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Cite as: [2010] ECHR 1544
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
46370/09
by Panayiotis PANAYI
against Cyprus
The European Court of Human Rights (First Section), sitting on 23 September 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having regard to the above application lodged on 6 August 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Panayiotis Panayi, is a Cypriot national who was born in 1954 and lives in Limassol.
The applicant has brought the present application in his capacity as administrator of his deceased father's estate.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Proceedings before the District Court of Paphos (civil action no. 478/90)
On 16 March 1990 a civil action was brought before the District Court of Paphos by, inter alia, the applicant, in his capacity as administrator of his deceased father's estate, against four members of his family and the Attorney-General of the Republic concerning the transfer and registration of certain plots of land.
On 10 March 1999 the action was settled by way of friendly settlement.
2. Proceedings before the District Court of Paphos (civil action no. 370/00) and the Supreme Court (appeals nos. 353/06 and 261/06)
On 28 January 2000 the applicant, in his capacity as administrator of his deceased father's estate, brought another civil action before the District Court of Paphos against four members of his family and the Attorney-General (“the defendants”) seeking the transfer and registration of a plot of land in his name.
On 18 July 2006 the District Court upheld the applicant's claim in part. It issued an order for the annulment of the registration of the plot in the names of defendants nos. 1–4 and further, an order for the restoration/reinstatement/re-registration of the property in the applicant's grandfather's name.
On 28 August 2006 the applicant lodged an appeal with the Supreme Court, claiming that the District Court should have ordered the transfer and registration of the plot in his name and also that he should have been awarded general, special and exemplary damages (appeal no. 353/06). The defendants also appealed against the first-instance judgment (appeal no. 261/2006).
On 11 February 2009 the Supreme Court dismissed the applicant's appeal but upheld the respondents' appeal. It set aside the District Court's judgment and annulled the orders that had been issued.
B. Relevant domestic law
1. The Constitution
Article 30 § 2 of the Constitution safeguards the right to a fair trial. It provides as follows, in so far as relevant:
“In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. ...”.
2. Law Providing For Effective Remedies for Exceeding the Reasonable Time Requirement for the Determination of Civil Rights and Obligations (Law 2(I)/2010)
In order to ensure the effective protection/application at domestic level of the principle of the right to a trial within a “reasonable time” and to provide effective domestic remedies in relation to breaches of that right, Parliament passed the Law Providing For Effective Remedies for Exceeding the Reasonable Time Requirement for the Determination of Civil Rights and Obligations, Law 2(I)/2010. This Law entered into force on 5 February 2010 and applies to complaints concerning the length of proceedings in all civil and administrative cases.
The relevant parts of Law 2(I)/2010 provide as follows:
Preamble
“Whereas Article 6.1 of the European Convention on Human Rights and Article 30.2 of the Constitution of the Republic of Cyprus safeguard the right to determination of civil rights and obligations within a reasonable time,
And whereas in a number of individual recourses against Cyprus the European Court of Human Rights found violations of Article 6.1 of the Convention in that the civil rights and obligations of the applicants in civil cases and recourses had not been determined by the Cyprus Courts within a reasonable time as required by the above-mentioned Article and also found a violation of Article 13 in that there were no effective remedies in the Republic as required by Article 13 regarding the applicants' allegations of violation of the requirement of Article 6.1,
And whereas the Republic's obligation under Article 46 of the Convention to abide by the said Judgments of the European Court of Human Rights is being supervised by the Committee of Ministers of the Council of Europe and entails the adoption of measures preventing future violations as those found by the Court in the above-mentioned individual applications,
And whereas a number of individual recourses against the Republic are pending before the European Court of Human Rights for violation of Articles 6.1 and 13 of the Convention regarding determination of the applicants' civil rights and obligations in civil cases and recourses,
And whereas the Republic is bound by Article 1 of the Convention to secure the rights of the Convention including the right to effective domestic remedies for violation of the right to determination of civil rights and obligations within a reasonable time.”
Section 3 - Field of application and right to have recourse to legal proceedings to obtain remedies for violation of the right
“(1) This Law applies with regard to the violation of the right of persons to determination of their civil rights or obligations within a reasonable time in District Court or Supreme Court cases, whether they are pending at any stage at first instance or on appeal or have been concluded.
(2) A person who alleges that in a case to which this law applies his right to determination of his civil rights or obligations within a reasonable time has been violated has a right to have recourse to the legal proceedings provided for in the present Law for obtaining the remedies provided by it.
(3) Violation, in a court case to which this Law applies, of the right of a person to determination of his civil rights or obligations within a reasonable time and the granting of the remedies provided for in this Law for the violation, is determined by courts vested with competence under this Law.”
Section 4 - Actionable right
“The right to determination of civil rights and obligations within a reasonable time in a case to which this Law applies is actionable, and the person who alleges that he or she is a victim of a violation of the right may have recourse to the court with jurisdiction by way of action against the Republic by virtue of this Law, claiming the remedies for the violation provided for in this Law.”
Section 5 - Institution of action for violation of the right
“(1) An action under section 4 may be instituted for violation of the right in a case which has been concluded with a final court judgment concerning violation of the right at any stage of the case, including that of execution of a court judgment and irrespective of whether responsibility for the violation at execution stage rests on the judicial or any other authorities of the Republic. The action is instituted within one year of the date of completion of the case with a final court judgment or the date of the execution, as the case may be, unless the court considers that under the circumstances of the case it was not reasonably possible to institute the action within the above time-limit.
(2) An action under section 4 may also be instituted for violation of the right in a case concluded with a judicial decision before the date of entry into force of the present Law, or in which execution of a judgment given before the date of entry into force is pending, provided that the action is instituted within one year of the date of entry into force or the date of the execution following the entry into force of [this Law], as the case may be, unless the court considers that under the circumstances of the case the action could not reasonably be instituted within the above time-limit.”
Section 6 - Court with jurisdiction to examine action for violation of the right
“(1) Irrespective of the provisions of any other law, the court which is granted jurisdiction by this Law to examine and determine an action under sections 4 and 5 for a violation of the right to determination of civil rights or obligations within a reasonable time in cases which were concluded with the issuance of a final judicial decision are:
(a) in relation to district court cases, the administrative President of any District Court who, in a case in which, according to the action, the plaintiff's right to determination of his civil rights or obligations within a reasonable time has been violated, did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination, or in the event there is no administrative president who did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination, the next senior president of the district court or another judge who fulfils the above, as the Supreme Court may in the event designate.
(b) in relation to Supreme Court cases, three judges of the Supreme Court, as the Supreme Court may in the event designate.
(2) The judgment of the court with jurisdiction under sub-section (b) of paragraph (1)is final and is not subject to appeal.”
Section 7 - Right to examination of allegations of violation of the right in pending cases
“(1) Without prejudice to the right to institute an action under sections 4 and 5, a person who is a party in a pending case to which this law applies has the right at any stage of the proceedings whilst the case is pending to have recourse to the legal remedies provided for in sub-paragraph (2) in relation to the allegation that in the case his right to determination of civil rights or obligations within a reasonable time has been violated.
(2) For the purposes of sub-section (1) a party who alleges that there has been a violation of his right to determination of his civil rights or obligations within a reasonable time in a pending district court or Supreme Court case may at any stage of those proceedings have recourse by instituting an originating application against the Republic to the court with jurisdiction as provided by section 8 for the examination of the allegation and the granting of remedies for the violation provided for by this Law and for the issuance of a decision on these matters.
(3) the provisions of paragraphs (1) and (2) are applied also in relation to cases which were pending at any stage at the date of entry into force of the present Law.
(4) There is no suspension or adjournment of any procedure in a pending case by reason of an application made under this section or pending the conclusion of its examination.
...”
Section 8 - Court with jurisdiction to examine an issue of violation of the right in a pending case
“(1) Irrespective of the provisions of any other law, the court which is hereby granted jurisdiction to examine and determine an allegation and to grant remedies in an originating application under section 7 is:
(a) in relation to a district court case which is pending at that stage before a district court, the administrative President of any District Court who does not exercise duties at the court in which the case is pending and who did not participate in any stage of its examination, or in the event there is no administrative president who did not exercise duties at the court in question and did not participate in any stage of its examination, the next senior president of the district court or another judge who fulfils the above, as the Supreme Court may in the event designate.
(b) in relation to a district court case which is pending at that stage before the Supreme Court or to a Supreme Court case which is pending before the court in question at any stage, three judges of the Supreme Court, as the Supreme Court may in the event designate.
Provided that by virtue of this paragraph under this section judges of the Supreme Court who did not participate at any stage of the case will be designated.
(2) The judgment of the court with jurisdiction, under sub-section (b) of paragraph (1), is final and is not subject to appeal.”
Section 9 - Delivery of judgments
“In an action under sections 4 and 5 and in an originating application under sections 7 and 8, the court with jurisdiction gives judgment at the conclusion of the examination of the action or the application, as the case may be, or, in the event it reserves its judgment, it is to deliver it without delay.”
Section 10 - Representation of the Republic in actions and originating applications
“Actions and originating applications against the Republic under this Law are instituted against the Attorney-General of the Republic as defendant or respondent, depending on the case and the provisions of section 57 of the Courts of Justice Laws apply.”
Section 11 - Factors to be taken into account in cases brought for violation of the right
“The court, in order to determine whether there has been a violation of the right of the plaintiff or the applicant to determination within a reasonable time of his civil rights or obligations in an action under sections 4 and 5 and in an application under sections 7 and 8, takes into account –
(a) the total period during which the determination of the rights or obligations in the case is pending or has lasted, taking into account the date on which the case was lodged with the court, and also where relevant any preceding period,
(b) the nature of the case in which, according to the allegation of the plaintiff or the applicant, his right has been violated,
(c) the possible complexity of the case,
(d) the conduct of the plaintiff or the applicant in the proceedings of the case,
(e) the conduct of the judicial authorities at the various stages and processes of the case, including, where relevant, the execution procedures, and the prosecution of the case in the said stages and procedures,
(f) the conduct of other authorities of the Republic, where relevant, at the stage and procedures of execution, as well as at any relevant stage and procedures prior to the date the case was lodged with the court,
(g) any other factors taken into account by the European Court of Human Rights as relevant to the matter in issue as these arise from its relevant case-law on the subject.”
Section 12 - Remedies in actions and originating applications for violation of the right
“Where in an action under sections 4 and 5 or in an application under sections 7 and 8 the court considers that the right of the plaintiff or applicant to determination of his civil rights or obligations within a reasonable time has been violated, the plaintiff/applicant is entitled:
(a) to compensation for any pecuniary damage, loss, costs, and expenses proved to have been sustained on account of the violation;
(b) to compensation for non-pecuniary damage or injury suffered on account of the violation;
(c) to legal costs proved to have been incurred on account of the violation.
(2) For ascertaining the damage sustained on account of the violation as provided in sub-section (1) and assessing and awarding the compensation provided for under sub-section (1), the court takes into account the criteria and factors taken into account for this purpose by the European Court of Human Rights as they can be determined from its case-law in analogous cases of violation of Article 6.1 of the Convention, and the amounts of compensation awarded by the said Court in such analogous cases.”
Section 13 - Reference to the court records for examination of originating applications for the violation of the right in pending cases
“In examining an application made under sections 7 and 8 concerning the issue as to whether the applicant's right to determination of his civil rights or obligations within a reasonable time has been violated, the court exercises its judgment in relation to factors referred to in paragraphs (a)-(g) of section 11 after hearing the applicant and the Attorney-General of the Republic, by reference to the records of the proceedings and the contents of the file or files at first instance, or of any appeal of the case in which the applicant alleges that there has been a violation of his said right.”
Section 14 - Directions by the Supreme Court to accelerate proceedings in pending cases in which it has been decided that the right has been violated
“(1) Where in an application under sections 7 and 8 the court decides under the present Law that there has been a violation in a pending case of the applicant's right to determination within a reasonable time of civil rights or obligations, the said court transmits its judgment immediately to the Supreme Court.
(2) If the case concerning which the competent court issued its judgment and transmitted it to the Supreme Court under sub-section (1) is still pending, the Supreme Court issues such directions as under the circumstances it considers necessary to accelerate the procedure in the pending case, so as to prevent any continuance of the delay or any new delays, and avoid the possibility of continuation of the violation or new violations of the rights of any party in the pending case:
Provided that a judge or judges of the Supreme Court who had participated in any stage of the examination of the pending case shall not participate in the issuing of directions.
(3) Directions under sub-section (1) may include amongst other things-
(a) that the pending case be set down immediately for directions before the court, or for trial
(b) that pleadings which may not yet have been filed be so filed within deadlines specified in the directions,
(c) that the record of the proceedings be prepared;
(d) that costs which may have been awarded be subject to taxation
(e) that priority be given to the conduct of the hearing of the case or the hearing of any interim applications;
(f) that priority be given to the completion of any interim application procedures, or of other interim procedures,
(g) that priority be given to the delivery of a judgment reserved in the case or in an interim application,
(h) that priority be given to the completion by the judicial authorities of the execution procedures of a judgment given in the case to the extent that such authorities are involved.
(4) Directions under sub-section (3) for accelerating the procedure in a pending case are issued irrespective of the fact that the relevant judgment which has been transmitted may have been given in accordance with paragraph (a) of sub-section (1) of section 8, and/or has been appealed against by the Attorney General.”
COMPLAINTS
1. The applicant complained under Article 6 of the Convention about the length of the proceedings before the domestic courts.
2. The applicant further complained under the above provision about the fairness of the proceedings. In particular, he complained that the domestic courts had failed to consider his arguments and to conduct a proper examination of the evidence submitted before them; had not applied the relevant domestic laws correctly, and had not been impartial. Further, he claimed that the Supreme Court had failed to examine all his grounds of appeal.
3. The applicant also complained of a violation of Article 8 of the Convention. In this respect he claimed that the authorities' wrongful acts concerning the transfer and registration of the relevant properties had caused a lengthy and serious ongoing family dispute.
4. Moreover, the applicant complained that he had been deprived of the property which had been the subject matter of the domestic proceedings in breach of Article 1 of Protocol No. 1.
5. Finally, the applicant complained under Article 13 of the Convention that he had no effective remedy in respect of his property complaints and his complaints as to the fairness of proceedings.
THE LAW
A. First set of proceedings: civil action no. 478/90
The Court observes that the proceedings in civil action no. 478/90 ended on 10 March 1999 by way of a friendly settlement between the parties.
It follows that to the extent that the applicant's complaints concern these proceedings they are inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and that they must be rejected pursuant to Article 35 § 4.
B. Second set of proceedings: civil action no. 2370/00 and civil appeals nos. 353/06 and 261/06
1. Alleged violation of Article 6 of the Convention as regards the length of the proceedings
The applicant complained that the length of the proceedings before the domestic courts had been incompatible with the “reasonable time” requirement under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
In view of the entry into force of Law 2(I)/2010, the Court must first determine whether the applicant has complied with the rule of exhaustion of domestic remedies as required by Article 35 § 1 of the Convention.
a. General principles established under the Court's case-law
The Court reiterates that by virtue of Article 1 (which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is reflected in Articles 13 and 35 § 1 of the Convention (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 XI).
The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has close affinity), that an effective domestic remedy is available in respect of the alleged breach of an individual's Convention rights (see Kudła, cited above).
Nevertheless, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198; Dalia v. France, 19 February 1998, § 38, Reports of Judgments and Decisions 1998-I, and Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see Selmouni, cited above, § 75). However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others v. Turkey, 16 September 1996, § 71, 1996 IV; Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, § 37; and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX).
b. Assessment of Law 2(I)/2010 in respect of concluded or pending proceedings
It should be noted that under section 3 of Law 2(I)/2010, the new remedies available in Cyprus since 5 February 2010 may be used by a party to civil and administrative proceedings, whether they have been concluded or are still pending at any stage, namely at first instance or on appeal.
Pursuant to the above section, one is entitled to lodge a complaint about a breach of the right to determination of civil rights and obligations within a reasonable time at any stage of the proceedings or following their conclusion. Under section 4, the aforementioned right is actionable, and anyone who alleges that they are a victim of a violation of the right may bring an action against the Republic seeking remedies. According to section 5 (1) such an action may be instituted within one year of the date of the final court judgment or the date of the execution of that judgment, as the case may be. Section 5 (2), however, a transitional provision, provides that in cases which were concluded with a final judgment before the date of entry into force of the law, the one-year limitation period is set in motion on the date of entry into force of the Law or the date of the execution following the entry into force of the Law. In both cases, the court with jurisdiction has the discretion to accept an action lodged following the expiry of the time-limit if it considers that it had not been reasonably possible to institute the action within the one-year limitation period.
In so far as proceedings pending at first instance or on appeal are concerned, Law 2(I)/2010 provides a party to the proceedings with the opportunity to submit an originating application against the Republic at any stage of the proceedings, complaining of a breach of his/her right to a trial within a reasonable time (Section 7). This also applies to cases which were pending at the date Law 2(I)/2010 entered into force. Such an application, however, does not have a suspensive effect on the main proceedings (section 7 (4)); these proceedings therefore will continue, pending the determination of the application. Section 14 provides that in the event of a finding of a violation, the competent court should transmit its judgment to the Supreme Court, which is empowered to issue directions for the acceleration of the proceedings.
Actions and applications brought under Law 2(I)/2010 are to be determined by a judge or judges, as the case may be, who did not participate in the proceedings of the case for which the complaint is made (sections 6 and 8). In addition, in so far as district courts are concerned, the President of the District Court deciding on the action or the application made under Law 2(I)/2010, should not have exercised duties at the court in which the proceedings in the case took place or are pending (sections 6 and 8).
Furthermore, section 12 provides that, in the event a breach is found, the plaintiff may be awarded just satisfaction for any pecuniary and non-pecuniary damage sustained as well as legal costs that have been proved to be incurred on account of the violation.
The Court reiterates that it has given certain indications in the Scordino judgment (cited above, §§ 182-189) as to the characteristics which effective domestic remedies in length-of-proceedings cases should have. In this connection, it notes that the purpose of the new domestic remedies under is twofold.
Firstly, an originating application under sections 7 and 8 is mainly designed to obtain acceleration of pending proceedings. The Court also reiterates that it has stated on many occasions that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time. Where the judicial system is deficient in this respect, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution (see Scordino, cited above, § 183).
Secondly, Law 2(I)/2010 provides for the possibility of an action being brought once proceedings have been concluded, or for an application to be made while the proceedings are pending, seeking a finding of an infringement of the “reasonable time” requirement and compensation in this respect. A compensatory remedy is, without doubt, an appropriate means of redressing a violation that has already occurred. According to the Court's recent case-law, a combination of two types of remedies, one designed to expedite the proceedings and the other to afford compensation, seems to be the best solution for the redress of breaches of the “reasonable time” requirement (see Scordino, cited above, § 186).
Finally, as is evident from section 11 of Law 2(I)/2010, in assessing the reasonableness of the length of proceedings, the domestic courts are required to look at a number of the criteria established by the Court's case-law, such as the complexity of the case, the applicant's conduct and that of the competent authorities, (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Frydlender v.France [GC], no. 30979/96, § 43, ECHR 2000-VII).
That being so, the Court is satisfied, in view of the legislative provisions as they stand, that the aggregate of remedies provided by Law 2(I)/2010 in cases of excessively long proceedings in civil and administrative cases that have been concluded or are pending at first instance or on appeal is effective in the sense that the remedies are in principle capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that has already occurred.
c. Exhaustion requirement in respect of applications lodged prior to the entry into force of Law 2(I)/2010
It is true that the present application was lodged before Law 2(I)/2010 came into force and that consequently, at the time when the applicant first brought his complaint to the Court, he did not have an effective remedy available in domestic law in respect of the length of proceedings in issue.
In this connection the Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001).
The Court considers that there are several factors which favour an exception to this general rule in the instant case.
It observes in particular that excessive length of proceedings, in particular civil proceedings, has been a problem in the national system which has been characterised by the Committee of Ministers as being of a systemic nature (decision of the Committee of Ministers in their 1035th human rights meeting of 17 18 September 2008 concerning the state of execution of twenty judgments against Cyprus in respect of length of civil proceedings). The Court notes in this respect that a considerable number of the applications lodged every year with the Court against Cyprus concern claims of violations of the “reasonable time” requirement for both pending and concluded domestic proceedings. The Court has adopted a significant number of judgments finding a violation of this requirement. In certain of these cases the Court has also found a breach of Article 13 of the Convention due to the lack of an effective remedy in domestic law in respect of length-of-proceedings complaints. Further, a noteworthy number of cases have been struck out, either on the basis of friendly settlements or on the basis of unilateral declarations in which the Government have acknowledged the fact that there was no “effective remedy” at the applicants' disposal (see, inter alia, Constantinou and Others v. Cyprus (dec.), no. 3888/06, 17 September 2009; Facondis v. Cyprus (dec.), no. 9095/08, 27 May 2010; and Televantou v. Cyprus (dec.) 29512/08, 27 May 2010).
Moreover, the Court notes that the purpose of the remedies introduced by Law 2(I)/2010 is precisely to enable the authorities of the respondent State to redress breaches of the “reasonable time” requirement at domestic level and consequently to reduce the number of applications for the Court to consider. That is true not only of applications lodged after the date on which Law 2(I)/2010 came into force, but also of those which were already on the Court's list of cases. This is evident from section 5 (2), which provides that a complaint may be lodged before the national authorities even if the proceedings in question had been concluded before the Law's date of entry into force. It is therefore designed to bring within the jurisdiction of national courts all applications currently pending before the Court.
The Court has already decided on several occasions, when Contracting Parties have adopted legislative measures in order to comply with the “reasonable time” requirement under Article 6 § 1 of the Convention, that applicants should exhaust such remedies notwithstanding the fact that their applications had been lodged with the Court prior to the enactment of the legislation in question.
Thus, the Court has held that applicants in cases against Italy which concern the length of proceedings should have recourse to the remedy introduced by the “Pinto Act” (see, for example, Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR 2001-XII, or Brusco, cited above). A similar decision was taken in respect of cases brought against Slovenia, Croatia, Slovakia and Poland following legislative changes (see Korenjak v. Slovenia (dec.), no. 463/03, 15 May 2007; Michalak v. Poland (dec.), no. 24549/03, 1 March 2005; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII; and Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX). The Court considers that the position as regards the present application is similar in substance to the above-mentioned cases.
d. Application to the proceedings in the present case
The Court notes that the impugned civil proceedings terminated on 11 February 2009, the date the Supreme Court gave judgment on appeal. Consequently, in view of the provisions of section 5 (2), it is still open to the applicant to avail himself of the remedies afforded by Law 2(I)/2010 by Law, which the Court has found to be effective.
It is true that no long-term practice of domestic authorities applying the law can be established at this time. However, it is clear that Law 2(I)/2010 was specifically designed to address the issue of the excessive length of proceedings before domestic courts and there is no reason to doubt its effectiveness at this stage. However, the Court's position may be subject to review in the future and the burden of proof as to the effectiveness of the remedies in practice remains with the respondent Government.
The Court draws attention to the general obligation of Contracting States to solve the structural problems underlying violations (see Broniowski v. Poland [GC], no. 31443/96, § 191, ECHR 2004 V). Particular attention should therefore be paid by the national authorities to ensuring that Law 2(I)/2010 is applied in conformity with the Convention both as far as future case-law is concerned (see Scordino, cited above, §§ 190-192) and as far as the general administration of justice is concerned.
In view of the foregoing considerations and given that the opportunity to use the new remedies extends to the applicant in the present case, as well as to all other applicants who have submitted similar complaints as to concluded or pending proceedings under Article 34 of the Convention in respect of Cyprus, the Court finds that the applicant is required by Article 35 § 1 of the Convention to make use of the remedies available to him under Law 2(I)/2010 with effect from 5 February 2010.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Remaining complaints
In so far as the applicant's remaining complaints under Articles 6, 8 and of the Convention and 1 of Protocol No. 1 are concerned, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Christos Rozakis
Deputy Registrar President