FIRST SECTION
DECISION
Application no. 29373/08
by Emilios MAKRIDES
against Cyprus
The European Court of Human Rights (First Section), sitting on 25 March 2010 as a Chamber composed of:
Christos Rozakis, président,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni, juges,
and Søren Nielsen, Section Registrar
Mr G. Nicolaou, the judge elected in respect of Cyprus, was unable to sit in the case (Rule 28 of the Rules of Court). The Government accordingly appointed Mr G. Malinverni, the judge elected in respect of Switzerland, to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 1).
Having regard to the above application lodged on 21 April 2008,
Having regard to the declaration submitted by the respondent Government on 7 September 2009 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 Emilios Makrides, is a Cypriot national who was born in 1963 and lives in Paphos. 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 3 July 2000 the applicant brought a civil action before the Nicosia District Court against the Cyprus Stock Exchange and an investment company (action no. 6729/00) seeking compensation for damages allegedly sustained mainly because of the delay in the issuance of share titles.
On 29 June 2005 the District Court dismissed the action. It held that on the basis of the evidence the applicant had not established his case. Despite this the court also considered the question of damages. In this respect it held that the applicant’s claim was unsubstantiated and that the evidence submitted by him was vague and incoherent. It therefore held, that even if the applicant had been successful in the action, in view of the lack of proof as to the amount of damages sustained, he would have only been awarded nominal damages.
The applicant appealed to the Supreme Court on 2 August 2005 (appeal no. 251/2005).
His appeal was dismissed on 17 December 2008. The Supreme Court upheld the first instance judgment. After considering the findings of the District Court it noted that in its judgment that court had analysed in detail and had fully reasoned its conclusions concerning the facts and the evidence before it. Its intervention was not therefore justified.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings.
2. The applicant further complained under the above provision about the fairness of these proceedings. In particular, he complained that the domestic courts had failed to consider his arguments and conduct a proper examination of the evidence submitted before them; that their judgments were not reasoned and, lastly, that the domestic courts could not have been impartial in view of the financial and political interests at stake.
THE LAW
A. Length of proceedings
The applicant complained about the length of the proceedings. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides 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 ...”
By a letter dated 7 September 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by 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 notes that the efforts with a view to securing a friendly settlement of the case have been unsuccessful.
2. In this situation, 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, both at first instance and on appeal did not fulfil the requirement of “reasonable” referred to in Article 6 § 1 of the Convention.
3. Consequently, the Government is prepared to pay the applicant a global amount of EUR 5,000 (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 thus an acceptable sum as to quantum in the present case.
4. 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.
5. The Government is also in the process of creating national effective 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 in all civil and administrative court proceedings. To this end specific legislation drafted by the Government Agent’s Office (a Bill under the title “ A Law Providing Effective Remedies for Violation of the Right to have Civil Rights and Obligations Determined within a Reasonable Time”) has now been introduced to Parliament. Under the proposed legislation complaints of violation of the right to have civil rights and obligations determined within a reasonable time are actionable, and the complainants may institute proceedings by way of a civil action in district courts seeking compensation for the violation where judicial examination of the case in which they allege that their right was violated has been completed. The right to institute such proceedings is also afforded concerning cases which were completed before the law’s date of entry into force. In addition, a party to pending court proceedings may at any stage of the proceedings raise there an allegation of violation of his right in the proceedings, and is entitled to examination and judicial pronouncement by the competent court to which the matter is referred, concerning the question of violation. A judgment making a finding of a violation under this procedure concerning proceedings that are pending, must be transmitted to the Supreme Court for any necessary directions for speeding up the proceedings. Such a judgment affords also the right to institute proceedings in district courts by way of civil action concerning the issue of compensation for the violation found. In determining the issue of violation of the right and assessing compensation the courts must take into account the case-law of the European Court of Human Rights. This is applicable both in proceedings for violation by way of civil action and in the procedure for examination of allegations of violation in pending proceedings.
6. In the 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 letter of 1 December 2009 the applicant requested the Court to proceed with the examination of his application. He pointed out that his application involved matters other than the length of the proceedings which required examination by the Court. The applicant considered that even if the law proposed by the Government came into force, the domestic courts would not be able to examine his application in its entirety or provide him with an adequate remedy. He also noted in this respect that he could be prevented from bringing his case before the domestic courts due to applicable limitation periods. Lastly, the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
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”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
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 alleged breach of one’s right to a hearing within a reasonable time in a variety of cases against Cyprus (see, for example, Christodoulou v. Cyprus, no. 30282/06, 16 July 2009; Charalambides v. Cyprus, no. 37885/04, 15 January 2009; Michael Theodossiou Ltd v. Cyprus, no. 31811/04, 15 January 2009; Mylonas v. Cyprus, no. 14790/06, 11 December 2008; Douglas v. Cyprus, no. 21929/04, 17 July 2008; Josephides v. Cyprus, no. 33761/02, 6 December 2007; Odysseos v. Cyprus, no. 30503/03, 8 March 2007; Shacolas v. Cyprus, no. 47119/99, 4 May 2006).
The Court observes that the Government’s declaration contains a clear acknowledgment that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. Furthermore, 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
The applicant further complained under Article 6 about the fairness of the proceedings. In particular, he alleged that the domestic courts had failed to consider his arguments and conduct a proper examination of the evidence submitted before them; that the domestic judgments were not reasoned and that the domestic courts had not been impartial.
The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to 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 or its Protocols. 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 complaint under Article 6 § 1 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 complaint 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