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FIRST
SECTION
CASE OF ARESTI CHARALAMBOUS v. CYPRUS
(Application
no. 43151/04)
JUDGMENT
STRASBOURG
19
July 2007
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 Aresti Charalambous 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 N. Vajić,
Mr A.
Kovler,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 28 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 43151/04) 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 a Cypriot national, Mr Aresti
Charalambous (“the applicant”), on 17 November 2004.
- The
applicant was represented by Drakos S. &
Associates, lawyers practising in
Nicosia. The Cypriot Government (“the
Government”) were represented by their Agent, Mr P. Clerides,
Attorney-General of the Republic of Cyprus.
- On
16 January 2006 the
Court decided to communicate the complaints under Articles 6 § 1
and 12 of the Convention to the Government. 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
applicant was born in 1972 and lives 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 Family Court of Nicosia
- On
14 August 1997 the applicant married a Romanian citizen. On
28 September 1998 he filed a petition for divorce (no. 382/98)
with the Family Court of Nicosia.
- On
16 October 1998 the applicant filed an ex parte application
for leave to publish the divorce petition in an English daily
newspaper. Leave was granted by the court on 19 October 1998.
- On
24 November 1998 the court fixed the case for mention for 21 December
1998 and instructed the counsel of the applicant's former wife
(hereinafter “the respondent”) to file her defence by
that date. This was filed on 2 March 1999.
- On
15 December 1999 the respondent filed an application raising certain
preliminary points of law to be tried before the main petition. The
application was set for 21 December 1999 and then for 31 January
2000. In the meantime, on 27 January 2000, the applicant filed an
objection to the application.
- From
31 January 2000 until 23 October 2000 both the main divorce and
interim proceedings were adjourned eight times. Two of these
adjournments were by the court itself: from 15 May 2000 until 22 May
2000 and from 23 September 2000 until 23 October 2000. It appears
that the remaining adjournments were by the parties' mutual
agreement.
- During
the above period, on 21 July 2000, a deportation order was issued
against the respondent by the immigration authorities. On 4 September
2000 the respondent filed an administrative recourse before the
Supreme Court (first instance administrative jurisdiction)
challenging the order, requesting an interim application for the
suspension of the deportation order in order to be able to attend the
divorce proceedings and testify before the Family Court and a
declaration recognising her right to have her residence permit
renewed.
- On
23 October 2000 the respondent withdrew her application of
15 December 1999 and upon agreement by both parties the hearing
of the divorce petition was adjourned until 19 December 2000.
- The
hearing of the petition commenced on 19 December 2000 and was
completed on 13 March 2001. Three hearing sessions were held with one
adjournment at the request of the respondent's lawyer.
- In
the meantime, on 5 March 2001, the Supreme Court delivered an
interlocutory judgment and rejected the respondent's recourse. The
Supreme Court noted that the respondent's residence permit had
expired on 7 September 1998 and that since then she had been
staying in Cyprus without a permit. Nonetheless, she had not been
deported pending the proceedings in another recourse she had filed
against the administrative authorities' decision not to grant her
another permit. This recourse had been rejected by the Supreme Court
on 5 July 2000 and this was the reason that the deportation order of
21 July 2000 had been issued. Furthermore, the Supreme Court observed
that to grant the respondent her application for an interim order for
the suspension of the deportation order would in essence result in
the grant of permission to stay, which was outside the competence of
the Court. The right of any person, whether Cypriot or alien, to be
present at proceedings before a court, was not related to the
question of permission to stay. The applicant, in her recourse, had
linked the two, but the need for her to be present at the trial
before the Family Court would be regulated by the requirements of the
trial and not according to a general obligation of the Republic to
grant her permission to stay in the Republic for the duration of the
trial, as she asserted.
- The
respondent was deported on 7 March 2001.
- On
13 March 2001 the Nicosia Family Court issued an ex-tempore decision
granting the applicant's divorce petition.
B. Proceedings before the Supreme Court
- On
23 April 2001, the applicant's former wife who had been deported
(hereinafter “the appellant”), filed an appeal
(no. 137/01) before the Supreme Court (Family Court Appeal
Jurisdiction). The minutes of the first instance proceedings were
received by the Supreme Court on 23 July 2001.
- On
3 October 2001 the applicant filed an application for security of
costs. The court fixed this application for hearing for 9 November
2001. On the latter date, the court fixed the application for further
directions for 5 December 2001 and instructed the appellant to
file her written objection by the above date. This was filed on 4
December 2001.
- On
5 December 2001 the application was fixed for hearing for 11 January
2002.
- In
the meantime, on 23 December 2001, the appellant filed the outline of
her address.
- On
11 January 2002 the court heard the appellant's objection to the
security of costs application and it reserved its decision on the
matter. It also fixed the appeal proceedings for pre-trial for 8
November 2002.
- In
the meantime, on 27 June 2002, the court delivered its decision
concerning the application for security of costs.
- On
5 November 2002 the appellant filed her application for leave to
amend her grounds of appeal. This was granted by the court on 8
November 2002. On the latter date, the parties were also directed to
file their amended notices of appeal and the outlines of their
addresses.
- The
appellant filed her amended grounds of appeal on 18 November 2002 and
the applicant filed his written address outline on 6 February 2003.
- On
27 May 2003 the Supreme Court fixed the appeal case for hearing for
29 May 2003. On the latter date the appellant's counsel made an oral
request for the exclusion of one of the judges from the composition
of the court. The specific judge had rejected her administrative
recourse against the deportation order (see paragraph 14 above).
Consequently, the hearing was adjourned until 8 July 2003 at the
appellant's request.
- On
7 July 2003 the appellant's counsel requested a fifteen-day
adjournment because of health problems. On 9 July 2003 the Supreme
Court granted the adjournment until 11 September 2003.
- On
18 September 2003 the Supreme Court rejected the appellant's request
of 29 May 2003.
- The
appeal was heard on 2 October 2003.
- On
4 December 2003 the court delivered its judgment. It upheld the
appeal and set aside the first instance judgment. It found that the
appellant's right to a fair trial had been violated. This was due to
the fact that the immigration authorities had not allowed her to
remain in Cyprus for the purposes of the trial whilst the Nicosia
Family Court had continued with the case despite having being
informed of the respondent's deportation. The Supreme Court noted
that the Family Court should have adjourned the case and indicated to
the immigration authorities to allow the respondent to return for a
few days to Cyprus in order to enable her to be present at the
proceedings and to defend her case. The Supreme Court ordered a
retrial by a different composition of the Family Court.
C. Retrial Proceedings before the Family Court
- On
23 December 2003 the applicant's counsel applied for a retrial of the
divorce petition.
- On
27 January 2004 the hearing of the divorce petition was set for
directions for 10 February 2004.
- In
the meantime, on 4 February 2004, the respondent filed an application
for leave to amend her defence.
- On
10 February 2004 the court fixed the interim application and the
divorce petition for directions for 17 February 2004.
- In
the meantime, on 13 February 2004, the respondent filed a second
application for leave to amend her defence. On 17 February 2004 she
withdrew her application of 4 February 2004 and the court granted her
application of 13 February 2004. Subsequently, the court fixed the
main divorce proceedings for hearing for 16 March 2004.
- The
amended defence and counter-claim were filed on 1 March 2004.
- From
16 March 2004 until 18 May 2004 the proceedings were adjourned twice
consecutively. Both adjournments were at the request of the
respondent's lawyer because his client could not appear before the
court as the immigration authorities had not made the necessary
arrangements for her to come to Cyprus.
- A
hearing was held on 18 May 2004 and the court granted the divorce
petition on the same day.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant 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 ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 28 September 1998 and
ended on 18 May 2004. It thus lasted five years, seven months and
twenty-one days for three instances over 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
applicant complained about the protracted length of the proceedings.
Amongst other things, he noted that the divorce petition would have
been easily and quickly determined if not for the errors committed by
the domestic authorities in handling the deportation of the
applicant's former wife.
- The
Government submitted that the domestic courts had examined the case
with reasonable efficiency and that there had not been any
unreasonable delay.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). In cases relating to civil status, what is at
stake for the applicant is also a relevant consideration, and special
diligence is required in view of the possible consequences which the
excessive length of proceedings may have, notably on enjoyment of the
right to respect for family life (Laino v. Italy [GC],
no. 3158/96, § 18, ECHR 1999-I).
- The
Court finds, firstly, that the nature of the case was not, as such,
complex. Furthermore, although certain of the adjournments, in
particular during the first instance proceedings, were by the
parties' mutual agreement (see paragraph 10 above), on the whole
there were no major delays attributable to the applicant. As regards
the conduct of the authorities, the Court notes that although the
retrial proceedings were particularly prompt (four months and twenty
five days), there were considerable delays at the first instance and
appeal stages. In particular, in the first instance proceedings there
was one significant period of inactivity of more than nine months
between 2 March 1999 and 15 December 1999 (see paragraphs 8-9 above).
No explanations have been given by the Government in this respect.
Furthermore, at the appeal stage, there was a period of inactivity in
the proceedings of approximately ten months between 11 January 2002
and 5 November 2002 (see paragraphs 21 to 23 above). The only
event that appears to have happened within this period was the
delivery of the Supreme Court's interim decision on the applicant's
interim application for costs (see paragraphs 21 and 22 above). Even
in this regard the Court notes that it took the Supreme Court over
five months to deliver this decision. In addition, the Court observes
that the intervals between fixing the appeal also had an impact on
the overall length of the appeal proceedings (see paragraphs 17, 18,
24 and 25 above).
- The
Court notes that while the total length of proceedings over three
instances, two of them of the same level of jurisdiction, does not
appear on the face of it to be excessive, it considers that the
periods of inactivity which occurred both at first instance and at
the appeal stage contributed significantly to the prolongation of the
proceedings. In the Court's opinion this was an unjustified delay
particularly bearing in mind the nature of the proceedings and the
particular diligence required in such cases (see paragraph 44 above).
- In
respect to the above, the Court recalls that Article 6 § 1
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 Frydlender, § 45, cited above).
- Having
examined all the material submitted to it, the Court considers that
in the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant complained that as a result of the
excessive length of the divorce proceedings his right to respect for
his family life under Article 8 of the Convention was violated.
In particular, he submitted that he had not been able to re-marry and
have a family. This provision reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Court reiterates that failure to try an action within a reasonable
time can on occasions have repercussions as regards respect for some
other right guaranteed by the Convention (see, inter alia,
Buchholz v. Germany, judgment of 6 May 1981, Series A no.
42, p. 22, § 65).
- In
the present case, the applicant complains he had not been able to
re-marry and establish a new family life during the divorce
proceedings. In this connection, the Court observes that by
guaranteeing the right to respect for family life, Article 8 of the
Convention presupposes the existence of a family (see, amongst other
authorities, Marckx v. Belgium, judgment of 13 June
1979, Series A no. 31, p. 14, § 31).
However, the applicant does not make any reference to an existing
family for which he could claim the right to respect under this
provision (see for example, Berlin v. Luxembourg,
no. 44978/98, § 64, 15 July 2003).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION
- The
applicant complained of a violation of his right to marry and found
family under Article 12 of the Convention as a result of the
protracted length of the proceedings. This provision provides as
follows:
“Men and women of marriageable age have the right
to marry and to found a family, according to the national laws
governing the exercise of this right.”
- The applicant claimed that throughout the divorce
proceedings he had been considered as married to the respondent.
Consequently, he had been unable to remarry and found a family with
his partner at the time during this long period. He submitted that
his relationship had ended because he was unable to determine when he
could remarry.
- The
Government contested that argument. In this respect, they submitted
that Article 12 did not include the right to have one's marriage
dissolved. In the alternative, they argued that the applicant could
not assume that the divorce proceedings in his case would have
resulted in the dissolution of his marriage nor had he submitted any
evidence in support of his allegations that he had entered into a
relationship with another woman who had then terminated the
relationship for reasons related to the divorce proceedings.
- The
Court notes that if national legislation allows divorce, which is not
a requirement of the Convention, Article 12 secures for divorced
persons the right to remarry without unreasonable restrictions (see
F. v. Switzerland, judgment of 18 December 1987,
Series A no. 128, p. 18, § 38). The
Court would not exclude that a failure to conduct divorce proceedings
within a reasonable time could in certain circumstances raise an
issue under Article 12 of the Convention. However, in the present
case, bearing in mind all the circumstances and the overall length of
the proceedings, the Court finds that the applicant's situation was
not such that the very essence of that right was impaired.
- Therefore,
this complaint is also manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. 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
applicant claimed 20,000 Cyprus pounds (CYP) in respect of
non-pecuniary damage. He did not make a claim in respect of pecuniary
damage.
- The
Government contested the claim.
- The Court considers that the applicant must have
suffered some non-pecuniary damage, such as frustration resulting
from the protracted length of the proceedings, which cannot
sufficiently be compensated by the finding of a violation. Taking
into account the circumstances of the case and making its assessment
on an equitable basis, it awards the applicant EUR 4,000 under
this head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed CYP 10,356 for the costs and expenses incurred
before the domestic courts. He provided the Court with three bills of
costs in this respect. The applicant also claimed CYP 12,050 for
the costs and expenses incurred before the Court and provided a bill
of costs in this respect. Finally, the applicant claimed VAT at a
rate of 15 % on the above amounts.
- The
Government contested the applicant's claim for costs and expenses
incurred before the domestic courts but left the remainder of the
claims to the Court's discretion.
- 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 and the above criteria, the
Court rejects the claim for costs and expenses in the domestic
proceedings and considers it reasonable to award the sum of EUR 1,500
for the proceedings before the Court, plus any tax that may be
chargeable on that amount.
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 concerning the 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 the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 4,000
(four thousand euros) in respect of non-pecuniary damage and EUR
1,500 (one thousand five hundred euros) for costs and expenses, to be
converted into Cyprus pounds at the applicable rate at the date of
settlement plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 July 2007 pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
