(Application no. 35698/03)
9 November 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 Tengerakis 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 Regitrar,
Having deliberated in private on 19 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Civil application no. 24/92
B. Civil action no. 1056/94
1. Proceedings before the District Court of Nicosia
2. Appeal proceedings before the Supreme Court
C. Civil application no. 132/00
D. Civil action no. 3740/01
II. RELEVANT DOMESTIC LAW
“3. Legal aid free of expense shall be granted to the proceedings provided in sections 4, 5 and 6 below, to the extent and under the conditions laid down therein.
4.- (1) This section applies-
(a) In criminal proceedings before a court, against any person, for an offence that he may have committed in violation of any legislative provision, for which an imprisonment sentence is provided for exceeding one year and includes preliminary interrogation and every other stage of interrogation or other procedure taking place before the commencement of subsequent criminal proceedings that relate to it;
(b) Except for criminal proceedings provided in paragraph (b) of subsection (1) of section 5 below, in any other proceedings before a court exercising its criminal jurisdiction.
(2) For the purposes of the application of this section, the term “court” means the District Court, Assize Court, Military Court and includes the Supreme Court, when examining any issue raised in criminal proceedings, in exercising its first or second instance jurisdiction.
(3) In proceedings provided for in subsection (1) above, legal aid free of expense will be granted that would include advice, assistance and representation.
5. (1) For the purposes of application of this section, the term “proceedings for determined violations of human rights” means any:
(a) Civil proceedings before a court, at any stage, lodged against the Republic for damages sustained by a person due to determined violations of human rights; or
(b) Criminal proceedings lodged by any person, where the offence in examination concerns determined violations of human rights.
(2) Legal aid will be granted, free of expense, to proceedings concerning determined violations of human rights.
(3) Legal aid granted by virtue of this section:
(a) In the case of a civil proceedings lodged in the Republic or criminal proceedings, will include advice, assistance and representation; and
(b) In civil proceedings lodged outside the Republic, will include only advice.
(4) The Ministerial Council may by an order published in the Official Gazette of the Republic amend the Table.
6. (1) For the purposes of this section, the term “proceedings before a family court” means:
(a) Proceedings raised in respect to family relations on the basis of provision of bilateral or multilateral treaties to which the Republic has acceded; or
(b) Proceedings concerning parental care, alimony, recognition of child, adoption, proprietary relations of spouses and any other marital or family dispute.
(2) Free legal aid is provided for proceedings before a family court, which includes advice, assistance and representation.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
In this respect the applicant argued that all the proceedings concerned the same issue and thus, were sufficiently linked to amount to one set of proceedings.
I. Civil application no. 24/92
It follows that this part of the application is inadmissible for non-compliance with the six months' rule set out in Article 35 § 1 of the Convention, and that it must be rejected pursuant to Article 35 § 4.
2. Civil action no. 1056/94, civil application no. 132/00 and civil action no. 3740/01
1. Civil action no. 1056/94
63. The Court firstly observes that although the case does not appear to have been particularly complex factually and legally, the large number of interlocutory applications filed by the parties before the District Court of Nicosia increased the complexity of the case at least from a procedural standpoint. The District Court in its judgment of 27 May 1999 noted that the number of interlocutory applications had been one of the causes of the protracted length of the proceedings (see paragraph 21 above). In this connection, the Court notes in particular that the applicant had filed all but one of these applications. Furthermore, extensive evidence had been submitted by the parties in the proceedings both in the form of exhibits and witness statements (see paragraph 21 above).
64. However, the Court considers that the delays occasioned by the procedural complexity of the case and the applicant's role in this respect do not of themselves justify the length of the proceedings on the whole. In particular, it notes that before the District Court of Nicosia there were at least two long periods of inactivity attributable to the respondent Government: a period of six months and seventeen days when on 26 May 1995 the court set the case for hearing for 12 December 1995 and then, a period of nearly seven months following two consecutive adjournments by the court itself from 17 June 1996 until 15 January 1997 (see paragraphs 16 and 17 above). Furthermore, although the appeal before the Supreme Court was lodged on 22 June 1999, the minutes of the first instance proceedings were sent to the Supreme Court on 12 December 2001. This was despite nine letters and/or reminders which were sent to the Registrar of the District Court by the Registrar of the Supreme Court for this purpose. This delay has not been explained. As a result there was a significant period of inertia following the lodging of the appeal amounting to two years, five months and twenty-two days following (see paragraphs 24 and 25 above). 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).
There has accordingly been a breach of Article 6 § 1.
2. Civil application no. 132/00
66. The Court notes that the proceedings have been pending before the District Court of Nicosia for approximately six years and six months and that throughout this period the substance of the application has not yet been examined. Instead, it is clear from the facts of the case that, during this period, the court had been dealing with the numerous interlocutory applications filed by the parties. The Court notes that eleven of the twenty-eight applications were filed by the applicant (see paragraphs 36 and 37 above). The delay in the examination of the main application before the District Court of Nicosia was the consequence of these numerous interlocutory applications which increased the complexity of the case at least from a procedural point of view. Although admittedly the parties were only using the procedural possibilities open to them in the proceedings, it is clear that the incessant use of these possibilities significantly prolonged the trial before the District Court.
For this reason it concludes that there has been no breach of Article 6 § 1 of the Convention.
3. Civil action no. 3740/01
69. The Court observes first of all that the proceedings have been pending before the District Court of Nicosia for just over four years and three months. It appears from the parties' submissions that the substance of the action has not yet been examined but that the court has been dealing with the interlocutory applications filed by the parties. The applicant filed only one of these interlocutory applications. Furthermore, although certain adjournments were granted at the applicant's request they were limited and of short duration. It does not therefore appear that the applicant's conduct significantly contributed to the prolongation of the trial.
70. As to the conduct of the authorities, the Court observes that delay occurred in the examination of the defendants' interlocutory application of 11 September 2002. In particular, although the District Court reserved its decision on 2 June 2003, this decision was delivered on 15 January 2004, that is, approximately seven and a half months later (see paragraph 48 above). The Court points out, however, that in the meantime the District Court continued with the examination of another interlocutory application in the same case (see paragraph 49 above). On 17 October 2005 the court set the action for hearing for 1 March 2006, four months and thirteen days afterwards (see paragraph 52 above). This period however would seem acceptable if viewed in the context of the total duration of the proceedings, as it must be (see, mutatis mutandis, Andreucci v. Italy, judgment of 27 February 1992, Series A no. 228-G, p. 76, §§ 15-18, and Arena v. Italy, judgment of 27 February 1992, Series A no. 228-H, p. 85, §§ 15-18). Otherwise, the Court notes that from the material submitted by the parties no significant periods of inactivity can be identified that can be attributed to the relevant authorities.
71. Regard being had to all the circumstances of the case, the Court finds that the delays in the proceedings were not so substantial as to amount to a breach Article 6 § 1 of the Convention. The Court refers to paragraph 68 above in this respect.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE FAIRNESS OF THE PROCEEDINGS
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 6,000 (six thousand euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) for costs and expenses, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 9 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos