AS TO THE ADMISSIBILITY OF
by Achilleas CONSTANTINOU and Others
The European Court of Human Rights (First Section), sitting on 17 September 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 19 January 2006,
Having regard to the declaration submitted by the respondent Government on 14 November 2008 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
The applicants, Mr Achilleas Constantinou, Ms Efthymia Constantinou and Ms Foulla Pangalos, are British nationals who were born in 1948, 1917 and 1942 respectively and live in London.
They were represented before the Court by Lawrence Stephens Solicitors, a firm of solicitors based in London. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
A. Background to the case
Two articles were published in a Cypriot weekly newspaper, Kirykas, on 15 September and 22 September 1985 respectively, concerning the murder of the second applicant’s son, the brother of the first and third applicants.
On 17 February 1986 the applicants introduced a libel action before the High Court of England and Wales (“High Court”) against, inter alia, the editor of the newspaper and the company that owned the newspaper. A copy of the action was served on the defendants in Cyprus on 28 March 1986 and 25 April 1986 respectively.
The defendants had failed to enter an appearance before the High Court and judgment was entered in default, in the applicants’ favour.
The judgment of the High Court was adopted in two stages: on 20 May 1986 it decided on the defendants’ liability and, then, three years later, on 5 April 1989, the issue of damages was considered.
On 7 November 1989 a final judgment was issued in favour of the applicants. The High Court awarded them damages amounting to 75,000 pounds sterling (GBP); the first applicant was awarded GBP 35,000 and the remaining applicants GBP 20,000, plus costs and interest.
The newspaper Kirykas went out of circulation in 1990.
B. Proceedings before the District Court of Nicosia
On 25 September 1990 the applicants lodged an action before the District Court of Nicosia seeking the enforcement of the judgment of the High Court against the company that owned the newspaper Kirykas and its chief editor. They claimed that the defendants had failed to pay the amount of damages that had been awarded by that court.
On 26 June 1990 the defendants filed an interim application requesting the District Court to set aside the applicants’ writ of summons.
On 25 October 1991 the District Court upheld the above application.
The District Court held that the applicants should not have proceeded by filing a civil action but that they should have sought registration of the High Court’s judgment in Cyprus under Law 11/76 ratifying the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and Supplementary Protocol thereto and/or under the Foreign Judgments (Reciprocal Recognition) Law (“CAP. 10”) for the purposes of enforcement.
The applicants lodged an appeal before the Supreme Court against the above interim decision.
On 23 February 1996 the Supreme Court set aside the District Court’s decision. The Supreme Court pointed out that the applicants could not have registered the judgment in Cyprus under the aforementioned laws; the judgment could not be registered under Law 11/76, there being no bilateral supplementary agreement between Cyprus and England as required by Article 21 of the Convention, while CAP. 10 was not applicable since the jurisdictional criteria for assumption of jurisdiction by the High Court had not been met. Consequently, the applicants could have lodged an action in common law on the basis of the High Court’s judgment.
It appears that the pleadings in the main action were closed at the beginning of 1998. Then, from 16 February 1998 until 27 February 2002, the case was adjourned several times either at the request of the applicants or the defendants or by the court. Furthermore, during this period the applicants lodged an application for discovery in order to recover documents which they had submitted to the court but which the court had lost. This application was dismissed by the District Court on 31 March 2000.
The hearing of the action began on 28 February 2002 and was completed on 31 May 2002.
On 27 September 2002 the District Court delivered its judgment by which it dismissed the action.
The District Court noted that the High Court judgment constituted merely a possible cause of action on which a Cypriot judgment could be issued. It added that such an action could only succeed where the judgment sought to be enforced had been issued by a court that had jurisdiction, where the judgment was final and conclusive and concerned a definite sum. The question of jurisdiction of the foreign court had to be decided on the basis of private international law and not on that of the domestic law of the foreign court. Further, with regard to actions in personam, the court noted that the issue of jurisdiction turned on whether the defendant had been present within the jurisdiction of that court when the proceedings had commenced, or was a national of that state or had voluntarily submitted to the foreign jurisdiction.
With reference to the first defendant company, the District Court observed that there had been nothing before it showing that it had accepted the jurisdiction of the High Court or that it had been conducting any business in England. It had only been shown that the defendants had knowledge of the fact that another company, with which the first defendant had signed a contract concerning the newspaper’s distribution in Cyprus, had also agreed to distribute the relevant newspaper in the United Kingdom. On this basis, it could not be said that the defendant company was itself conducting any business in the United Kingdom. As to the second defendant the court found that he had not been resident in England, he had not been practising any profession there and had not accepted the jurisdiction of the High Court in any way. Moreover, the fact that the libel had been published in England did not, on the basis of the common law, provide the High Court with jurisdiction so that its decision might be used as cause of action in the present case.
The court therefore concluded that, in accordance with the rules of private international law, which the Cypriot courts applied on the basis of the common law, the High Court did not have jurisdiction to hear the case and publish the above-mentioned judgment against the defendants.
Despite the above conclusion, the District Court also went on to examine certain procedural irregularities relied on by the defendants. It concluded that there had been a breach of the rules of natural justice due to the fact that the defendants had not been notified of the proceedings concerning the assessment of damages. In view of this it would have been unjust to order the enforcement of the judgment even if the High Court had had jurisdiction.
Finally, the court awarded only half of the costs incurred in the proceedings in favour of the defendants since it took into account “the novel nature of the legal points under examination”.
C. Appeal proceedings before the Supreme Court
The applicants lodged an appeal before the Supreme Court challenging the first-instance decision. The defendants lodged a counter-appeal in which they contested, inter alia, the partial award of costs.
The appeal hearing was concluded on 27 June 2005 and the Supreme Court reserved its judgment.
On 20 July 2005 the Supreme Court upheld the first-instance judgment.
With reference to the relevant principles of the common law regarding the enforcement of foreign judgments in actions in personam, the Supreme Court observed that there had been no evidence showing that the respondents were nationals of the United Kingdom or that they had been resident in England at the time when the action had been introduced before the High Court or that they had voluntarily appeared before the High Court or that they had brought any previous actions as claimants against the appellants in England or that they had agreed to accept the jurisdiction of the High Court. Moreover, the Supreme Court pointed out that the trial court had been correct to find that the defendant company could not be deemed to have conducted business in England at the relevant time. Hence, the High Court did not have jurisdiction to issue a judgment against the respondents and the action seeking to enforce the High Court judgment had to be dismissed.
Further, the Supreme Court agreed that there had been a violation of the rules of natural justice at the expense of the respondents given that they had not been duly notified of the second stage of the High Court proceedings.
Finally, as regards the question of costs, the Supreme Court considered that the principles of common law and of private international law relating to the subject matter of the action were well established and that therefore there was no special reason to deprive the respondents of one half of their costs. It concluded that the respondents were entitled to the whole amount of the costs incurred before the first-instance court.
1. The applicants complained under Article 6 of the Convention that the length of the proceedings before the Cypriot courts had been excessive.
2. The applicants further complained under the above provision that the proceedings had been unfair. More specifically, they claimed that the proceedings had been unfair for the following reasons:
(a) the Supreme Court’s judgment holding that the High Court had not had jurisdiction to deal with the case was flawed;
(b) the Nicosia District Court had dismissed their application for the discovery of documents which they needed in order to establish jurisdiction on the part of the High Court; and,
(c) the defendants’ lawyer was the son of the author who had written the articles in question. The author had, during the proceedings, been elected President of Cyprus. The domestic courts therefore would not risk issuing a judgment against the defendants.
3. The applicants also maintained that the failure of the Cypriot courts to enforce the High Court’s judgment infringed their right to private and family life under Article 8 of the Convention as the libel concerned the question of responsibility for the murder of a family member.
4. The applicants complained of a violation of their property rights under Article 1 of Protocol No. 1 in that the Cypriot courts, by failing to enforce the High Court’s judgment, had denied them the damages that had been awarded to them by that court.
5. Finally, the applicants complained under Articles 13 and 14 of the Convention that they had been denied an effective remedy in respect of their Convention complaints as a result of the Cypriot courts’ failure to enforce the High Court’s judgment.
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 § 1 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 ... 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 14 November 2008 the Government informed the Court that they proposed 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 a global amount of EUR 56,500 (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 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 the Government Agent’s Office has drafted specific legislation (Law “Providing Effective Remedies for Violation of the Right to have Civil Rights and Obligations Determined within a Reasonable Time”, copy attached) on which it awaits views from the authorities concerned to which it has been transmitted for this purpose before being processed for Governmental approval and introduction to parliament. 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 both where the alleged violation concerns court cases which are still pending and where it concerns cases which have been determined. In addition, a party to pending court proceedings, may at any stage make an allegation in the proceedings of violation of his right in them and is entitled to have his allegation examined and a judgment given by the competent court respecting the question of violation. A judgment given following this procedure affords the right to institute proceedings in district courts by way of civil action concerning the issue of compensation for the violation found. A judgment making a finding of violation in pending proceedings, whether given in a separate district court action or following examination of allegations which are made in the pending proceedings themselves, is transmitted to the Supreme Court for any necessary directions for speeding up the proceedings. 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.
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 January 2009 the applicants expressed the view that striking the application out of the Court’s list on the basis of the Government’s proposal would fail to guarantee protection of their rights under Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. They noted, inter alia, that the law proposed by the Government was not yet in force and that their application involved matters other than the length of the proceedings in Cyprus and the lack of remedy in this respect, which were of great importance and required examination by the Court in order to ensure respect for human rights as defined in the Convention.
The Court reiterates 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 notes 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 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 Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007).
The Court has by its case-law established the principles and its practice concerning complaints about a violation of one’s right to a hearing within a reasonable time and about a 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 ....; Majewski v. Poland, no. 52690/99, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; Kudła v. Poland [GC], no. 30210/96, ECHR 2000-IX and Charzyński v. Poland (dec.) no. 15212/03, HR 2005 ...).
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 – the Court considers that it is no longer justified in continuing 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 complaints
The applicants complained under Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 that the domestic proceedings were unfair and that the High Court judgment had not been enforced by the Cypriot courts.
1. Complaints under Article 6 of the Convention
With regard first to the applicants’ complaints under Article 6 of the Convention concerning the fairness of the proceedings the Court notes the following. In so far as the applicants are complaining about the Supreme Court’s judgment holding that the High Court’s judgment could not be enforced, the Court reiterates that it is not its task to act as a court of appeal or as a court of fourth instance, against the decisions of the domestic courts. It is the role of the latter to interpret and apply the relevant rules of national procedural and substantive law. Furthermore, it is not the Court’s 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, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I). In the present case the applicants are in essence requesting the Court to review the findings of the domestic courts, and in particular of the Supreme Court, concerning the enforcement of the judgment of the High Court in Cyprus. The Court considers that both the District Court and the Supreme Court gave sufficient and thorough reasons for their conclusions in this respect. There is no indication of arbitrariness or unfairness. This complaint is therefore manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
As regards the applicants’ second complaint concerning the dismissal of their application for discovery of documents by the District Court, the Court notes that the applicants could have appealed against this decision in the context of the main appeal against the final first-instance judgment. The applicants, however, did not raise this issue in their appeal grounds to the Supreme Court.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Concerning the applicants’ third complaint as to lack of impartiality, the Court observes that this complaint is entirely unsubstantiated and therefore, manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
2. Complaints under Articles 8 and 14 of the Convention and 1 of Protocol No. 1
With regard to the applicants’ complaints under Articles 8 and 1 of Protocol No. 1 of the Convention, the Court considers that no issue arises under these provisions from the moment that the judgment of the High Court was not recognised by the domestic courts for the purposes of enforcement in Cyprus.
Moreover, the Court notes that the applicants’ complaint under Article 14 of the Convention lacks any substantiation.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
3. Complaint under Article 13 of the Convention
Lastly, as regards the applicant’s complaint under Article 13 of the Convention, the Court reiterates that this Article applies only where an individual has “an arguable claim” to be the victim of a violation of a Convention right (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131, and Ivison v. the United Kingdom (dec.), no. 39030/97, 16 April 2002). In view of its conclusions above in respect of the applicants’ complaints under Articles 6, 8 and 14 of the Convention and 1 of Protocol No. 1, the Court finds that this claim cannot be said to be arguable within the meaning of Convention case-law.
Accordingly, this part of the application is manifestly ill-founded within the meaning of 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 concerns 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