European Court of Human Rights

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38884/06
by Andreas GAVRIELIDES and Others
against Cyprus

The European Court of Human Rights (First Section), sitting on 20 September 2007 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr A. Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 14 September 2006,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Andreas Gavrielides, Mr Alexis Gavrielides, Mr Nikos Kannavas, Ms Maria Kannava, Mr Georgios Kannavas, Mr Savvas Kannavas and Ms Elena Kannava were born in 1951, 1975, 1936, 1943, 1969, 1972 and 1978 respectively. The second applicant is a British national and lives in London. The remaining applicants are all Cypriot nationals. The first applicant lives in Nicosia and the other applicants in Limassol. Apart from the second applicant, who is represented by the first applicant, the applicants are representing themselves.

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants are the owners of property in the coastal area of Limassol. Applicants nos. 5, 6 and 7 became registered owners of the property on 15 September 2003 following the death of their father, Mr Andreas Kannavas.

A. Civil proceedings (action no. 8000/01)

On 22 November 2001 applicants nos. 1-5 brought a civil action before the District Court of Limassol concerning unlawful trespass on their property due to works carried out by the authorities. Applicants nos. 4 and 5 brought the action as administrators of the estate of Mr Andreas Kannavas (Andreas Gavrielides, Alexis Gavrielides, Nikos Kannavas, Maria Kannava and George Kannavas as administrators of the estate of Mr Andreas Kannavas v. Ayios Tychonas Local Authority, Medcon Construction Ltd and the Republic of Cyprus, through the Attorney-General).

Between the date of the lodging of the action and 22 November 2006 the court met a total of twenty-six times. The case was adjourned continuously and no hearing was held.

The proceedings are still pending.

B. Administrative proceedings (recourse no. 264/02 and appeal no. 3700)

On 21 March 2002 applicants nos. 1-5 filed an administrative recourse (no. 264/02) before the Supreme Court (first instance administrative jurisdiction). Applicants nos. 4 and 5 acted in their capacity as administrators of the estate of Mr Andreas Kannavas (Andreas Gavrielides, Gavriel Gavrielides as the authorised representative of Alexis Gavrielides, Nikos Kannavas, Maria Kannava and George Kannavas as administrators of the estate of Mr Andreas Kannavas v. the Republic of Cyprus, through the Ministry of Interior and/or the Council of Ministers).

The applicants had challenged the lawfulness of the implementation of the road alignment plan on part of their property before the competent administrative authorities. The latter, in reply, had informed them by letter of 18 February 2002 that it had been ascertained that the part of the property in question was registered as a public road following the implementation of a road alignment plan which had been agreed upon when the applicants had been granted a building permit in 1979. In the recourse the above applicants sought the annulment of the above act and/or decision since they considered that the recent works carried out by the authorities covered parts of their property which were not within the road alignment plan and were therefore unlawful.

On 2 September 2003 the Supreme Court dismissed the recourse. The court found that the act complained of was not an executory administrative act and therefore did not come within its administrative jurisdiction. The court noted that the applicants considered that the act was a new decision resulting in the deprivation of part of their property which was not in the ambit of the road alignment plan. However, this was not the case. The letter was of an informative nature; it did not contain a new plan but merely referred to the plan that had been agreed upon with the applicants in 1979. At that time the applicants had not submitted any objections or filed a recourse concerning the plan. If the competent authorities, as the applicants claimed, were interfering on the part of the their land which did not fall within the ambit of the road alignment plan, then the act in question would be that of unlawful trespass falling within the ambit of private law (tort) and therefore within the jurisdiction of the District Courts. In this connection, the court observed that the applicants had filed such an action.

The applicants then filed an appeal (no. 3700) before the Supreme Court (revisional administrative jurisdiction).

On 24 March 2006 the Supreme Court dismissed the appeal. In its judgment the court, inter alia, noted the conclusions of the first instance court and stated that it agreed with this judgment.

COMPLAINTS

1.  The applicants complained under Article 6 § 1 of the Convention about the length of both the civil proceedings (action no. 8000/01) and the administrative proceedings (recourse no. 264/02 and appeal no. 3700).

2.  Furthermore, the applicants complained under Article 6 § 1 of the Convention of the unfairness and arbitrariness of the Supreme Court’s judgment of 24 March 2006 in appeal no. 3700. In this connection, they submitted that the Supreme Court had erred in its application of the law concerning executory administrative acts and that its judgment had not been sufficiently reasoned. The applicants further claimed that as a consequence of the above judgment they had been deprived of access to court.

3.  The applicants complained that the judgment of the Supreme Court of 24 March 2006 had deprived them of their possessions under Article 1 of Protocol No. 1.

4.  Finally, the applicants complained about the lack of an effective remedy in respect of the violation of their above rights contrary to Article 13 of the Convention.

THE LAW

A.  Civil proceedings (action no. 8000/01)

The applicants complained under Article 6 § 1 of the Convention about the protracted length of the proceedings before the Cypriot courts. The applicants further complained about the lack of an effective remedy in this respect contrary to Article 13 of the Convention. The above provisions provide as follows, in so far as relevant:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B.  Administrative proceedings (recourse no. 264/02 and appeal no. 3700)

The applicants complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.

At the outset the Court notes that from the title of the recourse and the appeal it appears that applicants nos. 6 and 7 were not parties to the proceedings. Nevertheless, it does not consider it necessary to examine the victim status of these applicants under Article 34 of the Convention since the complaints raised as to these proceedings are in any event manifestly ill-founded for the following reasons:

Firstly, as regards the applicants’ complaint concerning the length of the proceedings, the Court notes these proceedings commenced on 21 March 2002 with the filing of the recourse before the Supreme Court (first instance administrative jurisdiction) and ended on 24 March 2006 when the Supreme Court’s judgment on appeal was given (revisional administrative jurisdiction). Therefore they lasted a total of four years and four days for two levels of jurisdiction. In this respect the Court observes that the applicants do not refer to any specific delays on the part of the courts during the proceedings.

In view of the above and having regard to its case-law on the subject, the Court finds that the proceedings did not exceed the reasonable time requirement under Article 6 § 1 of the Convention.

Secondly, as to the unfairness and arbitrariness of the Supreme Court’s judgment on appeal, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Furthermore, it is in the first place for the national authorities, notably the courts, to interpret national law (see, inter alia, Epple v. Germany, no. 77909/01, § 38, 24 March 2005; Morsink v. the Netherlands, no. 48865/99, § 63, 11 May 2004).

In the present case, the Court notes that the Supreme Court’s judgment at first instance was well reasoned and clearly found that the act complained of was not of an executory administrative nature. The Supreme Court on appeal fully agreed with the first instance judgment and upheld it; there was therefore no need for it to give a detailed statement of reasons. Having examined the documents submitted before it the Court finds that the domestic courts gave sufficient and relevant reasons for their decisions which do not appear arbitrary or unfair. The mere fact that the applicants are dissatisfied with the outcome of the proceedings cannot of itself raise an issue under Article 6 of the Convention. Moreover, the applicants cannot claim to have been excluded from having access to court; they were able to bring their claims before the Supreme Court which examined them both at first instance and on appeal. It is also clear that in so far as the applicants’ complained about an interference by the authorities on part of their land which did not fall within the ambit of the road alignment plan, this was a matter to be determined in the context of an unlawful trespass action. The applicants have lodged such an action.

Thirdly, as regards the applicants’ complaint concerning the deprivation of their possessions contrary to Article 1 of Protocol No. 1, the Court notes that the appeal judgment did not have such an effect. Any alleged deprivation of property due to works carried out by the authorities was a question of unlawful trespass to be examined by the District Court.

In view of its conclusions above, the Court considers that the applicants have no arguable claim of a violation of their rights under Articles 6 of the Convention and 1 of Protocol No. 1 in so far as the administrative proceedings are concerned and consequently Article 13 is not engaged (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

It follows that this part of the application is manifestly ill-founded as a whole and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints under Articles 6 § 1 and 13 of the Convention concerning the proceedings in civil action no. 8001/01;

Declares the remainder of the application inadmissible.

André Wampach Christos Rozakis
Deputy Registrar President