AS TO THE ADMISSIBILITY OF
Application No. 28054/95
by Michael MAVRONICHIS
against Cyprus
The European Commission of Human Rights (First Chamber) sitting
in private on 26 June 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 July 1995 by
Michael MAVRONICHIS against Cyprus and registered on 28 July 1995 under
file No. 28054/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 February 1996 and the observations in reply submitted by the
applicant on 10 April 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Cypriot citizen and an accountant. He was born
in 1949 and is residing in Nicosia, Cyprus. He is represented by
Dr. Christos Clerides, an advocate practising in Nicosia.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
a) Particular circumstances of the case
On 2 November 1981 a public corporation, the Industrial Training
Authority, appointed and employed in the position of Head of Accounts
a certain Mr. I instead of the applicant, the only other candidate, who
was found to possess higher qualifications than those required for the
post. The applicant filed a recourse before the Supreme Court against
I's appointment (Case No. 478/81).
I resigned in October 1982 and the post of Head of Accounts was
abolished in November 1983.
On 6 June 1984 the Supreme Court, ruling on a preliminary
objection by the defendants, found that, although the post had been
abolished, the applicant's recourse had not become devoid of interest.
The court considered that, if it found that the applicant had been
erroneously not chosen for appointment, it would appear that the
applicant had suffered a detriment for the purposes of Article 146
para. 6 of the Constitution as a result of his non-appointment. On
22 February 1986 the Supreme Court declared the decision of the
Industrial Training Authority null and void on the ground that the
Authority had disregarded without any justification the applicant's
higher qualifications.
On 13 April 1987, the applicant filed, before the District Court
of Nicosia, a civil action against the Industrial Training Authority
claiming damages (Action No. 3350/87). The statement of defence was
filed on 8 October 1987.
On 18 April 1988 the action was fixed by the court for mention
on 16 May 1988. On that date both parties requested the court to fix
a date for hearing the case. The court fixed a hearing for
8 November 1988.
On that date the court by its own motion adjourned the hearing
until 20 April 1989. On 20 April 1989 the court again by its own motion
adjourned the hearing until 27 October 1989.
On 26 October 1989 the defendants applied for an adjournment. The
applicant did not object. The hearing was adjourned until
7 February 1990.
On 7 February 1990 the court started the examination of the case.
However, as this was not concluded on that date, the court adjourned
until 7 March 1990.
On that date the applicant's advocate asked for an adjournment.
The defendants had no objection and the court fixed the hearing for
5 April 1990.
On that date the examination of the case continued. Since,
however, it was not concluded, the court further adjourned until
10 May 1990.
On that date the court by its own motion adjourned the hearing
until 5 June 1990. On 5 June 1990 the hearing of the case was completed
and the court reserved its judgment.
On 30 November 1990 judgment was issued in the applicant's favour
for the sum of 2,128 Cyprus pounds. On 8 January 1991, the applicant
filed an appeal before the Supreme Court (Appeal No. 8331), contesting
the amount adjudicated. The Industrial Training Authority filed a
cross-appeal claiming that the action should have been dismissed.
On 12 August 1994 the applicant complained in writing to the
registrar of the court about the delays. On 15 March 1995 a hearing was
held in the case. The parties agreed that the cross-appeal should be
heard first, because if it was allowed this would dispose of all the
issues pending before the court.
On 20 June 1995 the Supreme Court considered that its decision
of 22 February 1986 which declared the appointment of I null and void
had not created an obligation for the Industrial Training Authority to
appoint the applicant and as a result the applicant was not an
aggrieved person for the purposes of Article 146 para. 6 of the
Constitution. The subsequent abolition of the post could not give rise
to a right to compensation to the extent that it had not been annulled.
The Industrial Training Authority was in principle under an obligation
to review the question of who should be appointed to the post in the
light of the above-mentioned decision of the Supreme Court. However,
in deciding whether it should do so, the Authority was entitled to take
into consideration the subsequent abolition of the post which was not
unlawful. In the light of the above, the Supreme Court decided to allow
the cross-appeal. The applicant's action was dismissed.
b) Relevant domestic law
The Constitution of Cyprus
Article 146
1. The Supreme Constitutional Court shall have exclusive
jurisdiction to adjudicate finally on a recourse made to it on
a complaint that a decision, an act or omission of any organ,
authority or person, exercising any executive or administrative
authority is contrary to any of the provisions of this
Constitution or of any law or is made in excess or in abuse of
powers vested in such organ or authority or person.
4. Upon such a recourse the Court may, by its decision -
(a) confirm, either in whole or in part, such decision or act or
omission; or
(b) declare, either in whole or in part, such decision or act to
be null and void and of no effect whatsoever; or
(c) declare that such omission, either in whole or in part, ought
not to have been made and that whatever has been omitted should
have been performed.
6. Any person aggrieved by any decision or act declared to be
void under paragraph 4 of this Article or by any omission
declared thereunder that it ought not to have been made shall be
entitled, if his claim is not met to his satisfaction by the
organ, authority or person concerned, to institute legal
proceedings in a court for the recovery of damages or for being
granted other remedy and to recover just and equitable damages
to be assessed by the court or to be granted such other just and
equitable remedy as such court is empowered to grant.
Article 172
The Republic shall be liable for any wrongful act or
omission causing damage committed in the exercice or purported
exercise of the duties of officers or authorities of the
Republic.
A law shall regulate such liability.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
about the length of the proceedings, which was so unreasonable as to
render his trial unfair.
2. The applicant also complains under Article 13 of the Convention
of the absence of an effective remedy in that he was not awarded
compensation despite a ruling by the Supreme Court that his rights had
been violated when he had not been appointed to a public sector post
which was subsequently abolished. He also claims that, in these
circumstances, it cannot be said that he had a fair trial.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 July 1995 and registered on
28 July 1995.
On 29 November 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
16 February 1996. The applicant replied on 10 April 1996.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the length of the proceedings, which was so
unreasonable as to render the trial unfair.
The Commission notes that, although the applicant refers to a
violation of the right to a fair trial, he does so in order to stress
the seriousness of the delays in the proceedings. His complaint
concerns, therefore, exclusively the right to a hearing within a
reasonable time in the determination of his civil rights and
obligations which is guaranteed in Article 6 para. 1 (Art. 6-1) of the
Convention and must be examined under this angle.
The Government submit that Article 6 para. 1 (Art. 6-1) does not
apply in the proceedings in question. The case can be distinguished
from Darnell v. United Kingdom (No. 15058/89, Dec. 10. 4. 91, D.R. 69
p. 306) in that the applicant sought permanent employment in the public
sector and domestic law did not give him access to the ordinary courts
to challenge the failure of the authorities to appoint him.
By lodging recourse No. 478/81 the applicant sought to challenge
before the Supreme Court and under Article 146 para. 1 of the
Constitution an administrative act which determined a right he
allegedly had under public law. The civil action No. 3350/87 which the
applicant brought before the District Court under Article 146 para. 6
of the Constitution was consequential to his previous recourse, in that
it presupposed a decision by the Supreme Court declaring a decision of
the administration challenged under Article 146 para. 1 of the
Constitution null and void.
A civil action for damages on the basis of Article 172 of the
Constitution, which determines the civil liability of the State for
wrongful acts and omissions, is to be distinguished from an action for
damages under Article 146 para. 6 of the Constitution. Not every person
who has succeeded in a recourse under Article 146 para. 1 of the
Constitution is considered to be an aggrieved person under Article 146
para. 6. Moreover, the quantum of damages to be awarded in an action
under Article 146 para. 6 of the Constitution is not assessed as in an
ordinary action for damages. The award must be just and equitable. The
civil court, in fixing the amount, takes into consideration the
culpability of the administration and of the plaintiff and does not
apply the law of master and servant.
As regards the substance of the complaint, the Government submit
that the proceedings before the first instance court were not
unreasonable in length, given the complicated nature of the issues
involved and the fact that the hearing was once adjourned at the
applicant's request and once at the request of the defendants to which
the applicant did not object. The length of the proceedings before the
Supreme Court was also reasonable given the recent increase in the
volume of litigation before that court.
The applicant submits, as regards the applicability of Article 6
para. 1 (Art. 6-1) of the Convention, that his case is analogous to
Darnell v. United Kingdom. If he had been appointed in the post, the
terms of his employment would have been governed by a contract which
he would have signed with the Industrial Training Authority. In any
event, the proceedings for compensation are separate from the
proceedings by which he sought to have his right to be employed in the
public sector determined. They were ordinary civil proceedings and the
courts usually applied the rules concerning master and servant. The
Supreme Court, when hearing his appeal, exercised its normal appellate
jurisdiction.
As regards the substance of the complaint, the applicant submits
that the case was not complex and that his request for an adjournment
did not delay the proceedings for more than a month. The applicant
should not be blamed for not objecting to the defendants' request for
an adjournment. In any event the above-mentioned request did not delay
the proceedings for more than three and a half months. There was no
justification for the delays before the Supreme Court.
In the light of all the above and the criteria established in the
case-law of the organs of the Convention concerning "reasonable time"
(complexity of the case, conduct of the parties and the conduct of the
authorities dealing with the case), the Commission considers that the
complaint concerning the length of the proceedings raises serious
issues of fact and law, including the question of the applicability of
Article 6 para. 1 (Art. 6-1) of the Convention, which cannot be
resolved at the present stage of the examination of the application,
but calls for an examination of the merits.
2. The applicant complains under Article 13 (Art. 13) of the
Convention of the absence of an effective remedy in that he was not
awarded compensation despite a ruling by the Supreme Court that his
rights had been violated when he had not been appointed to a public
sector post which was subsequently abolished. He also claims that, in
these circumstances, it cannot be said that he had a fair trial.
The Commission recalls that, in accordance with its case-law, it
is not competent to deal with complaints alleging that errors of law
or fact have been committed by domestic courts, except where it
considers that such errors might have involved a possible violation of
any of the rights or freedoms set out in the Convention (No. 458/59,
Dec. 29.3.60, Yearbook 3 p. 222; No. 5258/71, Dec. 8.2.73,
Collection 43 p. 71; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).
Moreover, the Convention does not guarantee a right to be
appointed to a public sector post and, as a result, Article 13
(Art. 13) of the Convention does not apply in the circumstances of the
case.
It follows that this part of the application must be declared
inadmissible as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint concerning the length of the proceedings;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy