FIRST SECTION
DECISION
Application no. 35686/08
by Vereggaria PAPAKOKKINOU
against Cyprus
The European Court of Human Rights (First Section), sitting on 11 March 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 17 June 2008,
Having regard to the declaration submitted by the respondent Government on 17 November 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, Ms Vereggaria Papakokkinou, is a Cypriot national who was born in 1930 and lives in Nicosia. She is represented before the Court by Ms A. Papakokkinou, a lawyer practising in Nicosia. 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 26 April 2001 the applicant filed an application (no. K 6/2001) before the Rent Control Tribunal of Limassol-Paphos (“RCT”), claiming unpaid rents and damages for breach of a tenancy agreement.
On 16 September 2005 the RCT dismissed the application.
On 31 October 2005 the applicant lodged an appeal against the first instance judgment before the Supreme Court (appeal no. 319/2005) challenging the findings of the first instance court. Furthermore, she claimed a violation of her rights under Article 30 of the Constitution and Article 6 § 1 of the Convention due to the length and the fairness of the first instance proceedings. In respect to the latter, the applicant claimed that certain of the hearings of her application had not been public and that the RCT had not been impartial.
The appeal was dismissed by the Supreme Court on 20 December 2007. Upon examining the applicant’s grounds of appeal, the Supreme Court upheld the findings of the first instance court. With regard to the applicant’s complaints concerning fairness, the Supreme Court found that these were completely unfounded. There was no indication in the minutes of the proceedings of any partiality on the part of the first instance court or that any of the hearings had not been public. In connection to the latter, the Supreme Court noted that the applicant had not at any point complained about or objected to any of the hearings held. Furthermore, as regards the applicant’s complaint concerning the length of the first instance proceedings the court found that the adjournments granted during these proceedings had been reasonable as they mainly concerned health problems suffered by both parties and one of the lay members of the RCT. The Supreme Court also noted in this respect that the applicant had consented to all requests for an adjournment by the defendant. Taking into account all the circumstances of the case, the Supreme Court considered that the length of the first instance proceedings had not been excessive and that the fairness of the trial had not been affected.
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 the proceedings before the RCT.
3. Moreover, the applicant complained that the judgments of the domestic courts were in violation of Article 17 of the Convention.
4. Finally, the applicant complained that as a result of the Supreme Court’s judgment her rights under Article 1 of Protocol No. 1 had been infringed.
THE LAW
A. Length of proceedings
The applicant complained about the length of the proceedings. She 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 letter dated 17 November 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 5,500 (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 also states that it has introduced in the legislature (House of Representatives) on 14.7.09, specific legislation for creating national 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. The relevant Bill (entitled “A Law Providing Effective Remedies for Violation of the Right to have Civil Rights and Obligations Determined within a Reasonable Time”) is presently examined by the legislature; it is expected that it will be approved by the legislature and enter into force at the end of next month or at the beginning of January.
6. The Bill applies to complaints about the length of court proceedings in all civil and administrative cases (at all levels of jurisdiction); complainants may institute civil proceedings in district courts for violation of the right and payment of compensation and may also do so where the complaint is with respect to court proceedings concluded before the law enters into force.
7. Complaints may also be made respecting the length of the proceedings; a party may make an application to another court at any stage of the pending proceedings, complaining of the their length and claiming compensation; the complainant is entitled to examination and judgment on his complaint , and to compensation for the violation; such an application may also be made respecting complaints about the length of proceedings which are pending when the law enters into force; in addition to compensation, directions must be given by the Supreme Court for expediting the pending proceedings; for this purpose the trial court must transmit its judgment to the Supreme Court.
8. The Bill provides that in determining the issues of violation and assessment of compensation in the above domestic proceedings the courts must take into account the case-law of the European Court of Human Rights
9. 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 16 January 2010 the applicant rejected the Government’s initiative and asked the Court to proceed with the examination of her complaint. She claimed in this respect that the Government was trying to avoid its Convention obligations and noted that the law proposed by the Government was not in force. Furthermore, she expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
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 Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska 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 complained under Article 6 that the proceedings before the RCT had been unfair. Furthermore, she complained that the judgments of the domestic courts infringed Article 17 of the Convention. Lastly, she complained of a violation of her rights under Article 1 of Protocol No. 1 as a result of the Supreme Court’s judgment
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.
André WampachChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy