FIRST SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38884/06
by Andreas GAVRIELIDES and Others
against Cyprus
The European Court of Human Rights (First Section), sitting on 16 October 2008 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 14 September 2006,
Having regard to the partial decision of 20 September 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the indication of 13 November 2007 by the United Kingdom Government that they did not wish to exercise their rights to intervene pursuant to Article 36 § 1 of the Convention
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Andreas Gavrielides, Mr Alexis Gavrielides, Mr Nikos Kannavas, Ms Maria Kannava, Mr Georgios Kannavas, Mr Savvas Kannavas and Ms Elena Kannava were born in 1951, 1975, 1936, 1943, 1969, 1972 and 1978 respectively. The second applicant is a British national and lives in London. The remaining applicants are all Cypriot nationals. The first applicant lives in Nicosia and the other applicants in Limassol. The applicants, apart from the second applicant, represented themselves before the Court. The second applicant was represented by the first applicant. The respondent Government were represented by 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.
All the applicants, apart from the fourth applicant, are the owners of property in the coastal area of Limassol.
On 22 November 2001 the first five applicants (hereinafter “the plaintiffs”) brought a civil action before the District Court of Limassol for unlawful trespass on the above property (action no. 8000/01; Andreas Gavrielides, Alexis Gavrielides, Nikos Kannavas, Maria Kannava and George Kannavas as administrators of the estate of Mr Andreas Kannavas v. Ayios Tychonas Local Authority, Medcon Construction Ltd and the Republic of Cyprus). On the same date they also filed an application for a court order to restrain the defendants from trespassing on their property pending final determination of the action.
At the time the action was brought the first, second and third applicants had one-quarter share each in the property in question. The remaining share was owned by Mr Andreas Kannavas who had died in 1995. The fourth and fifth applicants brought the action as administrators of his estate. Subsequently, on 15 September 2003, during the proceedings, the fifth, sixth and seventh applicants also became registered owners of the property (their share being equivalent to one-twelfth each).
On 28 November 2001 the plaintiffs requested leave to serve the application of 22 November 2001. The court fixed the application for hearing on 7 December 2001. On that date, at the defendants' request, the hearing of the application was adjourned and set for directions on 20 December 2001. The plaintiffs' lawyer did not object.
On 10 and 11 December 2001 the first and third defendants filed their appearance respectively.
On 20 December 2001 the plaintiffs' lawyer requested a hearing date for the application and the defendants requested additional time for filing their opposition. The court fixed the hearing for 29 January 2002.
On the latter date the plaintiffs' lawyer requested an adjournment in view of efforts to reach a settlement. This was granted and the application was adjourned until 18 February 2002. On that date the plaintiffs withdrew the application.
In the meantime, on 25 January 2002, the second defendant filed an appearance.
On 22 March 2002 the first defendant filed its defence.
On 18 November 2003 the Registrar sent a notice to the third defendant requiring it to file its defence within fourteen days otherwise a judgment might be issued in the plaintiffs' favour.
On 3 December 2003 the third defendant filed its defence.
On 18 December 2003 the first defendant filed an application for dismissal of the action for want of prosecution on the ground that the plaintiffs had not applied to the court for a hearing date.
On 28 January 2004 the court fixed the application for service on 11 April 2004.
On 9 February 2004 the plaintiffs filed their reply.
On 11 February 2004 the first defendant withdrew its application of 18 December 2003.
On 20 July 2005 notice was given by the Registrar to the plaintiffs requiring them to apply to the court within fourteen days to schedule the case for hearing otherwise the action would be dismissed for want of prosecution.
On 28 July 2005 the first defendant filed an application for dismissal of the action for want of prosecution on the part of the plaintiffs. On 4 October 2005 the application was fixed for directions on 21 October 2005.
On 6 October 2005 the plaintiffs applied for judgment against the second defendant who had not yet filed its defence. This was fixed for directions on 2 November 2005.
In the meanwhile, on 21 October 2005, the first defendant withdrew its application of 28 July 2005.
On 2 November 2005 the plaintiffs' application was fixed for directions on 25 November 2005. The second defendant requested additional time in order to file its defence. The plaintiffs' lawyer did not object.
The second defendant filed its defence on 23 November 2005.
On 25 November 2005 the plaintiffs withdrew their application of 6 October 2005.
On 14 March 2006 notice was given by the Registrar to the plaintiffs requiring them to apply to the court to schedule the case for a hearing within fourteen days otherwise the action could be dismissed for want of prosecution.
On 15 March 2006 the plaintiffs applied to the court for a hearing date.
The action came before the court for directions on 7 April 2006.
On the above date the plaintiffs' lawyers requested an adjournment to enable the parties to discuss the case. The defendants all agreed with this request. The action was fixed for directions on 12 May 2006. On that date the plaintiffs' lawyer informed the court that the parties had not made progress and requested that the case be set for hearing. The court fixed the hearing of the case for 4 October 2006.
On 29 September 2006 the court rescheduled the hearing for 12 October 2006.
On the latter date the third defendant requested an adjournment. All parties agreed. The case was set for directions for 22 November 2006. On that date the parties requested a hearing date. The hearing of the case was set for 16 February 2007.
On 16 February 2007 the plaintiffs' lawyer requested leave to withdraw from the case and the first applicant requested an adjournment in order to appoint another lawyer. The court noted the unfortunate development in the case and pointed out that the case had been pending before it for nearly six years. The case was adjourned for directions until 1 March 2007 to enable the plaintiffs to appoint another lawyer. It was then adjourned to 19 March 2007 at the newly appointed lawyer's request and then to 30 March 2007, when the case was fixed for hearing on 14 May 2007. On the latter date the plaintiffs' lawyer requested that the case be adjourned, indicating that the action would be withdrawn. The case was fixed for directions on 29 May 2007.
On the above date the plaintiffs withdrew the action.
COMPLAINTS
The applicants complained under Articles 6 § 1 and 13 of the Convention about the length of the proceedings and lack of an effective remedy in this respect.
THE LAW
The applicants complained that the length of the proceedings before the District Court of Limassol had been incompatible with the “reasonable time” requirement and that they had no effective remedy in respect of the length of these proceedings. They relied on Articles 6 § 1 and 13 of the Convention, which read as follows, in so far as relevant:
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.”
A. Victim status of the fourth, sixth and seventh applicants
The Government submitted that, on the facts complained of, the fourth, sixth and seventh applicants could not be considered as victims, within the meaning of Article 34 of the Convention. With regard to the fourth applicant they claimed that she did not have any personal interest in the outcome of the proceedings as she had taken part only in her capacity as an administrator of the estate of the deceased Mr Andreas Kannavas. In this respect they noted that this applicant did not have any rights in the property in question and was not an heir of the deceased. As for the sixth and seventh applicants the Government submitted that they had not been parties to the domestic proceedings.
The applicants challenged the Government's submissions and claimed that they all had the required victim status.
The Court recalls that under Article 34 of the Convention it may receive applications from individuals and others “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, Buckley v. the United Kingdom, 25 September 1996, §§ 56-59, Reports of Judgments and Decisions 1996-IV, and Valmont v. the United Kingdom (dec.), no. 36385/97, 23 March 1999).
As regards the fourth applicant, the Court considers that, since her complaint relates merely to the length of the domestic proceedings and a lack of remedy thereto, she can claim to have been directly affected by the allegedly excessive length of the proceedings to which she was a party and, thus, can be considered a “victim” within the meaning of Article 34 of the Convention. The same, however, cannot be said for the sixth and seventh applicants who were never parties to the proceedings before the domestic courts. Accordingly, the sixth and seventh applicants are not victims of the alleged violation within the meaning of Article 34 of the Convention and their complaints must be rejected as incompatible ratione personae pursuant to Article 35 §§ 3 and 4 of the Convention.
B. The substance of the complaints
The Court notes that the period to be taken into consideration began on 22 November 2001 when the applicants filed the action before the District Court of Limassol and ended on 29 May 2007 when they withdrew the action. The proceedings therefore lasted approximately five years and six months before one level of jurisdiction.
The Government submitted that the applicants had been responsible for the length of the proceedings and not the judicial authorities. In this respect they claimed that the applicants had not pursued their action before the court diligently but had only acted when absolutely necessary, that is, after notices were sent to them by the Registrar and applications were made against them. When the action was eventually ready for hearing they withdrew it. Accordingly, in the Government's view, the applicants' complaints were manifestly ill-founded.
The applicants disputed the Government's submissions. They claimed that neither the complexity of the case nor their conduct were the principal reasons for the excessive delay in the proceedings.
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The exercise of the right to a hearing within a reasonable time is subject, in civil cases, to diligence being shown by the parties concerned (see Pretto and Others v. Italy, 8 December 1983, § 33, Series A no. 71).
The Court firstly, notes that the case does not appear to have been complex. It further observes that the District Court rescheduled the hearing of the action only once of its own accord and only for a very short period of time. All other adjournments through out the proceedings were at the applicants' request and at the defendants' request with no objection on the applicants' part.
In addition to the significant delay on the part of the second and third defendants in filing their defence, the applicants only took steps to pursue their action when they received notices from the Registrar requiring them to do so and when applications were filed against them for want of prosecution. The Court notes in this respect that throughout the proceedings two applications were filed by the first defendant for the dismissal of the proceedings for want of prosecution by the applicants (on 18 December 2003 and 28 July 2005) and two notices were issued by the Registrar requiring the applicants to apply for a hearing date (on 20 July 2005 and 14 March 2006). The Court finds therefore that the applicants' conduct contributed considerably to prolonging the proceedings.
It is true that there was a certain delay in the issuing of the notices of 18 November 2003 and 20 July 2005 by the Registrar. In spite of this, it is clear from the facts that the parties, and in particular the applicants who had filed the action, failed to pursue their case diligently and take steps to have their case dealt with more speedily.
In conclusion, even though five and half years on one level of jurisdiction for civil proceedings may, on the face of it, seem unreasonable, the particular circumstances of the case and, more specifically, the applicants' conduct, lead the Court to find that the relevant authorities were not actually responsible for the length of the proceedings (see, mutatis mutandis, Ciricosta et Viola v. Italy, 4 December 1995, §§ 28-32, Series A no. 337-A; Monnet v. France, 27 October 1993, §§ 28-34, Series A no. 273‑A, and Vandi v. Italy (dec.), no. 46511/99, 26 September 2002).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
As to the Article 13 complaint, the Court reiterates that Article 13 requires a remedy in domestic law only where an individual has an “arguable claim” that one of his rights or freedoms set forth in the Convention has been violated (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).
In this connection the Court refers to its above findings according to which the applicants' length complaint is manifestly ill-founded. It follows that their complaint under Article 13 of the Convention cannot be considered “arguable” for the purposes of this provision. It is thus also inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court by a majority
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy