FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27841/07
by David Charles ORAMS and Linda Elizabeth ORAMS
against Cyprus
The European Court of Human Rights (First Section), sitting on 10 June 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 13 June 2007,
Having regard to the factual information submitted by the respondent Government pursuant to Rule 49 § 3 (a) of the Rules of Court and the comments in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr David Charles Orams and Mrs Linda Elizabeth Orams, are British nationals who were born in 1944 and 1946 respectively and live in East Sussex. They were represented before the Court by Mr Z. Necatigil and Ms Ş. Karabacak, lawyers practising in Nicosia, in the northern part of Cyprus.
A. The circumstances of the case
The facts of the case, as submitted by the applicants and as derived from the documents submitted by the parties, may be summarised as follows.
The applicants, a British couple, purchased a plot of land in 2002 in the “Turkish Republic of Northern Cyprus” (“TRNC”) from a private vendor who was the registered owner under the law of the “TRNC”. The land is situated in the village of Lapithos, in the district of Kyrenia. The applicants built a villa there and regularly use the property as their holiday home.
1. Proceedings before the Cypriot Courts
(a) District Court of Nicosia (civil action no. 9968/04)
Mr M.A. (“the plaintiff”), a Greek-Cypriot, claimed ownership of the above land and brought proceedings against the applicants before the District Court of Nicosia (“the District Court”) seeking damages for trespass to his property. He also applied for a demolition order of the villa, swimming pool and fence and for the return of the property.
On 26 October 2004 two writs were issued in Greek by the District Court and served on the second applicant in person at the applicants' holiday home. She did not sign them. The writs stated that in order to prevent a default judgment an appearance had to be entered before the District Court within 10 days of service, namely by 8 November 2004. The applicants obtained the assistance of a lawyer, Mr G. M., who agreed to enter an appearance on their behalf on 8 November 2004. However, the lawyer did not enter an appearance on that day. No explanation for this has been given[1].
On 8 November 2004 the plaintiff filed an application for judgment to be entered in default of appearance. On 9 November 2004, as no one had entered an appearance for the applicants, the District Court gave a default judgment on the plaintiff's claim. The applicants' lawyer attended the District Court on the above date in order to enter an appearance on behalf of the applicants but judgment had already been entered. The order of the District Court required immediate demolition of the villa and other constructions which the applicants had erected on the land and delivery to the plaintiff of free possession of the land. It further required the applicants to refrain from continuing the unlawful intervention on the land. Orders for damages (special and mesne profits) and costs were also made.
On 15 November 2004 the applicants' lawyers, Mr G.M. and Mr M.A.[2], entered an appearance on behalf of the applicants and filed an application to have the judgment set aside.
On 19 April 2005, after hearing evidence and arguments from the parties, the District Court delivered a judgment dismissing the application.
In its judgment the District Court held, firstly, that it had jurisdiction to try the case as the land in question was situated in the district of Kyrenia which came under its jurisdiction following the merger of that district with the district of Nicosia in 1974 (relying on/ referring to sections 3 (4) and 21 (2) of the Courts of Justice Law 1960 - Law 14/1960, as amended; and Notification No. 1383 in the Official Gazette of the Republic of 13 September 1974). The District Court relied on the Court's judgment in the case of Loizidou v. Turkey ((merits), 18 December 1996, Reports of Judgments and Decisions 1996‑VI) as authority that ownership of land in the northern part of Cyprus remained with its original Greek-Cypriot owners. It noted that the argument that the court should take into account the de facto situation in the north had been put forward and dismissed by the Court in its judgment in the case of Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey (no. 16163/90, 31 July 2003). The District Court then considered the merits of the application. Relying, inter alia, on the Court's judgments in the cases of Loizidou v. Turkey (cited above) and Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001‑IV), it held that the plaintiff had not lost his right to his land. It further found that the conduct of the applicants towards the property amounted to trespass and neither “local custom” nor the claim that the applicants had acted in good faith could provide a defence. It noted that Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Regulation No. 44/2001”) was not applicable in the case as it concerned exclusively the question of the recognition and enforcement of judgments in other jurisdictions and was irrelevant to the question of setting aside the judgment obtained by the plaintiff. The District Court concluded that the applicants had failed to show that they had a prima facie or arguable defence and dismissed the application on that ground. Costs were awarded to the plaintiff.
(b) Supreme Court (civil appeal no. 121/2005)
On 25 April 2005 the applicants lodged an appeal before the Supreme Court. They put forward eight grounds of appeal[3] challenging the judgments of the District Court. In these grounds the applicants did not challenge the jurisdiction of the District Court and of the domestic courts in general under domestic or European Community Law.
The applicants' lawyers in their written address outline filed on 30 January 2006[4], before dealing with the grounds of appeal, raised the issue of jurisdiction of the domestic courts, relying mainly on Protocol No. 10 on Cyprus[5] and Regulation No. 44/2001. In their view, in the light of these provisions, the District Court, and Cypriot courts in general, did not have jurisdiction to try the case.
It appears that due to difficulties faced in serving the applicants' lawyers, whose offices were in the northern part of Cyprus, with documents and/or notices of hearings, on 14 March 2006, one of the applicants' lawyers, Mr M.A., informed the Supreme Court that he would appoint an office of a colleague in Nicosia as an office for service and would notify the Registrar of this[6].
According to the applicants, on 15 November 2006, a bailiff of the Supreme Court telephoned the office of one of the applicants' lawyers and asked them to contact the court to pick up the date for the appeal before the Supreme Court. According to the applicants a message was left with the secretary. The applicants submit that no written notification was sent to their lawyers and that, on 13 December 2006, one of their lawyers, Mr M.A., happened to be at the Supreme Court representing other clients and was called in by a Supreme Court judge to appear for the applicants at the hearing. The applicants state that this was the first time that Mr M. A. had heard of the date of the appeal.
The appeal was heard on the above date.
The verbatim record of the hearing reports the following submissions by the applicant's lawyer (translation):
“Mr M.A.: please there is no need for translation as I understand and speak the Greek language. It would therefore be a waste of time.
Your honour Mr President, your honours, at this stage I do not wish to waste the Court's time and I will simply adopt the outline of my address.
The only thing I wish to add is that the Court, the District Court, had this case at an unfortunate time when there was no arrangement as to whether the retainers would be in the Greek, English or Turkish (language). As you will see in the file before us, we asked for the same facility in this Court too. In the end we agreed that it would be in the Greek language. It was a time immediately after the opening of the roadblocks when cases of such a nature came before the Courts in Nicosia and the Registrar had his doubts. I remember asking whether the retainer would be in English and they told us that the authorities of the Republic use only the Greek and Turkish language. I brought a retainer before 1974 in English, those we had in our Court and consequently there was a period of confusion. And I am sure that this confusion led to the decision that the Court gave in these circumstances in the wrong exercise of its discretion.
All this case is based on the case of Wella and I argue and submit that her honour the judge in the lower Court approached it wrongly. Thank you.”
Following the submissions of the plaintiff's lawyer, the Supreme Court reserved judgment.
Subsequently, on 19 December 2006 the applicants' lawyers sought to file an amended notice of appeal before the Supreme Court. In particular, in a letter dated 18 December 2006, the applicants requested the Supreme Court to hold a two to three day hearing so that all relevant principles of European Community law could be examined; reminded the Supreme Court that it had a duty, under Article 10 of the Treaty establishing the European Community to consider all relevant principles of European Community law; and, lastly, relying on Article 6 § 1 of the Convention expressed the view that the hearing of 13 December 2006 had not afforded sufficient time for the examination of the complicated questions of European Community law that arose in the case. To their letter the applicants attached a detailed memorial and a copy of the judgment of the High Court of the United Kingdom[7].
The applicants stated that they had not been permitted to file the aforementioned documents. On 20 December, however, the clerk at the Registry informed them that although the documents would not be formally accepted they would be shown to the judges.
In the meantime the court had fixed the case for judgment for 21 December 2006. On that date, immediately before judgment was delivered, the verbatim record reports the following exchange as having taken place (translation):
“Court: Today we fixed the case for judgment. Mr M.A., you are submitting an application, which has not been of course translated but you have made a letter in English. If I understand correctly you wish to file amended grounds of appeal and reopen the case? The case has finished and has been reserved. Will you file an application for amended grounds of appeal at this stage?
Mr M.A.: We will withdraw this application.
Court: There are decisions that at this stage after judgment has been reserved the case is not reopened unless the Court itself requires any clarification.
We will ignore this application and proceed to deliver judgment. The judgment is unanimous. The judgment will be given by Judge Nikolatos.
Mr M.A.: We do not need a translator. We waive the right for translation in Turkish.”
The Supreme Court then delivered its judgment dismissing the appeal. With regard to the issue of jurisdiction the court noted the following:
“At the beginning of the address of learned counsel for the appellants, argumentation was put forward which aimed to show that the first instance court did not have jurisdiction or territorial competence to try the case before it. The issue of the jurisdiction of the first instance court was raised before us also by learned counsel for the respondent, who indeed invited this court to refer the issue of jurisdiction to the Court of the European Communities as a preliminary legal point. Following the observation made by our Court that the issue of jurisdiction is not raised in the present appeal as it does not constitute any of the grounds of appeal, learned counsel for the respondent abandoned in essence his original suggestion. We do not intend to examine the question of jurisdiction or territorial competence of the first instance court as this matter is not raised in the appeal and is not a ground of appeal. It is correct that the matter of jurisdiction can be raised at any stage of the proceedings and can be raised ex proprio motu by the Court, but in the present case it is not raised in the grounds of appeal and our Court does not consider it useful to raise it on its own initiative.”
The Supreme Court then addressed all the applicants' grounds of appeal. It held, inter alia, that there had not been any abuse of process by the District Court in entertaining the application for judgment in default of appearance. It found that there was nothing before it which showed that anything irregular or reprehensible had occurred. Nor did any question of setting aside the judgment against the first applicant/appellant ex debito justitiae arise as the service of the action under domestic law had been lawful. It further held that the District Court had not acted in contravention of any article of the Constitution or of the European Convention of Human Rights and that the Law of Necessity had no application to the case. With regard to the substance of the claim, the Supreme Court held, having examined with care all the material before it, that it was unable to reach the conclusion that the District Court had exercised its discretion wrongly or that it had been guided by the wrong legal principles. In this respect it had not been persuaded by the submissions of the applicants that they had a prima facie arguable defence. They would have had a prima facie arguable defence if they had shown, with evidence, that they were bona fide purchasers. They had, however, failed to prove this. The Supreme Court explained why this was the case. It also held that the trespass by the applicants on the property of the respondent/plaintiff was of a permanent nature. In the light of the applicable jurisprudence, the respondent/plaintiff had a good cause of action against the applicants despite the fact that he did not have possession of his property as this was because of the continuing unlawful Turkish occupation.
The Supreme Court therefore held that the appeal was unfounded. Costs were awarded in favour of the respondent/plaintiff.
2. Proceedings before the English Courts and the European Court of Justice
In the meantime, on 18 October 2005, the plaintiff applied under Regulation No. 44/2001 for recognition and enforcement in the United Kingdom of the judgments of the Nicosia District Court; namely, (i) the default judgment of 9 November 2004 and (ii) the judgment of 19 April 2005.
On 21 October 2005 Master Eyre ordered that the above judgments be registered in and be declared enforceable pursuant to the above Regulation.
The applicants brought a successful challenge against that order before the High Court under Article 43 of Regulation No. 44/2001. By order dated 6 September 2006 Mr Justice Jack allowed the appeal and set aside the registration of the two judgments. The applicants were successful on two grounds. The first was that Mr Justice Jack considered that the effect of Protocol No. 10 to the Act of Accession, was that the acquis, and therefore Regulation No. 44/2001, were of no effect in relation to matters which related to the northern part of Cyprus. Hence, the plaintiff could not rely on the acquis in order to secure the recognition of the judgments he had obtained. In this respect, he noted, however, that the land was within the territory of the Republic of Cyprus and that the case law of the Court showed that the “TRNC” laws could not be relied on by the applicants to deprive the plaintiff of his title to the land. The second ground arose from the circumstances in which service of the original proceedings was effected and the time that was permitted for entry of an appearance to the proceedings. He granted permission to appeal to the Court of Appeal.
The plaintiff lodged an appeal under Article 44 of Regulation No. 44/2001 to the Court of Appeal (Civil Division) (England and Wales).
By order dated 26 June 2007 the Court of Appeal referred to the European Court of Justice (“ECJ”) for a ruling on the issues raised, five questions being specified in the schedule to the order. The questions, in sum, concerned, firstly, the application of Regulation No. 44/2001 to a judgment relating to claims to the ownership of land situated in the northern area of Cyprus, in view of suspension of the application of the acquis communautaire in that area pursuant to Article 1 (1) of Protocol No. 10; and, secondly, the interpretation of Articles 35 (1) and 34 (1) and (2) of Regulation No. 44/2001 with regard to the possible grounds for non-recognition and non-enforcement within the meaning of these provisions.
Following an oral hearing before the ECJ[8], Advocate General Kokott delivered an opinion on 18 December 2008. In her view Article 1 (1) of Protocol No. 10 and Articles 34 (1) and (2) and 35 (1) of Regulation No. 44/2001 did not constitute grounds for refusal of recognition or enforcement of the default judgment. With regard to Article 34 (2) Advocate General Kokott concluded as follows:
“123. Article 34(2) of Regulation No. 44/2001 is to be interpreted as meaning that recognition and enforcement of a default judgment may not be refused by reference to irregularities in the service of the document which instituted the proceedings, if it was possible for the defendant, who initially failed to enter an appearance, to commence proceedings to challenge the default judgment, if the courts of the State where the judgment was given then reviewed the judgment in full and fair proceedings, and if there are no indications that the defendant's right to a fair hearing was infringed in those proceedings.”
On 28 April 2009, the Court (Grand Chamber) gave judgment. It ruled as follows:
“1. The suspension of the application of the acquis communautaire in those areas of the Republic of Cyprus in which the Government of that Member State does not exercise effective control, provided for by Article 1(1) of Protocol No. 10 on Cyprus to the Act concerning the conditions of accession [to the European Union] of ... the Republic of Cyprus ... and the adjustments to the Treaties on which the European Union is founded, does not preclude the application of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to a judgment which is given by a Cypriot court sitting in the area of the island effectively controlled by the Cypriot Government, but concerns land situated in areas not so controlled.
2. Article 35(1) of Regulation No. 44/2001 does not authorise the court of a Member State to refuse recognition or enforcement of a judgment given by the courts of another Member State concerning land situated in an area of the latter State over which its Government does not exercise effective control.
3. The fact that a judgment given by the courts of a Member State concerning land situated in an area of that State over which its Government does not exercise effective control, cannot, as a practical matter, be enforced where the land is situated does not constitute a ground for refusal of recognition or enforcement under Article 34(1) of Regulation No. 44/2001 and it does not mean that such a judgment is unenforceable for the purposes of Article 38(1) of that regulation.”
Further, the ECJ found, unlike the High Court, that Article 34 (2) of Regulation No. 44/2001, could not legitimately be relied upon to refuse recognition or enforcement of a default judgment as the applicants had been able and did commence proceedings to challenge the default judgment of the District Court. In particular, the ECJ stated as follows:
4. The recognition or enforcement of a default judgment cannot be refused under Article 34(2) of Regulation No. 44/2001 where the defendant was able to commence proceedings to challenge the default judgment and those proceedings enabled him to argue that he had not been served with the document which instituted the proceedings or with the equivalent document in sufficient time and in such a way as to enable him to arrange for his defence.”
The Court of Appeal then gave judgment on 19 January 2010 in favour of the plaintiff. It first noted that the answers of the ECJ to the questions put were such that, subject to the further issues raised before it, the appeal should be allowed and the orders of Master Eyre registering and declaring enforceable the Cypriot judgments reinstated. It then went on to examine the two issues raised by the applicants for determination. These concerned the denial of enforcement on the basis of public policy and the possibility that the ruling of the ECJ was affected by the apparent bias of the President of that court and whether further questions on these matters should be referred to the ECJ. The Court of Appeal found firstly, that there was no public policy applicable in the United Kingdom to which the recognition and enforcement of the judgments of the Cypriot court would be manifestly contrary and secondly, that there was no appearance of bias on the part of the President of the ECJ. It therefore considered that no reference on the above issues should be made to the ECJ.
From a letter dated 9 February 2010 sent to the Court by the applicants' lawyers it appears that the applicants have filed an appeal before the Supreme Court of the United Kingdom and that their application for stay of execution of the District Court's judgments was refused.
B. Relevant domestic law and practice
1. Relevant domestic law and practice concerning the Supreme Court
(a) The Supreme Court
The Constitution of the Republic of Cyprus provided for the existence of a Supreme Constitutional Court and a High Court (Parts IX and X of the Constitution respectively). Both these courts were each composed of a Greek, a Turkish and a neutral judge (Articles 133 and 153). The neutral judges, who were not subjects or citizens of Greece, Turkey and the United Kingdom (and the Colonies), presided over the courts (Articles 133 and 153). This Constitutional arrangement lasted only until the beginning of 1964; following the inter-communal problems in 1963, the neutral presidents vacated their posts without being replaced. The Administration of Justice (Miscellaneous Provisions) Law 33/1964 (“Law 33/64”) was enacted in order to address a situation of emergency and to set up the necessary judicial machinery for the continued administration of justice. By virtue of this law, the two highest courts, that is, the Constitutional Court and the High Court, were merged into one, the Supreme Court of Cyprus, to which the jurisdiction and powers of the two pre-existing courts were transferred. The establishment and operation of the new Supreme Court was held to be in conformity with the Constitution on the basis of recognised principles of the Law of Necessity (the Attorney-General of the Republic v. Mustafa Ibrahim and others, (1964) C.L.R. 195). The Turkish-Cypriot judges of the pre-existing courts participated in the composition of the Supreme Court for a few years following its establishment but subsequently withdrew.
(b) Appellate jurisdiction of the Supreme Court and the relevant procedural rules concerning appeals
The Supreme Court has jurisdiction to hear and determine all appeals from lower courts in civil matters (section 25 (1) of The Courts of Justice Law 1960 - Law no. 14/1960, as amended). In the exercise of its appellate jurisdiction the Supreme Court may uphold, vary or set aside the first instance decision or it may order a re-trial.
The relevant Civil Procedural Rules provide as follows:
Order 27 r. 1
“1. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Court at any stage that may appear to it convenient.”
Order 35 r. 4
“4. The appellant may, by his notice, appeal from the whole or any part of any judgment or order, and the notice shall state whether the whole or part only of the judgment or order is complained of, and in the latter case shall specify such part. The notice shall also state all the grounds of appeal and set forth fully the reasons relied upon for the grounds stated. Each ground of appeal shall be set out in a separate paragraph. After each ground of appeal the reasoning thereof shall be set out separately Any notice of appeal may be amended at any time as the Court of Appeal may think fit.”
Order 35 r. 8
“8. The Court of Appeal shall have all the powers and duties as to amendment and otherwise of the Trial Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Court. The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require. The powers aforesaid may be exercised by the said Court notwithstanding that the notice of appeal may be that a part only of the decision may be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may be just.”
Order 35 r. 15(2)
“15. (2) Where the appeal is only from part of a judgment or order, the hearing shall be confined to that part. Further, the hearing shall be confined to the grounds stated and the reasons set forth in the notice of appeal. But these provisions shall be subject to the discretion of the Court of Appeal”.
2. Jurisdiction of the domestic courts
Pursuant to Article 21(2) of Law 14/60 (as amended) where an action concerns any matter relating to real property that action shall be brought before the District Court of the district in which such property is situated.
By order of the Supreme Court published on 13 September 1974 in the Official Gazette of the Republic of Cyprus with Notification No. 1383 following the invasion of Cyprus, the territories of the districts of Kyrenia and Nicosia were reorganised. The power for merging of districts is granted to the Supreme Court by Section 3 (4) of Law 14/60 (as amended by Law 136/91).
3. Default of appearance
Under domestic law if the defendant does not enter an appearance in the 10 days following service of writ of summons instituting proceedings the plaintiff may apply for a default judgment. Entering an appearance is an act which does not require the defendant to set out the nature of any defence.
Under Order 17 r. 10 of the Civil Procedure Rules:
“Where judgment is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the Court in a proper case to set aside or vary such judgment upon such terms may be just”.
In proceedings to set aside a default judgment the claimant is required to establish the existence of a prima facie arguable defence concerning the merits of the case. The claimant is not required to prove his defence. Further, the claimant will be required to put forward an explanation concerning his/her failure to enter an appearance (see, for example, the Supreme Court's judgment of 25 October 2006 in the case of Elenitsa Constantinides v. Nur Habib Hissin, (2004) 1 C.L.R.1774; the Supreme Court's judgment of 18 September 2001 in the case of Bush and others v. Yiannis (2001) 1 C.L.R. 1432, relying on the case of Evans v. Bartlan (1937) 2 All ER 646).
C. Relevant European Community law
1. Protocol No. 10 on Cyprus
Article 1 of Protocol No. 10 on Cyprus provides as follows:
Article 1
1. The application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.
2. The Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the withdrawal of the suspension referred to in paragraph 1.
2. Regulation No. 44/2001
Regulation No. 44/2001 lays down rules governing the jurisdiction of courts in civil and commercial matters.
The relevant provisions of the Regulation provide as follows:
Recitals 16 to 18 (in the preamble)
“(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.
(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.
(18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.”
Article 22(1) (Section 6, entitled 'Exclusive jurisdiction', of Chapter II)
“The following courts shall have exclusive jurisdiction, regardless of domicile:
“1. In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated.
... .”
Article 34
“A judgment shall not be recognised:
1. If such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
2. Where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;....”
Article 35
“1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.
2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.
3. Subject to ... paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.”
Article 38
“1. A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.
....”
Article 45
“1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.
2. Under no circumstances may the foreign judgment be reviewed as to its substance.”
Article 43 of the Regulations provides for an appeal against the decision on the application for a declaration of enforceability. Article 44 provides for a further appeal.
COMPLAINTS
A. Application form of 13 June 2007
1. In their application form the applicants made numerous complaints under Article 6 § 1 of the Convention:
(a) the applicants complained about the examination of their case by the Supreme Court, claiming that they had been denied the right to have their civil rights and obligations determined by a tribunal established by law. In particular they asserted that the Supreme Court had (i) not carried out a point-by-point examination of their submissions; (ii) failed to examine their submissions as to the jurisdiction of the District Court in view of European Community Law; (iii) given an insufficiently reasoned judgment; and (iv) failed to examine and correctly interpret the applicable domestic law;
(b) they complained that the Supreme Court had violated their right to access to court and the principle of equality of arms, in particular in that they alleged that their lawyers had not received written notification of the appeal hearing and as a result they had not been able to adequately prepare and effectively present their case on appeal.
(c) they further claimed that the Supreme Court had not been composed in accordance with the applicable Constitutional provisions as only Greek-Cypriot judges had sat in the case.
(d) they also complained that they had not had a fair hearing as the domestic courts had not been disposed to act fairly and impartially towards the applicants given the political situation in Cyprus and, in particular, the controversial property issues.
2. Lastly, the applicants complained under Article 13 of the Convention that as a result of the failure of the Supreme Court to give the applicants' lawyers adequate notification for the appeal hearing and the shortcomings in the reasoning of the Supreme Court's judgment, they had been deprived of any practical means of enforcing their right of access to court and of any appropriate redress.
B. Memorandum of 8 August 2007
On 20 August 2007 the applicants lodged a memorandum dated 8 August 2007. In the accompanying letter dated 9 August 2007 they stated that this memorandum explained “more clearly and in a cohesive way the facts and the legal points on which the applicants rely”. They also added complaints under Article 6 concerning mainly the fairness of the District Court proceedings and the findings in that court's judgments. They further complained under Article 14 that the courts had discriminated against them because they were English.
THE LAW
A. Complaints submitted in the application form of 13 June 2007
1. The applicants raised various complaints under Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
(a) The applicants complained that the Supreme Court had not properly examined their case. In this regard they first complained that the Supreme Court had failed to carry out a point by point examination of their submissions. Secondly, they complained that the Supreme Court had not considered their submissions as to the jurisdiction of the District Court in the light of European Community Law. They referred to, inter alia, O. 27 r.1, O.35 r.4 and O.35 r.8 of the Civil Procedure Rules. Thirdly, they claimed that the Supreme Court's judgment was not sufficiently reasoned given the detailed submissions of the parties and the complexity of the legal issues involved. Fourthly, they complained that the Supreme Court had failed to examine and correctly interpret the applicable domestic law.
The Court reiterates that although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see, for example, García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I and Klemeco Nord AB v. Sweden, no. 73841/01, § 39, 19 December 2006); a party does not have an absolute right to require reasons to be given for rejecting each of his arguments nor is the Court called upon to examine whether arguments are adequately met (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288).
In the present case, the Court notes that the applicants in their appeal relied on eight grounds. The Supreme Court in its judgment, which was 10 pages long, took due account of and examined all the grounds of appeal raised by the applicants and gave clear reasons for their dismissal; for some the reasoning being more extensive than for others. The Supreme Court held that the appeal was unfounded after having been satisfied that the proceedings before the District Court had been fair and that that court had not exercised its discretion wrongly or been guided by the wrong principles of law.
The applicants therefore may not validly argue that the Supreme Court did not properly examine their arguments or that its judgment lacked reasons.
With regard to the applicants' complaint that the Supreme Court had not considered their arguments concerning jurisdiction in the light of European Community Law, the Court notes that these arguments were not raised by the applicants in their grounds of appeal at all. It was for this reason that they were not examined by the Supreme Court. The Court notes that the applicants, who were legally represented throughout the whole of the domestic proceedings, as well as in the proceedings before the Court, have not provided any reasons to justify their failure to raise these points in their grounds of appeal and have not explained why they did not at any stage during the proceedings make an application to amend the grounds in order to include them (see, mutandis mutandis, Kontos v. Greece, (dec.), no. 18933/03, 26 May 2005). The Court notes that the applicants' lawyers only raised these arguments in their written address, before dealing with the grounds of appeal, and attempted to amend the appeal grounds only after the appeal proceedings were concluded and judgment was already reserved. Even then, it is clear from the relevant documents submitted before the Court and the verbatim record of the proceedings, that the applicants' lawyers did not make any effort to account for their omission to amend their grounds of appeal earlier or to explain the delay in raising these points before the Supreme Court. In fact, the applicant's lawyer, Mr M.A., simply withdrew the application for amendment on 21 December 2006. In this connection, the Court points out that the applicants had already put their arguments concerning Protocol No. 10 and Regulation No. 44/2001 before the High Court in the United Kingdom. The judgment of that court, which was favourable to the applicants and on which they also relied in their application of 18 December 2006 to the Supreme Court, was delivered on 6 September 2006, that is, well before the hearing of the appeal was held before the Supreme Court. These arguments therefore could have clearly been raised before the conclusion of the appeal proceedings.
Given these circumstances the Court does not see any reason to find that in reaching its decision not to examine the applicants' arguments on jurisdiction the Supreme Court acted in an arbitrary manner.
In so far as the applicants are challenging the interpretation and application of the domestic law by the Supreme Court, the Court reiterates that it is not its task to act as a court of appeal or as a court of fourth instance, against the decisions of the domestic courts. It is the role of the latter to interpret and apply the relevant rules of national procedural and substantive law. Furthermore, it is not the Court's function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, García Ruiz , cited above, § 28). In the present case, the Court does not find any indication of unfairness or arbitrariness in the examination of the case by the Supreme Court and its interpretation of the applicable domestic law. The mere fact that the applicants are dissatisfied with the outcome of the proceedings cannot of itself raise an arguable claim of a violation of this provision.
The Court therefore finds that the applicants' complaints under this head are manifestly ill-founded and should be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
(b) The applicants further complained that their lawyers had not received written notification of the appeal hearing; such notification had been made by a telephone call. They submitted that one of their lawyers had just happened to be at the Supreme Court on the day of the hearing representing other clients when he was called upon to appear for the applicants. Consequently, their lawyers had not been able to adequately prepare and effectively present their case.
The Court recalls that the principle of equality of arms, which forms a component of the broader concept of a fair hearing, requires that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, the De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997‑I, § 53). As the Court has previously found, the principle of equality of arms would be devoid of substance if a party to the case were not notified of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise a right to appear established in domestic law (see for example, Zagorodnikov v. Russia, no. 66941/01, § 30, 7 June 2007).
Turning to the facts of the present case, the Court notes that one of the applicants' lawyers, Mr M.A., was present at the appeal hearing and that there is no indication that he did not know that the appeal hearing would take place and was not thus prepared to address the court. As can be seen from the verbatim record of the hearing of 13 December 2006, the applicants' lawyer did not bring this matter to the notice of the Supreme Court and did not request an adjournment or object to the appeal hearing taking place. In fact the Court notes that the applicants have not claimed that such an adjournment was requested and have not explained why such a request was not made, if indeed their lawyer had not known that the hearing would take place on that day and did not have the case file with him. Hence, in the circumstances, it cannot be said that the essence of the applicants' right of access to a court was impaired or that the applicants were unable to participate properly and in conformity with the principle of equality of arms in the proceedings before the Supreme Court.
To the extent that the applicants might be understood to claim that notification of the appeal hearing should have been in writing, the Court notes that Article 6 of the Convention does not provide for specific forms of service of documents. The question is whether an individual's access to court has been denied in the circumstances of the case (see, generally, Hennings v. Germany, judgment of 16 December 1992, Series A no. 251-A; Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001). This is not, however, the situation in the present case where the applicants were able to present their case and have their appeal examined.
It follows that this complaint must also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
(c) With regard to the applicants' complaint that the Supreme Court was not composed in accordance with the applicable constitutional provisions, the Court observes that it is clear from the cases against Cyprus decided by this Court, that the Supreme Court constitutes a tribunal within the meaning of Article 6 § 1 of the Convention. It further refers to the case of Aziz v. Cyprus, Greece, Turkey and the United Kingdom ((dec.), no. 69949/01, 23 April 2002) in which a similar complaint was raised and was rejected. As noted in that case, the Supreme Constitutional Court ceased to function due to the anomalous situation in Cyprus and the Supreme Court took over the competence of that court by virtue of Law 33/64, a law declared valid and constitutional by the Supreme Court, at a time when it was composed of both Greek-Cypriot and Turkish-Cypriot judges.
It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
(d) Lastly, the applicants complained that they had been denied a fair hearing. In this respect they claimed that the domestic courts had not been disposed to act fairly and impartially towards them given the political situation in Cyprus and, in particular, the controversial property issues. They pointed out, in general, that there had been adverse press reports against those who had dealings with the Turkish-Cypriot authorities in respect of property which in 1974 had been registered in the names of Greek Cypriots and that the judges could not dissociate themselves from Government policy. Furthermore, they argued that the lack of impartiality of the domestic courts was evident from the superficial and deficient manner in which the case had been examined. They alleged in this respect that the domestic courts had failed to consider significant issues and had denied them adequate time as well as the opportunity to put forward their case.
First, the Court cannot accept the allegation that the Cypriot courts, as such, were not and could not be impartial and/or independent or that the case was influenced by political motivations (see, mutatis mutandis, Protopapa v. Turkey, no. 16084/90, § 87, 24 February 2009). The Court further notes that the applicants' complaints as to adverse press reports are very general. Nor have the applicants argued that a media campaign was waged against them personally so as to influence the outcome of their case. Moreover, the applicants have not submitted any evidence of subjective bias on the part of the domestic courts. The applicants' arguments as to alleged prejudice against them concern rather the domestic courts' examination of their case and the application of domestic law. The Court, however, finds no indication that the domestic courts' decisions were arbitrary, that the applicants were not able to properly argue their case or that the proceedings were otherwise unfair. The Court points out that the applicants were able to challenge the default judgment of the District Court and were subsequently able to appeal.
Accordingly this complaint must also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicants complained of a violation of their rights under Article 13 of the Convention in view of the fact that they had not received adequate notification of the appeal hearing and the failings in the reasoning of the Supreme Court's judgment. This provision provides as follows:
“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.”
In view of its conclusions above in respect of the applicants' complaints under Article 6 of the Convention, the Court finds that no separate issue arises under Article 13.
B. Complaints submitted in the memorandum of 8 August 2007
The Court notes that by a memorandum dated 8 August 2007, the applicants submitted further complaints, largely directed to the alleged unfairness of the proceedings before the District Court and the findings of that court in its judgments of 9 November 2004 and 19 April 2005. They also alleged that the domestic courts had discriminated against them because they were English, in breach of Article 14 of the Convention.
The Court recalls that, pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter “within a period of six months from the date on which the final decision was taken”. Furthermore, where a complaint is not included in the initial application, the running of the six-month time-limit is not interrupted until the date when the complaint is first introduced to the Court (see, for example, Allan v. the United Kingdom, no. 48539/99, ECHR 2002-VIII).
The Court notes that the above complaints were not raised in the applicants' application form to the Court but were first submitted in the memorandum which is dated 8 August 2007. The final judgment of the Supreme Court, however, was delivered on 21 December 2006; consequently, the six months time-limit expired on 21 June 2007.
Accordingly, the Court finds that these complaints are out of time and must therefore be rejected as inadmissible pursuant to Article 35 §§ 1 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
[1] No explanation was given before the High Court by the applicant’s lawyer. See § 45 of the High Court’s judgment (referred to below).
[2] The applicants also appointed a second lawyer to represent them in the domestic proceedings.
[3] On the notice of appeal the grounds of appeal were wrongly numbered as nine.
[4] The applicants’ lawyers filed an outline address in Greek and English on 25 November 2005. It appears from the verbatim record of the proceedings that subsequently, the applicants’ lawyer filed another text in Greek on 30 January 2006. At the hearing of 14 March 2006 the applicants’ lawyers informed the Supreme Court that the latter was the text to be taken into account for the purposes of the appeal.
[5] Protocol No 10 on Cyprus to the Act concerning the conditions of accession [to the European Union] of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded.
[6] Verbatim record of 14 March 2006.
[7] Delivered on 6 September 2006; see below.
[8] The plaintiff, Mr and Mrs Orams, the Greek, Polish and Cypriot Governments and the Commission of the European Communities submitted observations before the ECJ.
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