedings had been approved by the legislature and that the relevant Law (Law 2 (I)/2010) had entered into force on 5 February 2010.
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”.
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 the alleged breach of one's right to a hearing within a reasonable time and the lack of an effective remedy in this respect in a variety of cases against Cyprus (see, for example, Mylonas v. Cyprus, no. 14790/06, 11 December 2008; Ouzounian Barret v. Cyprus, no. 2418/05, 18 January 2007; Gavrielides v. Cyprus, no. 15940/02, 1 June 2006; Lerios v. Cyprus, no. 68448/01, 23 March 2006; Paroutis v. Cyprus, no. 20435/02, 19 January 2006).
The Court observes that the Government's declaration contains a clear acknowledgment of a breach of Articles 6 § 1 and 13 of the Convention. Furthermore, the Court takes cognisance of the entry of Law 2(I)/2010 establishing national remedies for complaints of a violation of the reasonable time requirement of Article 6 § 1 of the Convention. Last but not least, 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
In so far as the applicant's remaining complaints under Articles 6, 13, 17 and 18 of the Convention and 1 of Protocol No. 1 are concerned, 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 rights and freedoms set out in the Convention.
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 complaints under Articles 6 § 1 and 13 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 complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy