European Court of Human Rights

FIRST SECTION

DECISION

Application no. 4579/07
by Michalakis CHRISTOFOROU and Christakis CHRISTOFOROU
against Cyprus

The European Court of Human Rights (First Section), sitting on 14 May 2009 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 19 January 2007,

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

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

The applicants, Mr Michalakis Christoforou and Mr Christakis Christoforou are Cypriot nationals who were born in 1966 and 1954 respectively. The first applicant lives in Staffordshire (United Kingdom) and the second applicant in Nicosia. The second applicant brought the application in his capacity as administrator of the estate of his mother, Mrs Christina Christoforou. The applicants were represented before the Court by Mr Ch. Clerides, 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 8 March 1996 the first applicant and the applicants’ mother, Mrs Christina Christoforou, (hereinafter “the plaintiffs”), filed an action before the District Court of Nicosia (action no. 2187/96) against Hellenic Bank Ltd concerning, in essence, non-compliance by the defendant bank with a previous judgment of the District Court of Larnaca (judgment of 28 March 1994 in civil action 2209/03).

On 31 January 2002 the Nicosia District Court, by an interim decision, held that it did not have jurisdiction to try the case but that the competent court was the Larnaca District Court. It therefore stayed the proceedings and ordered that the action be referred to the competent court in accordance with the provisions of the Courts of Justice Law of 1960.

On 5 March 2002 the plaintiffs filed an application before the Nicosia District Court requesting leave to terminate and/or withdraw the action without prejudice and to file a new action before the Larnaca District Court.

Following Mrs Christoforou’s death on 17 December 2002, the second applicant was appointed administrator of her estate on 21 May 2003.

On 25 May 2004 the Nicosia District Court, by an interim decision, found that it did not have jurisdiction to deal with the application or any other steps taken by the parties in the action in view of the decision of 31 January 2002. It observed that although the plaintiffs had been aware of the impossibility of referral of the action to the competent court as ordered in the decision of 31 January 2002 they had not filed an appeal. That decision therefore had become final and was binding on the parties.

On 8 April 2004 the plaintiffs filed an appeal before the Supreme Court (civil appeal no. 12049). They complained that their action had been trapped in the Nicosia District Court and that they were prevented from filing a new action before the competent court.

On 27 July 2006 the Supreme Court upheld the findings of the Nicosia District Court and dismissed the appeal. As to the future of the action the Supreme Court found that the stay of proceedings ordered by the Nicosia District Court on 31 January 2002 had had the effect of bringing the entire proceedings to an end, i.e. the stay operated as a dismissal of the action. The appellants/plaintiffs could therefore file a new action before the competent court, i.e. the Larnaca District Court.

On an unspecified date the plaintiffs brought a new action before the Larnaca District Court.

COMPLAINTS

THE LAW

On 15 October 2008 the applicants’ complaints concerning the length of proceedings and the lack of an effective remedy in this respect were communicated to the respondent Government under Rule 54 § 2 (b) of the Rules of Court.

On 9 January 2009 and 7 April 2009 respectively the Court received the following declarations from the Government:

1. “I, Mr Petros Clerides, Attorney-General of the Republic of Cyprus, declare that the Government of Cyprus offer to pay 9,500 euros (nine thousand five hundred euros) to the first applicant, Mr Michalakis Christoforou, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

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 and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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. The payment will constitute the final resolution of the case as regards the first applicant.”

2. “I, Mr Petros Clerides, Attorney-General of the Republic of Cyprus, declare that the Government of Cyprus offer to pay 9,500 euros (nine thousand five hundred euros) to the second applicant, Mr Christakis Christoforou, in his capacity as administrator of the estate of his deceased mother, Mrs Christina Christoforou, who was a party to the domestic proceedings, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, providing that the above amount goes to the estate of the deceased.

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 and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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. The payment will constitute the final resolution of the case as regards the second applicant.”

On 16 December 2008 and 27 March 2009 respectively the Court received the following declarations signed by the applicants’ representative:

1.“I, Mr Christos Clerides, note that the Government of Cyprus are prepared to pay the sum of 9,500 euros (nine thousand five hundred euros), to the first applicant Mr Michalakis Christoforou, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

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 and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Cyprus in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case as regards the first applicant.”

2.“I, Mr Christos Clerides, note that the Government of Cyprus are prepared to pay the sum of 9,500 euros (nine thousand five hundred euros), to the second applicant, Mr Christakis Christoforou, in his capacity as administrator of the estate of his deceased mother, Mrs Christina Christoforou, who was a party to the domestic proceedings, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, providing that the above amount goes to the estate of the deceased.

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 and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Cyprus in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case as regards the second applicant.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis
Registrar President