SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 15940/02
by Andreas GAVRIELIDES
against Cyprus
The European Court of Human Rights (Second Section), sitting on 7 January 2003 as a Chamber composed of
M.J.-P. Costa, président,
M.A.B. Baka,
M.Gaukur Jörundsson,
M.L. Loucaides,
M.C. Bîrsan,
M.M. Ugrekhelidze,
MmeA. Mularoni, juges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced on 10 April 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Andreas Gavrielides, is a Cypriot national who was born in 1951 and lives in Limassol. He is represented before the Court by Mr A.Demetriades, a lawyer practising in Nicosia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the owner of immovable property in the area of Tseri-Gerovounos. However, this property is enclosed and thus the applicant can only have access to it via neighbouring properties.
According to Article 11A of the Immovable Property (Tenure, Registration and Valuation) Law Cap. 224, if immovable property is inter alia enclosed for whatever reason with the result that there is no access to it from a public road, the owner has a right to demand a right of way to his enclosed property through the adjacent properties on payment of reasonable compensation. According to paragraph 2 of the same provision, the direction of the right of way as well as the amount of compensation payable by the owner of the enclosed property are determined by the Director of Land and Surveys of the District Land Office. The Director acts as the first instance decision-maker in proceedings for the acquisition of a right of way. Any person aggrieved by the Director’s decision can appeal to the District Court.
On 30 September 1994 the applicant applied to the District Land Office for the provision of a right of way to his property passing through three adjoining properties. The Director carried out the required inspection of the properties that would be affected so as to ensure that minimum hardship, damage and nuisance would be caused to the respective owners. On 9 January 1995 the Director determined the direction of the right of way and the amount of compensation to be paid by the applicant to the owners of the properties affected.
On 8 February 1996 one such owner filed an appeal against the Director and the applicant (case no. 86/96, Anna Costa Moeseos v. Director of Land and Surveys of the District Land Office and Andreas Gavrielides).
The District Land Office was not notified of the introduction of the appeal until after the 30 days’ time-limit for appeals had passed. The applicant had already paid the District Land Office on 13 February 1996 the fees required for the provision of the right of way and the amount of compensation due.
The applicant alleges that between 18 March 1996, the date on which the appeal was fixed for hearing, and 22 January 2002, when the case was fixed for hearing and then withdrawn, the hearing had to be adjourned on many occasions on account of, for example, applications for adjournment by the plaintiff, procedural errors by the plaintiff and the inability of the District Court to deal with the case.
On 20 January 1999 the District Court annulled the decision of the Director. The applicant, who was not represented by a lawyer, was not present at the hearing. On 18 February 1999 the applicant requested the District Court to set aside its decision of 20 January 1999. He alleged that for health reasons he had been unable to attend the hearing and submitted a certificate which proved that at that time he was having surgery abroad.
On 1 July 1999 the District Court set aside its decision of 20 January 1999. It held that the applicant’s absence was justified and that the hearing date had not been properly notified.
Despite several letters sent by the applicant to the Ombudsman, the Attorney General and the Registrar of the District Court, no action was taken to expedite the proceedings.
The case was fixed for hearing on 22 January 2002. However, on that date the plaintiff withdrew the appeal without attaching any conditions.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings.
2. The applicant complains under Article 1 of Protocol No. 1 to the Convention about the impossibility to develop his property during the proceedings.
3. The applicant complains under Article 13 of the Convention that he had no effective remedy in respect of the violation of his rights.
THE LAW
1. The applicant complains of the length of the proceedings before the District Court of Nicosia and of the lack of an effective remedy to complain about the length of the proceedings. He alleges a violation of Articles 6 § 1 and 13 of the Convention which read 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.”
The applicant stresses that the proceedings commenced with his application to the District Land Office on 30 September 1994, about seven years and seven months before the introduction of his application to the Court. Between 18 March 1996, the date on which the appeal was fixed for hearing, and the date of introduction of the application to the Court (10 April 2002), the hearing had to be continuously adjourned.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant alleges a violation of Article 1 of Protocol No. 1 which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The applicant submits that as a consequence of the excessive length of the proceedings and the failure of the Government to provide the applicant a right of way in accordance with the law, he has not been able to use or develop his property.
The Court recalls that any negative repercussions the excessive length of the proceedings may have had on the applicant’s enjoyment of his property may be regarded as the result of the infringement of the right guaranteed by Article 6 § 1 of the Convention and may be taken into consideration only for the purposes of the just satisfaction that the applicant might obtain following the establishment of the infringement by the Court (Varipati v. Greece no38459/97, 26 October 1999, not published).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning Articles 6 § 1 and 13 of the Convention;
Declares the remainder of the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy