European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2010/1383.html
Cite as: [2010] ECHR 1383
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FIRST SECTION
DECISION
Application no.
45463/08
by Charalambos VASSILAS
against Cyprus
The European Court of Human Rights (First Section), sitting on 2 Septembre 2010 as a Chamber composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having regard to the above application lodged on 28 August 2008,
Having regard to the declaration submitted by the respondent Government on 9 November 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 FACTS
The applicant, Mr Charalambos Vassilas, is a Cypriot national who was born in 1971 and lives in Larnaca. He is represented before the Court by Mr C. 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.
A. First instance proceedings before the District Court of Nicosia
On 21 May 2002 the applicant, a journalist, brought defamation proceedings before the District Court of Nicosia (action no. 5284/2002) against another journalist and a radio broadcasting station (“the defendants”).
As the defendants did not file an appearance, the applicant made an application for judgment in default.
On 25 July 2003 the District Court issued a judgment in default of appearance against the defendants.
On 3 September and 31 July 2003 respectively the defendants applied to the District Court to set the default judgment aside.
On 22 July 2005 the District Court set aside the judgment.
On 1 August 2005 the first defendant entered an appearance.
B. Appeal proceedings before the Supreme Court
On 4 August 2005 the applicant lodged two appeals (nos. 247/05 and 248/05 respectively) before the Supreme Court against the District Court's judgment of 22 July 2005.
At the hearing of 18 October 2007, appeal no. 247/05 regarding the second respondent was withdrawn by the applicant with the reservation of a right to bring a new action in the future if he so wished. Furthermore, an agreement was made between the applicant and the first respondent regarding the result of appeal no. 248/05. Consequently, the proceedings in the initial action, in so far as they concerned the first respondent/defendant, continued before the District Court.
C. Continuation of the first instance proceedings before the District Court of Nicosia
On 18 October 2007 the statement of claim in the original action (no. 5284/2002) was sent to the first defendant.
On 28 May 2008 the applicant filed an application with the District Court seeking a judgment against the first defendant for failure to file a defence.
The application was listed for hearing on 27 June 2008 and then for directions on 22 September 2008.
The proceedings were concluded on 6 October 2008 following a friendly settlement between the parties.
COMPLAINTS
The applicant complained under Articles 6 and 13 of the Convention about the protracted length of the proceedings before the domestic courts and the lack of an effective remedy in this respect.
THE LAW
The applicant complained about the length of the proceedings and that he had no effective remedy at his disposal. He relied on Article 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...”
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.
By a letter dated 9 November 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised in this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provides as follows:
“1. 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 did not fulfil the requirement of “reasonable” referred to in Article 6 § 1 of the Convention and no “effective remedy” referred to in Article 13 for the aforementioned violation was at the applicant's disposal.
2. Consequently, the Government is prepared to pay the applicant a global amount of EUR 6,000 (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.
3. 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.
4. Respecting the Government's acknowledgment that there was no “effective remedy” at the applicant's disposal the Government states that it has introduced in the legislature (House of Representatives) on 14.7.09, specific legislation for creating national 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. The relevant Bill (entitled, “A Law Providing Effective Remedies for Violation of the Right to have Civil Rights and Obligations Determined within a Reasonable Time”) is presently examined by the legislature; it is expected that it will be approved by the legislature and enter into force at the end of next month or the beginning of January.
5. The Bill applies to complaints about the length of court proceedings in all civil and administrative cases (at all levels of jurisdiction); complainants may institute civil proceedings in district courts for violation of the right and payment of compensation and may also do so where the complaint is with respect to court proceedings concluded before the law enters into force.
6. Complaints may also be made respecting the length of pending proceedings; a party may make an application to another court at any stage of the pending proceedings, complaining of their length and claiming compensation; the complainant is entitled to examination and judgment on his complaint, and to compensation for the violation; such an application may also be made respecting complaints about the length of proceedings which are pending when the law enters into force; in addition to compensation, directions must be given by the Supreme Court for expediting the pending proceedings; for this purpose the trial court must transmit its judgment to the Supreme Court.
7. The Bill provides that in determining the issues of violation and assessment of compensation in the above domestic proceedings the courts must take into account the case-law of the European Court of Human Rights.
8. In 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 a letter dated 14 December 2009 the applicant expressed the view that the sum mentioned in the Government's declaration was inadequate considering awards accepted by the Court in similar cases. He considered that the sum of 7,000 euros would be more appropriate. He noted in this respect that the case was a simple defamation case involving only a procedural issue.
In a letter of 10 March 2010 the Government informed the Court that the bill establishing a domestic remedy for length of proceedings had been approved by the legislature and that the relevant Law (Law 2 (I)/2010) had entered into force on 5 February 2010.
In a letter dated 9 April 2010 the applicant pointed out that his case did not come within the ambit of the new law as it was not pending before a District Court or the Supreme Court and that it had not be concluded by way of a final judicial decision. He therefore considered that the Court should proceed with the examination of his application.
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”.
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 z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwiÿska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, its practice concerning complaints about the violation of one's right to a hearing within a reasonable time (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; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007). Furthermore, it has already had occasion to address complaints related to the alleged breach of one's right to a hearing within a reasonable time and the lack of an effective remedy in this respect in a variety of cases against Cyprus (see, for example, Mylonas v. Cyprus, no. 14790/06, 11 December 2008; Ouzounian Barret v. Cyprus, no. 2418/05, 18 January 2007; Gavrielides v. Cyprus, no.15940/02, 1 June 2006; Lerios v. Cyprus, no. 68448/01, 23 March 2006; Paroutis v. Cyprus, no. 20435/02, 19 January 2006).
The Court observes that the Government's declaration contains a clear acknowledgment of a breach of Articles 6 § 1 and 13 of the Convention. Furthermore, the Court takes cognisance of the entry of Law 2(I)/2010 establishing national remedies for complaints of a violation of the reasonable time requirement of Article 6 § 1 of the Convention. Last but not least, the Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case, and that this amount is consistent with the amounts awarded by the Court in other similar cases.
Against this background, the Court considers that it is no longer justified in continuing the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's declaration under Article 6 § 1 and 13 of the Convention 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 accordance with Article 37 § 1 (c) of the Convention.
Søren Nielsen Christos Rozakis
Registrar President