THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 64039/00
by Evgenios KOLARIDES
against Cyprus
The European Court of Human Rights (Third Section), sitting on 11 April 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S.Dollé, Section Registrar,
Having regard to the above application introduced on 5 October 2000 and registered on 20 December 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Cypriot national, born in 1940 and living in Nicosia. He is represented before the Court by Mr K. Adamides, Mr A. Demetriades and Mrs E. Nathanael, lawyers practising in Nicosia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
By a judgment of 30 March 1998 the Family Court of Nicosia pronounced the divorce between the applicant and his wife.
On 6 May 1998 the wife of the applicant applied to the Family Court for the applicant to disclose, within 15 days, in accordance with Sections 14A and 14B of Law 232/1991 regulating property relations between spouses (“the Law”), as amended by Law 25(1)/98, any assets in his possession on 22 May 1996.
On 18 June 1998 the applicant lodged an objection to this application. As a result, the Family Court submitted to the Supreme Court a question of law reserved (no.332) on whether Section 14A of the Law was compatible with the provisions of Articles 23 § 1 (right to property) and 30 §§ 2 and 3 (right to a fair trial) of the Constitution. In the meantime, as another question of law reserved (no. 330), directly related to question no. 332, was submitted to the Supreme Court in another case, the latter decided to join the two questions.
In its judgment of 11 May 2000, the Supreme Court found that Sections 14A and 14B of the Law were not contrary to these constitutional provisions. As regards Article 30 of the Constitution, the Supreme Court held that the obligation to disclose under Section 14A was imposed on both parties to the proceedings and established complete procedural equality between them. No party was disadvantaged vis-à-vis the other. Information concerning the assets of the parties constituted a precondition for the effectiveness of the substantive provisions of the Law. Section 14A aimed at establishing a factual situation, without which justice according to the provisions of the Law could not be done.
The proceedings before the family Court were still pending at the time of the introduction of the application before the Court.
B. Relevant domestic law
The relevant provisions of the Constitution read as follows:
Article 23 § 1
“Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right ...”
Article 30
“No person shall be denied access to the court assigned to him by or under this Constitution. The establishment of judicial committees or exceptional courts under any name whatsoever is prohibited.
In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. Judgment shall be reasoned and pronounced in public session, but the press and the public may be excluded from all or any part of the trial upon a decision of the court where it is in the interests of the security of the Republic or the constitutional order or public order or public safety or public morals, or where the interests of juveniles or the protection of the private life of the parties so require or, in special circumstances where, in the opinion of the court, publicity would prejudice the interests of justice.
Every person has the right
– to be informed of the reasons why he is required to appear before the court;
– to present his case before the court and to have the time necessary for its preparation;
– to adduce or cause to be adduced his evidence and to examine witnesses according to law;
– to have a lawyer of his own choice and to have free legal assistance where the interests of justice so require and as provided by law;
– to have free assistance of an interpreter if he cannot understand or speak the language used in court.”
Sections 14A and 14B of Law 232/1991 regulating property relations between spouses read as follows:
“14.A.-(1) For the purposes of the better implementation of section 14, the Court may on the application of any of the parties issue an order, by virtue of which the respondent will be obliged, within 15 days from the issue of such order, or within any other period that the Court may fix, to submit to the Court an affidavit, in which he will describe completely, clearly and in a precise manner the property in respect of which he had any direct or indirect interest on the date of the interruption of the cohabitation or on any other date that the Court may fix in the order.
(2) If the interest that the applicant had on the date fixed by the Court in property or part of it, ceased to belong to him on the date of the examination of the petition for divorce or any other date fixed by the Court, the respondent is obliged, on the application of any of the parties, to give complete, precise and convincing proof of the alienation or the disposal of the property or part of it by means of a supplementary affidavit, and if it is considered necessary the Court may order the respondent to give instructions to a banking institution or financing organisation, with notice to the Court, as regards the alienation, movement, transfer or restitution of the property or part of it, as the Court may decide.
14.-B(1) Any person who provides false, inaccurate or incomplete information in relation to a matter referred to in section 14 A is guilty of an offence and in case of conviction he is liable to imprisonment for a period not exceeding 2 years or to a fine not exceeding two thousand pounds and or to both penalties.
(2) Any person who refuses, omits or delays to comply with the order of the Court issued under section 14 A is guilty of an offence and, in case of conviction, is liable to be punished as provided in section 44 of the Courts of Justice Laws of 1960-1997 for contempt of court. In a case where this person is the petitioner for the divorce, the Court may in addition suspend further proceedings until this person complies with the Court’s order.”
COMPLAINTS
1. The applicant contends that the obligation under Sections 14A and 14B of Law 232/1991 to disclose the assets which he acquired during the marriage, combined with punishment in default, violates Article 1 of Protocol No. 1.
2. The applicant alleges that the obligation to disclose his assets and to be subjected to an interrogation in that respect violates Article 8 of the Convention.
3. Invoking Article 6 § 1 of the Convention, the applicant alleges a violation of his right to a fair hearing.
THE LAW
1. The applicant contends that the obligation under Sections 14A and 14B of Law 232/1991 to disclose the assets which he had acquired during the marriage, combined with punishment in default, violates Article 1 of Protocol No. 1, which provides 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.”
Furthermore, the applicant maintains that before the entry into force of Section 14, apart from the principles of common law and equity, no specific law regulated the property relations between spouses. These principles applied independently of the dissolution of marriage. However, Section 14 applies only in cases of dissolution of marriage and not only in respect of assets acquired after its entry into force but also in respect of those acquired before. As a result, the assets of each spouse which were regulated by the previous legislation are, since the entry into force of the Law, subject to the new criteria established by Section 14, in violation of Article 1 of Protocol No. 1.
The Court notes that the aim of Section 14A is to help a former spouse to become self-supporting after a divorce and to obtain a fair share of the property of the marriage in case his or her standard of living deteriorates. The information provided by virtue of that section does not deprive a spouse, like the applicant, of his property. It simply helps the court, which is called upon to liquidate the matrimonial property regime, to assess the resources and the financial needs of the spouses and decide whether contributions are to be made to the party who cannot be self-supporting.
In these circumstances, the obligation imposed on the applicant to disclose his assets under Section 14A does not amount to an interference with the right enshrined in Article 1 of Protocol No. 1.
It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant also alleges that the obligation to disclose his assets and be subjected to an interrogation in that respect violates Article 8 of the Convention, the relevant part of which reads as follows:
“1. Everyone has the right to respect for his private ... life ...
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 ... for the protection of the rights and freedoms of others.”
The Court considers that disclosure to the public or third parties of personal information may constitute an interference under Article 8 § 1 of the Convention, which requires justification, having regard to the importance of the protection of personal data in the enjoyment of a person’s private life. However, in the instant case, the Court recalls that the information which the applicant was required to disclose concerned his property and was provided in the form of an affidavit before a court for the purposes of the dissolution of his marriage and the distribution of the matrimonial property.
In these circumstances, the Court considers that, even if the obligation to disclose constituted an interference with the Article 8 right, that interference was justified because it was provided for by law and pursued the legitimate aim of protecting the rights of others, namely those of the other partner to the marriage.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicant alleges that there was a lack of balance in the means provided for him under Section 14A of the Law to defend his case, in violation of his right to a fair hearing. He claimed that he was subjected to an interrogation about his property with no regard to his line of defence in the proceedings before the Family Court, or to the liberty guaranteed by Article 6 to organise his defence appropriately. Furthermore, the applicant maintains that, contrary to Article 6, Section 14A obliged him to produce evidence which could incriminate him. Finally, the penalty of imprisonment in default obliged the applicant to testify under duress, which is also contrary to Article 6.
Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Court considers that there is a clear distinction between the present case and those of Funke v. France (judgment of 25 February 1993, Series A n° 256-A) or Saunders v. the United Kingdom (judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI), which concerned respectively the refusal to produce the documents requested by the customs and the use of answers compulsorily obtained in a non-judicial investigation in order to incriminate the accused during criminal proceedings. The conclusions reached by the Court in those cases aimed at securing that certain persons “charged with a criminal offence” had a right not to incriminate themselves.
In the instant case, the Court notes that Section 14A of the Law does not compel the applicant to provide evidence of an offence he has purportedly committed. It simply aims at granting each spouse in civil proceedings an equal right to be informed of the true extent of the property belonging to the other spouse with a view to the dissolution of the marriage. As the Supreme Court pointed out in its judgment of 11 May 2000, the obligation to disclose provided in Section 14A was imposed on both parties to the proceedings and established complete procedural equality between them; no party was disadvantaged vis-à-vis the other.
The Court considers that an obligation to provide evidence and answer questions with the object of establishing the true factual situation, which is necessary for the implementation of legislation like the present one under consideration and which is unconnected with any criminal liability, is intended to serve the interests of a fair hearing. Consequently it is not incompatible with Article 6 § 1 of the Convention.
In these circumstances, the Court considers that no appearance of a violation of Article 6 § 1 has been disclosed in the present case.
It follows that this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy