FOURTH SECTION
DECISION
Application no. 72491/12
Andriana KLAEDES
against Cyprus
The European Court of Human Rights (Fourth Section), sitting on 22 September 2015 as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Krzysztof Wojtyczek,
Faris Vehabović,
Yonko Grozev, judges,
and Fatos Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 24 October 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Andriana Klaedes, is a British national, who was born in 1978 and lives in Nicosia. She was represented before the Court by Mr L. Loucaides, a lawyer practising in Nicosia.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was born intersex and in 1992 underwent a feminising surgical procedure in the United Kingdom. The applicant is a lawyer and appeared before the British courts and in British society as a female. In 2006 she changed her legal identification documents in England so as to record her female name, Andriana. Previously she used the name of Andy-Tony Panteli Klaede.
4. The applicant at some stage moved to Cyprus where she is currently practising as a lawyer. For professional purposes the applicant had initially kept her original male name, Andros Klaedes, on all her cards and documents and on the Register of Advocates.
5. In the beginning the applicant appeared before the courts wearing trousers and signed all documents as “A. Klaedes”. In 2009 she started appearing in court in female attire.
6. On 11 September 2012 the applicant had a case before the Larnaca District Court (criminal jurisdiction) and appeared before Judge M. She had appeared before this judge previously in respect of other cases wearing trousers and a jacket. On the above date she was wearing a long black skirt with a black blazer and a white shirt. The applicant claims that she was publicly humiliated and degraded by Judge M. in open court.
7. According to the applicant, Judge M. started making derogative comments. He told her that she was not allowed to appear before him. When she asked him the reason for this he replied that this was because she was wearing a skirt, she was a man and he did not accept masquerading in his court. When the applicant responded that she had already appeared before another judge without a problem, he kept saying “you are a man, you are a man”. He also told her that on the Register of Advocates she was registered as Andros Klaedes. When the applicant stated that he was violating her human rights, he replied “you are a man and you are not allowed to appear in such attire”. The court room at the time was full of lawyers and other people (court staff and other audience) who started laughing at her. The applicant told the judge that he had publicly disclosed her personal data. The judge asked her to leave the court room which she did after stating “as you wish your honour, with your leave”.
8. On 19 September 2012 the President of the Cyprus Bar Association issued an affirmation that Mrs Andriana Klaedes had been entered in the Register of Advocates on 6 March 1997 and had renewed her licence from 1997 until 2012.
9. On or around 24 September 2012, the applicant appeared before the same judge for a second time wearing a skirt. She submitted that the judge had reprimanded her and had stated that she was a man and she was not allowed to appear before him for the same reasons he had told her before. Although she informed the judge that she had obtained a certificate by the Cyprus Bar Association with her female name, the judge laughed and replied that her name had not been altered in the register and that she had to leave the court room and provide him with a certificate from the Supreme Court. The court room was full of lawyers and other people who were laughing at her. The applicant left the court room humiliated.
10. The applicant submitted that these incidents had received wide publicity through the mass media for several days adding further humiliation to the applicant, her family and friends. She was subjected to mockery, ridicule, contempt and was harassed by the journalists and other people. She also had suicidal tendencies.
11. The President of the District Court of Larnaca advised her not to appear before the said judge even though she had several cases before him.
12. On 24 October 2012, following the lodging of the present application with the Court, the applicant appeared before Judge M. who informed her that he had stepped down in respect of the cases in which she was a lawyer. Her cases were transferred to another judge of the same court. However, the applicant claimed that when she appeared before the new judge, he also treated her in a similar manner, called her by her male name and addressed her as “sir” in an unnecessary repetitive manner which amounted to mockery.
13. The applicant stated that the Larnaca District Court did not keep minutes of the relevant incidents and of the conversations set out above.
B. Relevant domestic law and practice
1. The Civil Wrongs Law, Cap. 148
14. Section 4 (4) of the Civil Wrongs law provides that no action shall be brought against any judge of any court in the Republic, other than the Supreme Court, nor against any person lawfully performing the duties of a judge of such court, nor against any official receiver, nor any member of any court martial nor against any arbitrator nor other judicial officer in respect of any civil wrong committed by him/her in his/her judicial capacity if this act caused the civil wrong within his/her jurisdiction.
2. The Supreme Council of Judicature
15. The 1960 Constitution, which came into force when the Republic of Cyprus was established, provided for the existence of both a High Court and a Supreme Constitutional Court. These Courts were composed of Greek, Turkish and neutral judges, that is, judges from a foreign country other than Greece and Turkey. The two neutral judges presided over the Courts. After the intercommunal troubles of 1964, the Administration of Justice (Miscellaneous Provisions) Law no. 33/64 was enacted on the basis of the law of necessity. By virtue of this law, the two highest courts were merged into one, the Supreme Court of Cyprus, to which the various jurisdictions and powers of the two pre-existing courts were transferred.
16. The Supreme Court was originally composed of five judges, but the number of judges was gradually increased by legislation to its current number of thirteen judges. The judges of the Supreme Court are appointed by the President of the Republic (Article 153.2 of the Constitution). The district judges, senior district judges, presidents of district courts and judges of the courts exercising specialised jurisdiction are appointed by the Supreme Council of Judicature, a body consisting of the judges of the Supreme Court (Articles 153.8(1) and (2) and 157 of the Constitution).
17. Pursuant to Article 157.2 of the Constitution the Supreme Council of Judicature has exclusive authority over the appointment, promotion, transfer, termination of appointment, dismissal and disciplinary matters of judicial officers of the inferior courts. It has the power to terminate the appointment of any judge, on account of mental or physical incapacity (Article 153.7(3)) or to dismiss a judge on the ground of misconduct (Article 153.7 (4)).
18. On 14 July 2000 the Supreme Court issued Rules on the basis of Article 163.2 (f) of the Constitution and section 17 of the Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law 33/64, as amended), setting out the practice and procedure to be followed by the Supreme Council of Judicature in the exercise of its competence with regard to disciplinary matters relating to judicial officers. The relevant rules stipulate in detail the disciplinary procedure to be followed in the event a complaint is made that a judge may have become incapable, have displayed inappropriate behaviour (misconduct) or committed a disciplinary offence (Rule 3). If it is considered that an investigation is justified, an investigating judge is appointed by the Supreme Court to carry this out (Rules 4 -7). After the completion of the investigation, the Supreme Court decides, on the basis of the report submitted by the investigating judge and the statements which were taken during the investigation, whether the referral of the judge under investigation to the Supreme Council of Judicature is justified (Rules 8 and 9). If a decision is taken to proceed against the judge for misconduct or the commission of a disciplinary offence, the Supreme Court files a charge or charges against the judge in question who is called to appear before the Supreme Council of Judicature. Disciplinary proceedings are then carried out before that body (Rules 10-26). If the Supreme Council of Judicature decides that the charge or charges against the judge in question have not been proved, it shall acquit and exonerate him (Rule 23). Otherwise, a judge who is found to be guilty of misconduct shall be heard before the Supreme Council of Judicature proceeds further (Rule 26).
19. The penalty for misconduct under the Rules is dismissal (Article 153.7(4) of the Constitution and Rule 27) and for committing a disciplinary offence, a reprimand or a reprimand published in the Official Gazette of the Republic (Rule 28).
3. Miscellaneous provisions
20. Section 17 of the Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law 33/64, as amended) provides that the Supreme Court can make Rules to be published in the official Gazette of the Republic for the better carrying out of this Law into effect. Article 163.2 (f) of the Constitution provides that the Supreme Court may make Rules of Court for prescribing the practice and procedure to be followed by the Supreme Council of Judicature in the exercise of its competence with regard to disciplinary matters relating to judicial officers.
COMPLAINTS
21. The applicant complained that her right to respect for her private life under Article 8 of the Convention had been infringed because of the disclosure of her personal data and matters concerning her sex.
22. She also complained that she was subjected to degrading treatment contrary to Article 3 of the Convention.
23. Further, the applicant complained under Article 6 of the Convention that her right to access to court on behalf of her clients was violated because of the behaviour and attitude of Judge M.
24. Lastly, she complained under Article 13 that there was no remedy in the domestic legal system in respect of the above complaints as judges enjoyed immunity under section 4 (4) of the Civil Wrongs Law (Cap. 148).
THE LAW
A. Complaints under Articles 3, 8 and 13 of the Convention
25. The applicant claimed a violation of Articles 3 and 8 of the Convention in relation to what she had been subjected to by Judge M. She also complained of a lack of an effective remedy under Article 13 in respect of her abovementioned complaints.
26. The Court considers that the complaints raised by the applicant fall to be examined under Articles 8 and 13 of the Convention which provide as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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.”
27. The applicant claimed under Article 8 that Judge M. had disclosed her personal data and matters concerning her sex in open court, infringing her right to respect for her private life which included, her reputation and personality. She had been humiliated and following both incidents subjected to mockery, ridicule, contempt and harassed by journalists. She complained under Article 13 that she could not bring a civil suit against Judge M. seeking a violation of her rights nor could she seek a judicial order allowing her to appear before him and preventing him from interfering with her private life.
28. The Court will first determine whether the applicant has complied with the rule of exhaustion of domestic remedies set out in Article 35 § 1 of the Convention, which provides that:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
29. The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 requires applicants to use the remedies provided by the national legal system thus dispensing States from answering before this Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption reflected in Article 13 of the Convention with which Article 35 § 1 has close affinity - that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems’ safeguarding of human rights (see principles set out in Vučković and Others v. Serbia [GC], no. 17153/11, §§ 69-74, 25 March 2014, with further references).
30. An effective remedy is one available in theory and in practice at the relevant time namely, one that is accessible, capable of providing redress in respect of the applicant’s complaints and offering reasonable prospects of success. Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention. However, the Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (see Abdi Abdi v. the United Kingdom, no. 27770/08, §§ 48-49, 9 April 2013).
31. The Court notes that pursuant to section 4 (4) of the Civil Wrongs Law members of the judiciary in Cyprus are immune to civil suit. Notwithstanding, complaints can be made to the Supreme Court about a judge’s conduct which could lead to a disciplinary procedure before the Supreme Council of Judicature for, inter alia, misconduct or the commission of a disciplinary offence. In cases of proven misconduct or a disciplinary offence, the Supreme Council of Judicature may remove a judge from office or reprimand him. The Supreme Council of Judicature can also issue a public reprimand to a judge by publishing it in the Official Gazette of the Republic.
32. Consequently, the domestic legal system provides a means of redress to persons, like the applicant, who have a grievance against a judge.
33. The applicant has not explained why she did not make a complaint against Judge M. to the Supreme Court nor has she claimed that disciplinary proceedings would be an insufficient or ineffective remedy in respect of her complaints. Indeed, she does not make any reference at all to disciplinary proceedings in her application form. Nor can the Court identify any grounds for considering that this remedy would have been inadequate or ineffective.
34. The Court observes that judicial immunity is a legal practice that exists in some form in many member States (see, for example, Sergey Zubarev v. Russia, no. 5682/06, § 32, 5 February 2015 Ernst and Others v. Belgium, no. 33400/96, § 50, 15 July 2003). It has been established for the benefit of the public, in whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences, while litigants can protect themselves from judicial errors by taking their complaints to an appeal court without resorting to suits for personal liability. The Court further points out that it has accepted in its case-law that where immunity is involved, limitations can be placed on the nature and extent of the available remedy (see, mutatis mutandis, A. v. the United Kingdom, no. 35373/97, § 86, ECHR 2002‑X). It also notes in this connection, that Article 8 does not necessarily entail a right to monetary compensation (see, by implication, Brincat and Others v. Malta, nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, § 60, 24 July 2014 and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001‑V (extracts)).
35. The Court does not find any exceptional circumstances capable of exempting the applicant from the obligation to exhaust the above remedy. It also points out in this respect that the applicant is a lawyer herself and should have been aware of this avenue of redress.
36. The Court therefore does not consider that the applicant in the present case took the necessary steps to exhaust available domestic remedies in respect of her complaint. Consequently, her complaint under Article 8 must be rejected under Article 35 §§ 1 and 4 of the Convention.
37. In view of this conclusion, the Court finds that the applicant’s complaint under Article 13 is inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaints under Articles 6 and 13 of the Convention
38. The applicant complained under Article 6 of the Convention of a breach of her right to access to court on behalf of her clients, due to Judge M.’s behaviour in court. She invoked Article 13 in conjunction with this provision, claiming, as with her complaint under Article 8, that she had no effective domestic remedy in relation to her complaint.
39. The Court notes that the applicant complains under Article 6 on behalf of her clients about their cases before the Larnaca District Court. The applicant cannot therefore herself claim to be a victim of the alleged violation and this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
40. It follows that the complaint raised under Article 13 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 15 October 2015.
Fatos AracıGuido Raimondi
Deputy RegistrarPresident
Full & Egal Universal Law Academy