AS TO THE ADMISSIBILITY OF
by Loukis PAPACHRISTOFOROU and Dora PAPACHRISTOFOROU
The European Court of Human Rights (First Section), sitting on 17 Septembre 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 13 July 2007,
Having regard to the declaration submitted by the respondent Government on 10 April 2009 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
The applicants, Mr Loukis Papachristoforou and Mrs Dora Papachristoforou, are Cypriot nationals who were born in 1931 and 1935 respectively and live in Nicosia. They were represented before the Court by Mr S. Drakos, 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.
The facts of the case, as submitted by the parties, may be summarised as follows:
On 5 October 1998 a third party lodged a civil action against the applicants claiming recovery of a debt (action no. 12382/98).
On 25 February 2005 the District Court found in favour of the plaintiffs and ordered the applicants to pay the disputed debt.
On 8 April 2005 the applicants appealed to the Supreme Court (appeal no. 113/2005).
On 23 March 2007, following the hearing of the case, the court, in a short judgment, dismissed the applicants’ appeal. The court noted that it had carefully examined the case and that it considered, after having regard also to the written address of the applicants, that the first instance judgment had been correct. It therefore adopted its content. The court further pointed out that the same issues raised by the applicants in the present case had formed the subject matter in two other cases in which they had been involved.
The applicants complained under Articles 6 and 13 of the Convention about the protracted length of the proceedings and the lack of an effective remedy in this respect.
They further complained under Article 6 of the Convention that there had been insufficient reasoning in the Supreme Court’s dismissal of their appeal.
A. Length of proceedings and the lack of an effective remedy in this respect
The applicants complained about the length of the proceedings and that they had no effective remedy at their disposal. They relied on Articles 6 and 13 of the Convention which, in so far as relevant, provide as follows:
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...”
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.
By letter dated 10 April 2009 the Government informed the Court that they wished to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention which provides as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
The declaration provides as follows:
“1. The Government notes that the efforts with a view to securing a friendly settlement of the case have been unsuccessful.
2. In this situation, the Government wishes to express - by way of a unilateral declaration – its acknowledgement that in the special circumstances of the present case the length of the proceedings, both at first instance and on appeal did not fulfil the requirement of “reasonable” referred to in Article 6 § 1 of the Convention and that no “effective remedy” within the meaning of Article 13 for the aforementioned violation was at the applicants’ disposal.
3. Consequently, the Government is prepared to pay the applicants jointly a global amount of EUR 7,100 (covering pecuniary and non--pecuniary damage and costs and expenses). In its view, this amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings and the lack of an effective remedy, and thus an acceptable sum as to quantum in the present case.
4. This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. This payment will constitute the final settlement of the case.
5. The Government is also in the process of creating national effective remedies for complaints of violation of the reasonable time requirement of Article 6 § 1 of the Convention in the determination of civil rights and obligations in all civil and administrative court proceedings. To this end specific legislation drafted by the Government Agent’s Office (a Bill under the title “A Law Providing Effective Remedies for Violation of the Right to have Civil Rights and Obligations Determined within a Reasonable Time”, ) has now been processed by the Government Agent for Government approval and introduction to Parliament, having already received views from authorities concerned. Under the proposed legislation complaints of violation of the right to have civil rights and obligations determined within a reasonable time are actionable, and the complainants may institute proceedings by way of a civil action in district courts seeking compensation for the violation where judicial examination of the case in which they allege that their right was violated has been completed. The right to institute such proceedings is also afforded concerning cases which were completed before the law’s date of entry into force. In addition, a party to pending court proceedings may at any stage of the proceedings raise there an allegation of violation of his right in the proceedings, and is entitled to examination and judicial pronouncement by the competent court to which the matter is referred, concerning the question of violation. A judgment making a finding of a violation under this procedure concerning proceedings that are pending, must be transmitted to the Supreme Court for any necessary directions for speeding up the proceedings. Such a judgment affords also the right to institute proceedings in district courts by way of civil action concerning the issue of compensation for the violation found. In determining the issue of violation of the right and assessing compensation the courts must take into account the case-law of the European Court of Human Rights. This is applicable both in proceedings for violation by way of civil action and in the procedure for examination of allegations of violation in pending proceedings.
6. In the light of the above, the Government would suggest that the circumstances of the present case allow your Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying your Court to discontinue the examination of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invites your Court to strike the application out of its list of cases.”
In their letter of 12 May 2009 the applicants pointed out that the Government’s declaration was limited to their complaints concerning the length of the proceedings and did not take into account their fairness complaints under Article 6 of the Convention. They stated therefore that although they could accept the unilateral declaration and the sum proposed therein, this would be without prejudice to their right to have their fairness complaints examined by the Court.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spóÿka zo.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwiÿska v. Poland (dec.) no. 28953/03, 18 September 2007).
The Court has by its case-law established in a number of cases the principles and its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time and about the lack of an effective remedy capable of providing redress for a breach of this right (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 V.; Majewski v. Poland, no. 52690/99, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; Kudÿa v. Poland [GC], no. 30210/96, ECHR 2000-IX; and Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005-V).
Having regard to the Government’s clear acknowledgement of a breach, as well as to the amount of compensation proposed – which is consistent with the amounts awarded in similar cases –, and the applicants’ comments, the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and given the clear and extensive case-law on the matter, the Court is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
B. Remaining complaint
The applicants further complained under Article 6 of the Convention that the Supreme Court’s judgment dismissing their appeal had not been adequately reasoned.
According to the Court’s case law, although Article 6 § 1 of the Convention obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument of the parties involved (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Higgins and Others v. France, 19 February 1998, § 42, Reports of Judgments and Decisions 1998-I). Furthermore, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see, inter alia, Kok v. the Netherlands (dec.), no. 43149/98, 4 July 2000 and García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I, with further references).
In the present case the Supreme Court, having taken into account the applicants’ arguments, agreed with the judgment of the first instance court and upheld it. It further pointed out that the same issues had been raised by the applicants in two other cases in which they had been involved.
Bearing in mind the applicant’s submissions, the Court finds that the reasons given by the Supreme Court were adequate and sufficient in the circumstances of the case. There is no indication that the applicants’ arguments were not properly or fairly examined.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Takes note of the terms of the respondent Government’s declaration in respect of the complaints under Article 6 § 1 and 13 of the Convention concerning the length of proceedings and the lack of an effective remedy in this respect and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
André Wampach Nina Vajić
Deputy Registrar President