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FIRST
SECTION
CASE OF PAPAKOKKINOU v. CYPRUS
(Application
no. 4403/03)
JUDGMENT
STRASBOURG
14
December 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Papakokkinou v. Cyprus,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 23 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4403/03) against the
Republic of Cyprus lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by two Cypriot nationals, Mrs Aleka Papakokkinou and Mrs Vereggaria
Papakokkinou (“the applicants”), on 20 May 2003.
- The
second applicant was represented by the first applicant, 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.
- On
18 October 2005 the
Court decided to communicate the complaint concerning the length of
the proceedings. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1945 and 1930 respectively and live in
Nicosia.
- The
facts of the case, as submitted by the parties and as derived from
the minutes of the proceedings, may be summarised as follows.
A. Proceedings before the District Court of Nicosia
- On
26 March 1993 the applicants lodged a civil action (no. 2633/93)
before the District Court of Nicosia against three persons,
requesting damages for trespass that had occurred in April 1989 over
certain premises occupied by them, by virtue of a tenancy agreement
and used for storing various military clothing and material. The
police had stopped the defendants following a trespass complaint but
had not brought criminal proceedings against them. On the one hand,
the applicants maintained that the defendants had trespassed the said
premises and had taken away some of the clothing and material,
causing damage to their property. On the other hand, the defendants
claimed that they had entered the applicants' premises under the
false assumption that these premises were covered by a tenancy
agreement they had just concluded.
- Between
26 March 1993 and 9 January 1995 the parties filed their pleadings.
- On
11 January 1995 the case was set for directions for 15 February 1995
and then for hearing for 23 October 1995. The case was then adjourned
on the application of one of the defendants until 1 November 1995 and
then, until on 14 February 1996, following the failure of the parties
to reach an agreement in order to limit the trial issues.
- On
14 February 1996 the case was adjourned until 6 June 1996 following
an application by one of the defendants for amendment of their
statement of defence.
- On
6 June 1996 the applicants requested an adjournment and in the
absence of objection on the defendants' part, the case was fixed for
hearing on 4 November 1996. From that date, the court itself
adjourned the case twice until 17 April 1997. On that date the
defendants requested an adjournment in view of the fact that in the
meantime they had filed an application for the amendment of their
statement of defence and an application raising a preliminary
objection. The applicants objected to the adjournment but since the
court also considered that it did not have time to hear the case, it
adjourned the case until 13 June 1997. The applicants then requested
that the case be fixed on an earlier date since it was an old case
but the court stated in reply that this was the only free date and
that, in particular, in the month of May it was dealing with actions
that had been filed before the present one.
- Until
17 September 1997 the court dealt with the defendants' applications
and objections thereto. By an interlocutory decision dated 27 June
1997 the court dismissed the defendants' application raising a
preliminary objection and, further, by an interlocutory decision
dated 17 September 1997, it granted the defendants leave to
amend their defence.
- Following
a request by the applicants for a hearing date, the case was set for
27 October 1997. On that date, the hearing was adjourned by the court
itself until 28 November 1997. The hearing of the case commenced on
that date and was then set for 5 December 1997. On the latter date,
it was adjourned at the applicants' request until 15 December 1997,
in the light of an application that they had in the meantime filed
for the amendment of their statement of claim. Taking into account
the fact that the defendants intended to file an objection to the
application, the court set the case for hearing for 22 January 1998.
On the latter date, the defendants informed the court that they would
not be filing an objection and thus, the application was granted. The
case was then set for hearing for 9 March 1998 and was adjourned
until 6 April 1998 at the defendants' request.
- From
6 April 1998 until 20 October 1998 the court dealt with four
interlocutory applications: two were lodged by the defendants for the
amendment of their statement of defence and two were lodged by the
applicants concerning the amendment of the title of the action by
adding a fourth defendant and the dismissal of the defendants'
amended statement of defence as being out of time. The court accepted
the first three applications and rejected the last one. Amended
pleadings were also filed within this period.
- On
20 October 1998 the case was set for hearing for 1 December 1998 in
view of the filing of additional pleadings by the fourth defendant
and the parties.
- The
hearing of the case was resumed on 1 December 1998 and was concluded
on 28 May 1999. Extensive evidence was given, in particular by the
applicants. Furthermore, during the final addresses, the applicants
withdrew the action against the second defendant.
- In
its judgment of 30 September 1999 the District Court found that
trespass had occurred by the third and fourth defendants. However, it
dismissed the applicants' version of the facts, to the extent that it
contradicted the defendants' version, as being unsubstantiated and
that the testimony that had been given by the second applicant had
not been precise or credible. The court further noted that the
examination of the case by the police had been limited.
- The
court awarded the applicants the amount of 700 Cyprus pounds (CYP)
for trespass to the premises, CYP 250 for the removal of certain
clothing and CYP 50 for damage caused to the front door, plus costs
and expenses. Interest was awarded on the above amounts. The court
considered that the behaviour of the defendants did not justify an
award of punitive or exemplary damages since their wrongdoing had
been marginal. The action was dismissed with regard to the first and
second defendants and costs were awarded in their favour.
B. Proceedings before the Supreme Court
- On
10 November 1999 the applicants lodged an appeal with the Supreme
Court (civil appeal no. 10659). The applicants' appeal notice
contained sixty-six grounds of appeal in which they essentially
challenged the findings of the first instance court, its assessment
of the evidence and its award of damages and costs. The applicants
further claimed that the District Court's judgment had not been
adequately reasoned and that the police had been negligent handling
the case by not taking the third defendant's fingerprints.
- By
letter dated 11 November 1999 the Registrar of the Nicosia District
Court informed the Chief Registrar of the Supreme Court that the
minutes of the proceedings would be prepared and sent to the Supreme
Court by May 2000.
- Two
reminders were sent by the Chief Registrar to the District Court on 9
June 2000 and 11 August 2000 respectively, noting the delay and
requesting that the minutes be sent immediately.
- On
3 September 2000, Judge Kallis, instructed that the Chief Registrar
contact the President of the District Court with regard to the
minutes and that, in the absence of a reply within one week, the
matter be put before the Supreme Court. A notice dated 5 September
2000 was sent by the Registrar of the Department of Civil and
Criminal Appeals to the Chief Registrar. The latter then sent a
letter dated 18 September 2000 to the President of the District Court
requesting that the minutes be sent to the Supreme Court by 9 October
2000 to enable it to proceed with the examination of the appeal. The
minutes were sent to the Supreme Court on 28 September 2000.
- The
appeal was fixed for first appearance on 23 November 2000. On that
date the applicants requested additional time for the filing of the
outline of their address. The court granted an extension of fifteen
days to the parties and fixed the hearing of the appeal for 20 June
2001. In the meantime, on 27 March 2001, the applicants
requested an adjournment of the hearing until the end of the summer
holidays. The court then set the case for 20 September 2001.
- Subsequently,
the case was adjourned twice: once at the applicants' request for
health reasons and once by the court itself due to the absence of one
of the judges for health reasons.
- The
hearing of the appeal took place on 28 May 2002 and judgment was
reserved.
- On
22 November 2002 the Supreme Court delivered a detailed judgment
dismissing the appeal and upholding both the factual and legal
findings of the first instance court and its assessment of damages
and costs. Amongst other things, it found that the District Court had
correctly evaluated the evidence before it and had come to the right
conclusions. It also found that the applicants' argument that the
District Court's judgment was not adequately reasoned was manifestly
ill-founded. In this connection, it pointed out that the judgment had
been exhaustive and duly reasoned. Finally, although the court
observed that the investigation carried out by the police had not
been complete, it concluded that the fact that the police had not
taken the third defendant's fingerprints did not affect the
conclusions of the first instance court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 26 March 1993 and
ended on 22 November 2002. It thus lasted nine years, seven months,
and thirty days for two levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicants alleged that there had been long periods of delay in the
proceedings attributable to the domestic courts and that the overall
length of proceedings was excessive.
- The
Government argued that the domestic courts had examined the case with
reasonable efficiency and that there had not been any unreasonable
delay attributable to the authorities.
- The
Court notes that the applicants were responsible for certain of the
delays in the proceedings by requesting adjournments and lodging
various interlocutory applications (see paragraphs 10, 12, 13 and 22
above). The Court considers however, that the applicants' conduct
does not in itself justify the length of the proceedings on the
whole.
- The
Court observes that the case does not appear as such to have been
particularly complex factually and legally. Furthermore, before the
District Court of Nicosia there were at least two periods of
significant inactivity due to adjournments attributable to the court
itself: a period of approximately eight months when on 15 February
1995 the court set the case for hearing for 23 October 1995 and a
period of more than five months following two consecutive
adjournments by the court from 4 November 1996 until 17 April
1997 (see paragraph 10 above).
- Finally,
although the appeal before the Supreme Court was lodged on 10
November 1999, the minutes of the first instance proceedings were
sent to the Supreme Court on 28 September 1999 despite the reminders
which were sent to the Registrar of the District Court by the
Registrar of the Supreme Court for this purpose (see paragraphs 19-21
above). This delay has not been explained. As a result there was a
period of inertia following the lodging of the appeal amounting to
more than ten months. This in itself presents a substantial delay in
the proceedings (see also in this regard the case of Waldner v.
Cyprus, no. 38775/02, § 42, 19 January 2006). In
this respect the Court recalls that Article 6 § 1 of the
Convention imposes on the Contracting States the duty to organise
their judicial system in such a way that their courts can meet each
of its requirements (see, among many other authorities, Frydlender,
cited above, § 45, and Massa v. Italy, judgment
of 24 August 1993, Series A no. 265-B, § 31).
- The
Court finds, having regard to all the circumstances of the case and
having taken into account the overall duration of the proceedings,
that in the instant case the length of the proceedings before the
domestic courts was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Admissibility
- The
applicants also complained of a violation of their rights under
Articles 6 and 13 of the Convention and 1 of Protocol No. 1, in
respect of the fairness of the proceedings, the award of damages by
the domestic courts, the protection of their property rights and the
alleged lack of a remedy for their claims.
- In
the light of all the material in its possession, and in so far as the
matters complained are within its competence, the Court considers
that the present case does not disclose any appearance of a violation
of any of the above Articles of the Convention and its Protocols.
- In
view of the above, it follows that these complaints are inadmissible
under Article 35 § 3 of the Convention as being manifestly
ill-founded, pursuant to Article 35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed CYP 18,000 in respect of pecuniary damages for
loss caused, inter alia, by the delays on the part of the
police and the domestic courts in dealing with the case, the
adjournments and interruptions of the hearings and the loss of
important exhibits from the Registry of the Nicosia District Court
which they intended to use as evidence. The applicants further
claimed the sum of CYP 16,000 for non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicants must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards them EUR 7,000 each under that head, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
- The
applicants also claimed CYP 9,000 for costs and expenses incurred in
the proceedings in general; they did not request a specific sum for
those incurred before the domestic proceedings and those incurred
before the Court. Furthermore, the costs were not itemised and no
bills of costs or receipts were submitted.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see Iatridis v. Greece (just satisfaction) [GC], no.
31107/96, § 54, ECHR 2000-XI). In the present case, regard being
had to the information in its possession (see paragraph 43 above) and
the above criteria, the Court rejects the applicants' claim for costs
and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention concerning the excessive length of the proceedings
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage,
to be converted into Cyprus pounds at the rate applicable at the date
of settlement, plus any tax that may be chargeable on the above
amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 December 2006 pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
