AS TO THE ADMISSIBILITY OF
Application No. 20492/92
by Nicos SHACOLAS
against Cyprus
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 March 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 26 May 1992 by
Nicos SHACOLAS against Cyprus and registered on 13 August 1992 under
file No. 20492/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Cypriot citizen born in 1927 and residing at
Limassol. Before the Commission he is represented by George Cacoyiannis
and Pambos Ioannides, lawyers practising in Limassol.
The facts of the case as they have been submitted by the
applicant can be summarised as follows:
The applicant is a major shareholder of two companies registered
in Limassol which he represents. The companies entered into a contract
of guarantees with the Federal Bank of Lebanon.
On 23 January 1986 the Federal Bank of Lebanon instituted
proceedings against the applicant before the District Court of Nicosia
for various sums claimed on the basis of the contract in question. The
applicant filed a counterclaim for damages for an alleged libellous
letter sent on behalf of the Federal Bank of Lebanon to the Central
Bank of Nigeria. On 11 January 1989 the District Court gave its ruling
(No. 747/86) excluding the counterclaim since it "might be conveniently
disposed of in an independent action". The Court found that the
counterclaim affected the applicant's interests in Nigeria and did not,
therefore, relate to the subject matter of the Bank's action.
The applicant appealed against the above ruling of the District
Court of Nicosia. By its judgment of 21 April 1992 (No. 7804/92) the
Supreme Court confirmed the ruling of the District Court to exclude the
counterclaim on the ground that as it was not related to the Bank's
action, it might provoke undue delays in the proceedings.
COMPLAINTS
The applicant complains that as a result of the Court's decision
not to examine his counterclaim he has been deprived of his right to
a fair trial. In particular, while the plaintiffs instituted their
action in the Cypriot courts, the applicant was prevented from raising
a counterclaim in the same action and was not, therefore, given the
equality of arms enshrined in Article 6 para. 1 of the Convention.
Moreover, he was prevented from having access to the Court as
regards his libel claim against the plaintiff. He again invokes Article
6 para. 1 of the Convention.
THE LAW
The applicant complains that while the Federal Bank of Lebanon
could bring an action against him he was refused the possibility to
bring his libel claim against the Bank before the Cypriot Courts. He
was, thus, placed under a procedural disadvantage vis-a-vis his
opponent.
The applicant invokes Article 6 para. 1 (Art. 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 and public hearing
within a reasonable time by an independent and impartial
tribunal established by law..."
This provision guarantees, inter alia, the right of access to a
court, that is the right to bring an action before a court as regards
a dispute over civil rights and obligations (cf. Eur. Court H.R.,
Philis judgment of 27 August 1991, Series A, no. 209, para. 59).
Moreover, Article 6 para. 1 (Art. 6-1) of the Convention implies that
each party shall have a reasonable opportunity of presenting his case
to the Court under conditions which do not place him at a substantial
disadvantage vis-a-vis his opponent. The requirement of equality of
arms presupposes a "fair balance" between the parties (cf. Eur. Court
H.R., Feldbrugge judgment of 26 May 1986, Series A no. 99, p. 17, para.
44 and Eur. Court H. R., Dombo Beheer B.V. judgment of 27 October 1993,
Series A no. 274, p. 15, para. 33).
The Commission therefore has to examine whether, as a result of
the exclusion of his counterclaim, the applicant was placed at a
substantial disadvantage vis-a-vis his opponent and, if so, whether
this has affected the equality of arms in such a way as to render the
proceedings as a whole unfair within the meaning of Article 6 para. 1
(Art. 6-1).
The Commission recalls that the Courts of Cyprus rejected the
applicant's counterclaim on the ground that it was not related to the
main action. It finds no indication that the exclusion of the
applicant's counterclaim prevented him from effectively presenting his
defence in respect of the main action or that he was otherwise unfairly
disadvantaged.
Moreover since the applicant can bring a separate action, as
regards his counterclaim in the appropriate jurisdiction, the essence
of his right of access to court has not been affected.
Therefore, the application, as it has been submitted, does not
disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1).
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
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